Over the last several days, it seems the 45th President of the United States has been hellbent on self-destructing. Two weeks ago, for instance, news headlines focused on the president’s efforts to influence Attorney General Sessions’ decision on whether Sessions should recuse himself on matters pertaining to Russia’s influence on the 2016 election. https://www.nytimes.com/2018/01/04/us/politics/trump-sessions-russia-mcgahn.html?_r=1 ; https://www.washingtonpost.com/world/national-security/at-trumps-behest-top-white-house-lawyer-urged-jeff-sessions-not-to-step-aside-from-russia-probe/2018/01/04/0636878e-f1c3-11e7-b390-a36dc3fa2842_story.html?utm_term=.0d3c347992aa. Then just a few days ago, on the eve of the Martin Luther King Holiday, Trump, without shame or a modicum of decency, allegedly went out of his way to assert people from El Salvador, Haiti, and all African Countries come from “Shithold Countries.” http://www.cnn.com/2018/01/11/politics/trump-rock-bottom/index.html (evidently, there is now some debate whether Trump used the term “shithouse” versus “shithole”).
While the purported influencing Attorney General Sessions led some to question its legality, it is Trump’s tirade over immigration that has rightfully led to universal condemnation from all but the most deluded or biased. The attendees of that the meeting included Sens. Dick Durbin (D-Ill), Lindsey Graham (R-S.C.), Tom Cotton (R-Ark.), David Perdue (R-Ga.), House Majority Leader Kevin McCarthy (R-Calif.), and Reps. Bob Goodlatte (R-Va.) and Mario Diaz-Balart (R-Fla.). It nevertheless remains disheartening some of these witnesses who happen to be our elected leaders in Congress, have been unhelpful in addressing the matter. They either do not recall the inflammatory statements (Senators Cotton’s and Perdue’s initial joint statement; which is unbelievable). This is especially so when one considers that these same fine leaders subsequently on separate interviews denied that the statement was made (Senators Perdue and Cotton). So, evidently, Perdue and Cotton initially claimed they did not recall Trump’s statements, but just two days later on separate SUnday morning news programs miraculously recalled everything about the meeting, and denied Trump ever made the statements. See, e.g., http://abcnews.go.com/Politics/republican-senator-asserts-trump-hole/story?id=5232777 . These actions are particularly troubling in light of a recent Associated Press report that Trump spent Thursday evening calling his allies to gauge their reaction to the firestorm he created, while at the same time refusing to apologize for making the statements. http://us.pressfrom.com/news/politics/-112543-confidant-trump-defends-vulgar-immigrant-comments/ . Showing similar principle and leadership, three other representatives that were at the meeting refused to address the matter (Representatives Diaz-Balart, Goodlatte, and McCarthy ), which of course demonstrates great courage and moral vision on their part. It is unclear which is worse, one willing to have questionable memory, one willing to change recollection at moment’s notice, or being unwilling or somehow unable to comment on an alleged outrageous act?
Despite all of these salacious and sad events, the arguably most significant development in recent days is one that has not raised much attention, but may very well be a key a bit of evidence in the impeachment of Donald Trump. A little over a week ago, on the same day headlines were focusing on Trump’s purported efforts at influencing Sessions, handwritten notes from President Trump’s former chief of staff, Reince Priebus, confirm Trump talked to former FBI Director James Comey to urge Comey to say publicly that Trump was not under investigation. https://www.nytimes.com/2018/01/04/us/politics/trump-sessions-russia-mcgahn.html . Priebus’ notes thus confirm important aspects of Comey’s account of Trump’s inappropriate pressuring of Comey to end the Russia investigation. These notes add further credibility to Comey’s testimony, as well as his contemporaneously drafted memoranda, and Comey’s comments to FBI colleagues concerning Trump’s actions. What is particularly powerful about these notes is that they were written at the time of the purported inappropriate acts, and they were written by a member of Trump’s staff, his chief of staff.
As an attorney, one is always troubled by factual accounts that can lead to a “he said, she said” dilemma. Such scenarios may naturally lead a fact finder to not know which side to believe, leaving a prosecutor or other attorney with the burden of proof with a failure to prove his or her case. In an ideal world, an attorney would love to have public admissions from the alleged maker of the wrongful statements. Short of an admission in a court record or other recorded setting, an attorney could benefit from testimony from multiple witnesses. These forms of evidence are missing in the potential obstruction of justice aspect of the Mueller investigation concerning Trump’s effort to pressure former FBI Director Comey to terminate the Russia investigation. Where Comey’s account of the events tend to be more believable stems from Comey’s contemporaneous written notes of what Trump said as well as Comey’s contemporaneous reporting of these events to colleagues at the FBI. These facts tilt in favor of finding Comey’s account. However, in a federal criminal case, the burden of proof is much higher than tilting the evidence in one party’s favor—the evidence must establish guilt beyond a reasonable doubt.
However, the Mueller investigation may never lead to a federal criminal case, as it remains a subject to debate whether a sitting president can be prosecuted for a crime. Thus, the likely legal arena to address this matter will be through the impeachment process. This process is a political one, and the burden of proof will likely be much lower than a criminal case. Yale Law professor Charles Black Jr. who had published “Impeachment: A Handbook” in 1974. Black proposed an “overwhelming preponderance of the evidence” as a suggested mid-level standard for impeachment cases. http://salclaw.co.ke/standard-of-proof-in-impeachment-proceedings/ . This is where Priebus’ notes are particularly telling and persuasive in a case against Trump because the notes come from Trump’s side, or team so to speak, and confirm Trump’s efforts influencing Comey. While Priebus was subsequently fired from Trump’s staff, there was no reason to believe, at least from what the public knows thus far, to think the president’s chief of staff at the time would ever take inaccurate notes concerning what the president said. It would simply not be in Priebus’ interest as chief of staff for him to do so. These notes, while perhaps not as good as a recorded admission against interest, they are almost as good. If Priebus additionally provided testimony concerning further efforts to pressure Comey, this would obviously bolster the case against Trump.
In any event, Priebus’ notes alone corroborate other aspects of Comey’s testimony and accounts, and make them become all the more credible. These notes may very well also help explain the urgency Trump had for Sessions to not recuse himself from the Russia investigation, especially when one considers the reports that Trump had mentioned how former Attorney General Eric Holder protected President Obama; Trump evidently misguidedly believed the Attorney General of the United States is the president’s personal attorney. Moreover, the likely testimony coming from the two Trump aides Mike Flynn and George Papadopoulos will in all probability prove telling, otherwise the FBI likely would not have offered such a fairly minor charge of lying to the them as the basis for the plea deals. There is also likely considerable additional evidence stemming from this investigation. The above can only be bolstered if former campaign manager Paul Manafort and Trump aide, Rick Gates, are ultimately convicted of money laundering, or if either or them or both enter into plea deals for their testimony against others associated with the Trump campaign or current staff. This possibility will turn on how quickly those cases can be resolved—delays here will obviously favor Trump.
In the end, the matter will likely turn on the impeachment process. This process one must recall is a political one. And if members of Congress who purportedly witnessed the president making outrageous racist comments either do not recall, some subsequently deny the statements were made, and others refuse to comment, such behavior should not leave us believing the republican-controlled Senate and House of Representatives will ever act to impeach President Trump. Then, the entire investigation against Trump and his aides, and others may turn upon the Democrats’ success in the 2018 mid-term elections. This means an impeachment process, if the evidence convinces Muelller’s team to recommend charges will only likely occur until sometime in 2019. This of course may be affected by Trump himself and his repeated attempts to Tweet or speak himself into further trouble. How much will it take for he Republicans leadership? I wouldn’t hold my breath.