A decade ago, I had occasion to evaluate Jim Comey’s credibility. In fairness to President Trump, his former FBI Director has a flair for the dramatic. Back then, the bit of exaggeration brought smiles to the faces of those who knew Mr. Comey well. It was his nature and it could be a bit exaggerated.
The times are less humorous now, and one purpose for this column is to refute any suggestion that Mr. Comey’s Hollywood style subtracts from his integrity, then or now. Mr. Comey wants the best outcome for his country, even as he sometimes is like the boyscout leading a blind pedestrian into a heavily trafficked intersection only to insist that they both stay in place when the “don’t walk” signal lights up.
Ten years ago as I recounted in the Washington Post, the issue was whether or not the foreign intelligence surveillance act was the sole source of authority for the president to undertake surveillance post-9/11. It was a contested issue within the Department of Justice and there was no obviously right answer at the time. Mr. Comey decided to take the narrow view of the president’s authority while the White House counsel thought otherwise. The office of legal counsel occupied a middle ground. It was an important, but largely lawyers’ dispute. Mr. Comey had been given temporary custody of the department while Atty. Gen. Ashcroft had a surgical procedure. White House counsel thought that Ashcroft had recovered enough to retake his authority and rule in favor of the president’s authority. Mr. Comey rushed to the hospital, and in super-hero demeanor, claimed to snatch the pen out of John Ashcroft’s hand. Well you get the idea. It made for a good script, but it also overstated the nature of the internal disagreement which was ultimately resolved with the Congress.
In the present matter, the president has bragged to his Russian friends that James Comey was a “nut job,” a “showboat” and a “grand-stander.”
Mr. Comey is none of the above. He certainly is not a nut job and the nature of his testimony this time around reveals the extent to which the president has disregarded constitutional limits on executive power Comey is in this instance an important part not of a show, as in an entertainment, but a scrupulous showing of our continued commitment to the rule of law.
President Trump thought he was entitled to Mr. Comey’s unquestioned loyalty. If Mr. Comey somehow failed to perceive what that loyalty pledge entailed, Trump made the point explicit by suggesting that Mr. Comey’s continued service as FBI director would depend upon his fealty. In particular, it would depend upon the FBI director letting Mr. Flynn off the hook, and Comey making it widely known that Mr. Trump was not a target of the investigation.
Mr. Comey was an experienced prosecutor and high-ranking member of the Department of Justice before becoming FBI director. Unsurprisingly, Mr. Comey documented the number of times and manner in which Mr. Trump put Inquiries about Mr. Flynn or himself to him. Now these conversations between Trump and Comey about an open active investigation are wholly improper, contrary to every conceivable Department of Justice guideline, and suggestive of criminal activity that could possibly fall within the headings of intimidation, bribery and of course obstruction. The actual firing of Mr. Comey for his dogged pursuit of Trump-Russian collusion seems its own confirmation of wrongdoing — especially as the president first had his staff give him a proper rationalization for the firing, which the president, against his own interests, later disavowed.
However, as serious as those potential crimes are, and If proven, as impeachable as they may well be, they understate an even greater wrongfulness. Pres. Trump both seems to lack all appreciation for constitutional restraints upon presidential power and he has this curious habit of being especially unmindful of the limits of his authority when he is playing up to Russian interests
On more than one occasion Pres. Trump has stated or hinted that his authority is unquestionable and absolute. Here, one recalls Pres. Trump chasing American reporters out of his office and even excluding the vice president and others from his meetings with the Russian Foreign Minister and Russian ambassador. Meetings which apparently included Pres. Trump’s offhand disclosure of classified information that was code word protected at the highest levels.
Mr. Trump may still think of himself as the CEO of a business organization or a make-believe employer on a television program who can fire people at will. Neither role is a good model for the presidency of the United States. Not surprisingly, a person who claims to exercise absolute power does not readily understand how his own actions can be subject to question, let alone an investigation and possible legal penalty. For this reason alone, the president should step aside, take a leave of absence, and return only when and if his name is fully cleared. As I have outlined, this is what the 25th amendment envisions.
And so it was, Pres. Trump asked Mr. Comey repeatedly as to whether or not he was a target of investigation. The answer recounted by Mr. Comey gives his portrayal of the presidential inquiry particular credibility. This is because Mr. Comey did not put himself in the best light, but rather was a bit disingenuous.
The best answer would’ve been: “Mr. Pres., you as the person under our Constitution charged with taking care that the laws are faithfully executed must know that such faithful execution requires that law enforcement be as free from partisan or political influence as possible. For this reason, it is improper for me to answer that question and I won’t.” The Jim Comey I knew 10 years ago would have likely claimed that ideal for himself, as he did in his bedside claim of saving the Republic from an unauthorized extension of the gathering of foreign intelligence back in 2007. Instead, Comey confesses to responding that the president was not personally under investigation.
Mr. Comey likely knew the president would misunderstand the adverb and view the answer as a form of exoneration. Indeed, the president’s repeated requests that Comey spread the word or get the word out that the president was not under investigation was requested several times. Mr. Comey did not bend, and he escaped an awkward moment with a president who doesn’t understand the limits of his office.
Some will say that Mr. Comey learned some things as a consequence of his public fall from grace for discussing at length —contrary to departmental practice — his decision not to pursue the prosecution of Mrs. Clinton for her email habits, even as he described them as “reckless.”
What Mr. Comey did not share was that stating that the president was not then personally under investigation, meant only at that moment, and did not rule out the investigation of his businesses or his campaign.
The present matter is frequently compared to Watergate. There is no meaningful comparison. Watergate, as it has been described, was a second-rate burglary necessitating the threat of impeachment only because of a presidential cover up of a dirty tricks campaign that was undertaken in favor of Richard Nixon largely without his knowledge. Watergate does not implicate a foreign nation’s interference with expression of democratic choice and it certainly did not contemplate that the president of the United States would see his responsibilities as subordinate to the advantages he might receive from the interfering nation.
There is one commonality between Watergate and Trumpgate, and it is the likelihood that the president will readily jettison staff to save himself. Before the investigation ends, I predict that Mr. Trump will throw most everyone who doesn’t resign under the bus. In this respect, his defense of Mr. Flynn seems anomalous. But trying to cover up Mr. Flynn’s lying to the vice president, and to the American people when Flynn apparently failed to properly report his Russian payments is simply to come too close to Mr. trump himself. Indeed, in keeping with his nature, Trump’s gesture of support for Mr. Flynn’s conversations with Russian nationals might be seen by Trump as a useful bit of misdirection. Mr. Trump very much wants us to see the trees (Flynn’s or even Session’s failure to disclose on government forms), but not the forest (The treasonous aiding a foreign nation to the disadvantage of your own).
The forest was and is the extent to which Donald Trump can be shown to be a cultivated Russian sympathizer. The evidence for that is not yet on the table. One can pray, certainly I can pray, that that evidence not be there for it will bring a magnitude of stain and disrepute to the presidency that has been absent in our history. Yet, we cannot turn away. We must count on special counsel Mueller to ascertain the extent to which Donald Trump was prepared to sell out his country in exchange for a favorable loan from a Russian operated bank, the VEB bank, or was prepared to accept either directly or indirectly an interest in Russian natural gas and oil refineries, and most worrisome of all, the extent to which the president is prepared to abandon traditional allies who share and practice policies that honor human dignity in favor of closed authoritarian regimes.
Mr. Trump seems oblivious to the rule of law, but like others suspected of wrongdoing, he is entitled to constitutional protections == even those that his own actions may denigrate. That is the genius and strength of our democratic Republic, and the President is entitled to its protection even if he lacks understanding of it. Nevertheless, Mr. Trump might wish to give special notice to the one crime that is defined rather specifically in the text of the Constitution.
Treason is defined in the Constitution as levying war against the United States or adhering to the enemies of the country by giving them aid and comfort. The Constitution explicitly provides that no one can be convicted of the crime unless there are two witnesses willing to testify to the same overt act or unless the person confesses in open court. Mr. Trump’s lawyers have been right to advise him against twittering since it will form the basis of some evidence of intent. Pres. Trump can thank the founders however that they were particularly careful about the crime of treason since the assertion of it was regularly and wrongfully undertaken by the King against those who merely objected to his policies. It is the “giving aid and comfort” element that needs to be addressed in the case of Mr. Trump. This key phrase has been judicially defined as an intent to advance the interests of our enemy.
Did Mr. Trump have this intent?
The evidence is not yet presented, and discovering what Mr. Trump thought he was undertaking in his interactions with Russia is thus the central core of the special counsel’s responsibility.
The inquiries of the Senate and House committees should be capable of being coordinated with this effort. Certainly, the Senate intelligence committee deserves better answers than those given by Mr. Coats, Adm. Rogers, and Deputy FBI Director McCabe. Somehow these gentlemen all made the false assumption that it was expected and proper practice to keep conversations with the president private. No gentlemen, this is not a garden party or neighborhood news spoken across the backyard fence. The president does not have the benefit of your sensibilities, he has a narrow grant of executive privilege which is his, not yours, to assert. In addition, such assertion is limited to the protection of military or national security secrets or to a lesser extent open investigations, but not to hide criminality or wrongdoing. The Senate and the people of the United States deserve your answer in public session.
And there is no reason to see the Mueller effort and the House and Senate committee work in conflict.There is much work for Mr. Mueller to do without tripping over the work of House and Senate committees whose purpose in holding hearings is not to identify the facts underlying a possible impeachable offense, but to consider whether new legislation is needed in light of the facts ascertained.
But again, the central question needing answer is: Has Mr. Trump betrayed our national interests or put them second or third behind the interests of Russia or Mr. Trump’s desire for the greater accumulation of wealth contrary to the domestic and foreign emoluments provisions of the Constitution? This is the question that we look to the special counsel to answer. The answer to this question will reveal whether or not the United States is effectively being governed by the people of the United States or by another nation that does not wish us well.
As a last resort to cover his venality, Mr. Trump will no doubt argue, as he did with some plausibility in the campaign, for the proposition that Russia should not be thought of as an enemy, but merely as a nation with which we could strike a better deal or do business. No one should be misled by this argumentation, as Mr. Trump has made it clear that he has zero interest in setting aside national boundaries and observing the universal rights of all men and women. However, as matters stand, the United States and Russia are not merely two different landmasses, but two nations standing for wholly different ideologies – one committed to the protection of human right and the other the pursuit of raw power.
Mr. Comey’s testimony is troubling enough for the likely obstruction of justice it reveals. Yet, sadly, it is too late in the day not to see that domestic criminality is but a single tree that is very likely representative of an extremely dark forest through which we need to navigate.
To keep us on the main path, here are some suggested questions to which Mr. Mueller might seek answer so we do not lose our way:
1. Does the special counsel’s investigation confirm the “high confidence” of the intelligence community that Russia was responsible for hacking the Democratic Party’s private emails?
2. To what degree did Russia use WikiLeaks as its primary means to deploy the hacked materials?
3. Did Donald Trump or the Trump campaign have knowledge that the hacked materials being released by Wiki-leaks against Mrs. Clinton were hacked by Russia or Russian operatives?
4. Did Donald Trump or the Trump campaign approve, know of, or in any way assist in the release or distribution of the materials hacked by Russia?
5. To what degree does the Christopher Steele (a former UK intelligence officer) series of memoranda accurately reflect that Russia treated Donald Trump as a “cultivated” person for a period of years prior to the 2016 election?
6. To what degree does Russia hold materials that could compromise Pres. Trump or subject him to blackmail?
7. Has Donald Trump promised to modify US foreign or domestic policy, including the lifting of economic sanctions against Russia or Russian nationals, in exchange for benefits to himself personally or to his businesses?
8. Did Donald Trump or members of the Trump campaign receive funding directly or indirectly for business, political or any other purpose from Russia?
9. Did Donald Trump or members of the Trump campaign ever solicit or negotiate for a stake in the Russian natural resource company, Rosneft, in exchange for the Russian desired modification of economic sanctions? Did Donald Trump or members of the Trump campaign discuss financing for Trump real estate projects with the Russian government’s VEB bank or any other Russian financial institution?
10. Was Michael Cohen, the personal lawyer to Donald Trump, tasked with engaging in a cover up of Russia’s involvement in the 2016 campaign? Relatedly, did Donald Trump or the Trump campaign ever contribute to a fund to buy the silence of the actual hackers?
In sum, Comey is believable;
Comey has established a prima facie case of obstruction, but sitting presidents cannot be indicted; and given the support Trump retains among “his core” — the working families of America — a prima facie case of obstruction — even when recounted by a public servant who can hold our attention longer than Kevin Spacey in a “House of Cards” is just not enough to impeach.
Comey’s testimony is devoid of what his investigation had thus far ascertained with respect to Trump-Russian collusion, but thanks to a vigilant press, the dots are multiplying, and if Robert Mueller is as good as he is reputed to be, those dots will soon be connected.
If Mueller’s connected dots point to Trump and his campaign knowing that the Russians were the source of the stolen materials posted by Wiki-leaks, then Trump’s foreign sympathies and his knowing participation in the use of Russian-stolen materials to defeat Mrs. Clinton should disqualify him from spending a single additional minute bearing the power and duty of the President of the United States.
In other words, Michael Pence of Indiana may be our nation’s “designated survivor” — no embellishment needed or wanted — only a workable government that will take governing, and not just investigating, seriously.
We are demonstrating that our constitutional Republic retains the capability to address modern challenge, especially that of bullies in closed societies.