Tag Archives: Comey

Sessions’ Testimony Evaluated – Part 1

Given the speed with which events overrun, and overwrite, memories, I am going to devote a lot of words to the testimony of Jefferson B. Sessions III, attorney general of the United States, before the Senate Select Committee on Intelligence on June 13, 2017. This analysis is based on the transcript of the hearing published at http://politi.co/2rtgQJf with correction of obvious typos. A full evaluation is going to require multiple posts, so please bear with me. I think this worth doing because of the gravity of the issues raised.

Note at the outset one unusual feature of the hearing that distinguishes it from normal investigative legal work: both Chairman Burr and Vice Chair Warner go on at some length to detail the areas of inquiry, including specific questions they intend to ask the witness. This is part of the politesse of the political process that deters the kind of relentless interrogation that true investigative work involves. This was well illustrated when Senator McCain leapt into action to alert the Chairman that Senator Kamala Harris was being too aggressive in her very lawyer-like cross-examination of Sessions about the nature of his preparation, or lack of it, for testifying.

Also of special interest was Warner’s commendation of the Chairman about his remark at the end of the Comey hearing the week before that, given the “pattern of administration officials refusing to answer public, unclassified questions about allegations about the president in this investigation,” it was “not acceptable for [witnesses] to come forward without answers.” Later, Sessions would refuse to answer multiple questions on the grounds that the President should be given a prior opportunity to invoke Executive Privilege regarding answers to questions involving conversations with him and any member of the Cabinet and, likely, any member of White House staff.

Sessions’ opening remarks asserted that he did not remember what would in all events have been a casual contact with Russian Ambassador, and known Russian spy, Sergey Kislyak because they were both invited to Trump’s first foreign policy speech preceded by a private reception for perhaps two dozen people. This description is not implausible in the context of Washington political processes, but the question, not asked by any Committee member, was why was the Russian Ambassador invited in the first place to this small private and exclusive gathering that was attended by Trump himself, however briefly?

Sessions then undertook to address his response to Senator Franken during the AG’s confirmation hearing. The exact question posed, after a short recital of current press reports, was

if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign, what will you do?”

Sessions never answered that question. Instead, he said:

Senator Franken, I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign and I didn’t have — did not have communications with the Russians, and I’m unable to comment on it.

During his Intelligence Committee testimony, Sessions entered a sweeping denial of any discussions with anyone about campaign interference, and a flat denial of knowledge of such conversations by anyone else in the Trump campaign organization. This he remembered quite clearly. Then, referring to Senator Franken’s question about then-current press reports, Sessions said:

That was the context in which I was asked the question and in this that context my answer was a fair and correct response to the charge as I understood it. I was responding to the allegation that surrogates had been meeting with Russians on a regular basis. It simply did not occur to me to go further than the context and to list any conversations that I may have had with Russians in routine situations as I had many routine meetings with other foreign officials.

On its face this is not a completely implausible explanation. However, there are other relevant facts that raise questions about plausibility.

Sessions was sworn in as Attorney General on February 9. His testimony maintained that until his formal recusal on March 2, a period of three full weeks, he received no information or briefings related to the Russia investigation other than discussions related to press reports that might bear on the need to recuse himself.

But, most curiously, Sessions expressly denied that his recusal had anything to do with possible campaign wrongdoing. Instead, he claimed his recusal was based entirely on a federal regulation, 28 CFR § 45.2, that forbids a DOJ employee from participating in a criminal investigation of an organization if the employee had a personal relationship with the target. A waiver is possible if the employee’s superior makes certain findings but there was no chance of a legitimate waiver for Sessions who stated he believed the regulation “required” his recusal. Sessions then declared that such a recusal could nevertheless not be allowed to stop him from running the Department of Justice and, therefore, he acted properly in presenting to the President

my concerns and those of Deputy Attorney General Rod Rosenstein about the ongoing leadership issues at the FBI as stated in my letter recommending the removal of Mr. Comey along with the Deputy Attorney General’s memorandum on that issue…. Those represent a clear statement of my views. I adopted Deputy Attorney General Rosenstein’s points he made in his memorandum and made my recommendation. It is absurd, frankly, to suggest that a recusal from a single specific investigation would render the attorney general unable to manage the leadership of the various Department of Justice law enforcement components that conduct thousands of investigations.

This statement raises more fundamental questions that were never addressed by the Committee.

First, if, as Sessions claims, the recusal was based solely on the “campaign relationship” issue covered by the regulations, why did it take three full weeks for him to recuse himself? The governing regulation is only a few paragraphs and is very explicit. The President was reportedly furious about Sessions’ recusal and tweeted about it. What went on during that three weeks?

Second, whatever the asserted reason for the recusal was, if the recusal was from the Russia investigation, defined as the question whether there were inappropriate/unlawful contacts between the Trump campaign and the Russians, being led by FBI Director Comey, how can Sessions, in the guise of managing the Department of Justice, justify recommending the firing of the person heading the investigation? Sessions appears to believe that he is free to do anything he chooses in the Russia investigation because his recusal was based on something other than his interactions with “representatives” of the Russian government. It is difficult to imagine a court accepting such twisted reasoning which effectively vitiates the recusal as regards anything related to the Trump-Russia investigation.

This concludes consideration of Sessions’ direct testimony. In the next installment, I will take up the questioning by the members of the Senate Intelligence Committee.

Voice from the Past Trying to Tip the Scale?

Call me paranoid if you like, but the publication of a think-piece by Kenneth Starr leaves me more than a little disturbed. The article is entitled “Believe in the process” in the published Washington Post of June 16, 2017 and as “Firing Mueller would be an insult to the Founding Fathers” in the online version of the Post. http://wapo.st/2rDNAja

Starr, you may recall, was U.S. Solicitor General for President Bush (41) and served as independent counsel investigating various aspects of the Clinton presidency. His story can be seen at https://en.wikipedia.org/wiki/Ken_Starr.

Starr’s observations in the Post start off well enough, arguing that “the process, untidy and rancorous as ever, is actually working well” and that we need to “step back” and let the government finish its work. Referring to the present special prosecutor, Robert Mueller, Starr states the obvious: “the president would be singularly ill-advised to threaten, much less order, Mueller’s firing.” Starr adds that “Wisdom counsels strongly against unleashing a 21st-century version of the Saturday Night Massacre of Watergate-era infamy.”

Then, a funny thing happens. In what looks to me like a subtle attempt at gas-lighting. Starr writes:

Certainly, if Mueller wanders outside the bounds of professionalism and basic integrity, he can and should be fired. Concerns are already being raised – including about Mueller’s friendship with Comey and his staff-packing with anti-Trump partisans. He will be closely watched.

Maybe I missed it, but I haven’t noticed any “concerns” being raised about Mueller’s approach to the investigation of Trump-Russia or other possible criminal conduct by Trump and his administration. Virtually everyone who has addressed the subject has praised Mueller as a paragon of integrity and professionalism, someone beyond reproach.

Starr goes further, addressing Attorney General Jeffrey Sessions’ refusal, in testimony before the Senate Intelligence Committee, to discuss any aspect of conversations with the president related to anything. Sessions asserted that the president should be given the questions and what amounts to an indefinite period of time to decide whether and how the questions can be answered. Starr flatly declares that Sessions “was on entirely solid ground in safeguarding the president’s right to invoke executive privilege.”

However, when Senator Kamala Harris tried to examine Sessions about why Sessions did not prepare for the inevitable questions about contacts with Trump, she was interrupted by Senator McCain waiving a verbal flag at Chairman Burr to stop Harris’ effort to get at that important question. Burr responded by effectively preventing further examination on that point. The question I have raised in other forums was, of course, not reached: why the previous intelligence leaders and Sessions’ appearance did not include White House counsel who could have advised on the spot about the assertion of executive privilege and the basis for it.

Then the Starr article gets even crazier and more troublesome. Starr goes on to say that “the early returns also suggest the absence of any Oval Office criminality.” He sells out on whether Trump’s “hope” that Comey would drop the Michael Flynn investigation was reasonably construed by Comey as a statement of presidential intention rather than a wistful wishing upon a star (no pun intended, but I do like it). Starr claims that “to hope that the director would abandon a line of inquiry is most naturally read as pleading and cajoling, but not as an order” and “in any event, at the time, Comey didn’t treat the president’s words as a directive.”

These declarations are astonishing in multiple ways that reflect an attempt by Starr to put his foot on the scale and add gravitas to Trump’s defense against obstruction of justice. There is no indication, other than Fox News and its like, that “early returns … suggest the absence of any Oval Office criminality.”

There are, I suggest, millions of Americans who believe just the opposite based on what has been disclosed thus far. Moreover, what Starr claims is the most “naturally read” thrust of the president’s stated “hope” is, in fact, downright silly, since Starr was not present to observe the president’s demeanor or fully evaluate the context. The notion that the president of the United States, known globally for his always-aggressive style, was effectively on bended knee before a man whose employment was in the president’s hands is facially absurd. And, of course, Starr ignores the most inconvenient fact, confirmed by Sessions, that Trump cleared the room before addressing his “hope” to Comey. Trump can’t begin to remember the last time he pleaded and cajoled to get his way.

Finally, there is Starr’s claim that since Comey at the time didn’t treat Trump’s words as a “directive,” the “pleading and cajoling” must not have been a directive. What would Comey have had to do to show that he took the words as a statement of what the president wanted and expected of him? Salute? Bow down? In fact, Comey went to his car and promptly wrote down what had transpired. And he asked the Attorney General to not leave him alone with the president in the future. That memorandum is now in the hands of Special Prosecutor Mueller. Starr would have us believe that Comey made the whole thing up, an act that even most of Comey’s principal adversaries seem to believe is inconsistent with both his character and long-time behavior.

I suspect we have not seen the last of Trump’s shadow team stepping forward to try to shore up the sinking ship that Trump has captained to near disaster. Newt Gingrich is another voice from the Republican past who is going to extraordinary lengths to sustain the president in his self-imposed hour of ever-deepening crisis. Gingrich for example, has stated that a president cannot, as a matter of law, commit obstruction of justice. http://bit.ly/2rFgD5N

Last time I looked, the United States was still a constitutional democracy. We do not have a king. We have not had a king since 1776 when we declared our independence and officially ended any allegiance to the King of England. Gingrich should refresh his memory regarding the U.S. Constitution.

It would not be surprising if more people like Starr and Gingrich join the proverbial circle of wagons around the White House. Even Vice President Pence is lawyering up. Give it your best shot, gentlemen. The cavalry is coming. But this is not a Western movie and the cavalry is not coming to save you.

Trump Calls Comey a Liar – A Most Dangerous Game

Alternative Title: Rat in a Corner — Who You Gonna Believe?

It didn’t take long for President Trump to dispute the stunning facts set out in James Comey’s testimony on Thursday. Trump’s apparently strong conviction in his assertion that Comey lied under oath (and also has misled Special Prosecutor Mueller by providing him with false information about Trump’s conduct) may give some people pause. Trump even says he will speak under oath about the critical meetings with Comey but stops short of saying that he will stand cross-examination as Comey did.

Is Trump’s assertion another version of “I will definitely release my tax returns?”

I suggest that Trump has flatly disputed Comey’s narrative because he had no choice. Could he conceivably have remained silent in the face of the allegations that he pressured Comey to end investigation of Michael Flynn and lighten up on the Trump-Russia investigation? I suggest that the answer can only be ‘no.’ Trump’s silence would have been construed as acquiescence and that is one thing he cannot afford to do now that the suspicions about his conduct have become fixed.

Still, the question remains: who is to be believed? The answer is Comey and there are multiple compelling reasons for that conclusion.

First, it is not disputed that Trump directed other persons present to leave the room before speaking to Comey. Is there a plausible reason for this other than “I know what I am about to do is wrong and I don’t want witnesses to it?”

Second, Comey says he immediately wrote down detailed notes of what had transpired. This was done on a “classified computer” and thus can be verified as to date and time of creation. Comey obviously knows that. Is it plausible then to believe that he created a contemporaneous false narrative to destroy the President? Bear in mind that Comey’s written testimony before the Senate Select Intelligence Committee was based on those notes and that Comey gave the notes to Special Prosecutor Mueller before testifying?

Third, weeks ago Trump implied in a tweet that he might have “tapes” of the meeting(s) with Comey. Subsequently, he has refused to confirm that such “tapes” exist and his White House staff claims either not to know. After Comey’s testimony, in which he said he would welcome release of the tapes if they exist, Trump has continued to refuse to confirm the existence of the tapes. I suggest that this is a classic Trump negotiating tactic and that he has to be bluffing. Why? Because Trump had to know what actually happened during the Comey meetings and if he had “tapes” that would completely destroy Comey’s credibility and serve as major pushback against the Trump-Russia investigation, he would have released them by now.

Finally, there is the matter of general credibility. Comey has a distinguished career in law enforcement and is highly respected by anyone with a shred of objectivity and, reluctantly, by some who have sacrificed their credibility in support of Trump. Contrast that history with Trump’s history of lies before, during and after his election. There are lists of these all over the Internet, so I will not repeat them here. This comparison is “no contest” – Trump loses.

In the interest of balance, I do acknowledge, as I have in another post, that Comey made some mistakes in handling the Hillary Clinton email investigation, but these are not mistakes of credibility. They were mistakes of judgment. And, of course, there is the fact that the Clinton investigation mistakes worked to Trump’s advantage and may well have pushed Trump over the finish line in 2016. No joy for Trump in this.

Thus far, then, Trump is putting his credibility squarely on the line against Comey. Someone is lying, bigly. This looks like a losing proposition for Trump. Notwithstanding the weakness of Trump’s position, his political base, and the Republican Party co-conspirators and sycophants in Congress, continue to support him. They appear ready to do down with the ship.

From here on, the key for the country is for the Democrats in Congress and the Democratic base, regardless of preferences in 2016 (get over it), must engage in a relentless, all-hands-on-deck resistance to Trump’s agenda. Republicans will not move against Trump unless and until he is both failing as the chief executive of the country and conclusively humiliated as having engaged in obstruction of justice and lied about it.

Trump Obstruction of Justice – Who Decides?

So far as my research has revealed, one aspect of the James Comey hearing has not been directly discussed. I concede I may be overreacting or over-parsing what was merely a generic statement from Richard Burr (Rep. NC), the Chair of the Senate Select Committee on Intelligence. But if I’m not guilty of those errors, this is a point worth talking about.

When Burr opened the hearing yesterday, he said:

We will establish the facts, separate from rampant speculation, and lay them out for the American people to make their own judgment. Only then will we as a nation be able to move forward and to put this episode to rest.

That, I suggest, is fundamentally wrong. It makes a nice high-minded statement of democratic philosophy, but in the present context, it may reflect an intention to abdicate the true role of the Select Committee.

Certainly, that role includes uncovering, the truth about the connections between the Trump campaign, and possibly Trump himself, and operatives of the Russian Federation and the effects that had on the 2016 election. It also includes discovering whether the President attempted to undermine the investigation of those relationships by making inappropriate and/or unlawful demands on the then-Director of the FBI and, failing to get what he wanted, firing the Director.

The issue raised here is: what happens when the investigation and hearings are concluded? Burr’s statement implies that some vague plebiscite will then occur in which the American people will “make their own judgment” and that will end the entire affair. Of, perhaps, he means the Committee will make a report, which likely will not reveal all the classified information, and then leave it up to the next election to resolve the culpability of the President. If that is what the Chairman thinks, he has seriously misunderstood his Committee’s role.

In fact, there will be no plebiscite on the question whether Trump is guilty of obstruction of justice. While there will be on-going elections beginning this year, continuing through the 2018 mid-terms and on to the presidential election of 2020, none of those will directly judge in isolation whether the President tried to interfere with the investigation into the Russia connection and thereby committed the offense of obstruction of justice. The evaluation of that question belongs in the first instance to the Congress under its authority to impeach and convict the President for “Treason, Bribery, or other High Crimes and Misdemeanors.” U.S. Constitution, Art. II, sec. 4.

Burr’s Committee would play a central role in the impeachment process, as will the corresponding committee in the House of Representatives where impeachment proceedings must begin. U.S. Constitution, Art. I, sec. 2. The actual trial of any impeachment is a matter for the Senate. U.S. Constitution, Art. II, sec. 3. The requirements for impeachment and conviction are high, as they should be, and the penalties for the President are limited because the Founding Fathers were concerned that political maneuvering could be used to interfere with the President’s execution of his duties. It is also true, however, that the President, while given wide latitude in the conduct of the Executive Branch powers, may not commit crimes and assert “I am the President and no one can hold me to account.”

We must remain aggressively attentive to any effort by Congress, in any form, to sidestep its constitutional obligations to address the issues raised about the President’s conduct. If the investigations, including most importantly the independent investigation by Special Prosecutor Mueller, do not uncover wrongdoing, so be it. The President will then be judged at the ballot box on his overall performance. But if the President has committed, as the facts so far strongly suggest, obstruction of justice, that offense against the country must be taken up by the Congress and moved swiftly to conclusion. If the Republicans in Congress are going to look the other way on the President’s transgressions, they too will face the ultimate test in the elections to come.

Comey Testimony – The Bell Tolls ….

Appointment in Samarra

 A merchant in Baghdad sent his servant to the market.
The servant returned, trembling and frightened. The
servant told the merchant, “I was jostled in the market,
turned around, and saw Death.

“Death made a threatening gesture, and I fled in terror.
May I please borrow your horse? I can leave Baghdad
and ride to Samarra, where Death will not find me.”

The master lent his horse to the servant, who rode away,
to Samarra.

Later the merchant went to the market, and saw Death in
the crowd. “Why did you threaten my servant?” He asked.

Death replied, “I did not threaten your servant. It was
merely that I was surprised to see him here in Baghdad,
for I have an appointment with him tonight in Samarra.”

 This ancient tale appeared as the epigraph to the John O’Hara 1934 novel of the same name. I believe it refers to the unavoidable nature of judgment and the self-destruction of those seeking to avoid it. I was reminded of it today while listening to and watching most of former FBI Director James Comey’s riveting testimony before the Senate Intelligence Committee.

Overall, although I think Comey made some mistakes in handling the extremely difficult situation with which he was faced, I concluded that his narrative of the events was completely credible in virtually every detail. Comey was put in a very difficult spot by the President who was, on the face of it, the elected leader of the government. The decisions he had to make about whom to tell, who he could trust, in an atmosphere of uncertainty and suspicion created by the President’s own conduct, were hard ones. In retrospect, it is easy to criticize some of his choices but the critics are partisans looking to make a case to protect what they wrongly believe is their interest in propping up the President regardless of the cost to the country.

So, while Comey is not perfect, and likely made some mistakes along the way, it will be “no contest” between his credibility and that of the President, who is a demonstrated serial liar and fantasist. The Republicans will score some points along the way to the endgame but, stacked against the malicious conduct of the President, his history of mendacity and the multiple unexplained campaign contacts with the Russians, the game will go to Comey.

Let’s look at a few of the “defenses” suggested by the questions asked by Republican Senators in today’s hearing. One seems to be “you (Comey) didn’t tell the right people what happened, so it didn’t happen,” or, the alternative version of that: “you’re just as bad as he is, so what’s the problem?” To this, I think, the conclusive answer is that Comey told everyone he thought was trustworthy and that should have been notified. “Standing up to the President” was certainly a theoretical option but given the circumstances and the plain intent of the President’s importuning, it is not unexpected that Comey would have been super-cautious in the wake of the President’s prodding.

Finally, on this point, the fact that Comey didn’t object to the President’s face or tell the Attorney General (whom he accurately believed was about to recuse himself from the Russia investigation) does not logically defeat the statement that the President sought Comey’s agreement to an inappropriate and unlawful objective: stopping the Flynn matter and derailing the Russia investigation. Trump later confessed publicly that he fired Comey precisely to interfere with the Russia investigation. Even if Trump, as he asserted, genuinely believed he was a victim of a “witch hunt,” that was no excuse for his action in firing the leader of that investigation.

Another suggested defense was that Trump’s expression of “hope” that Comey would drop the Flynn investigation was just that, an expression of a personal desire, but not a directive. If all you had was a cold transcript of the conversation, that is a spin that could be placed on the words used. But, Comey testified that in the context and circumstances of the request, he took it as a demand for compliance that was totally inappropriate. If Trump had merely wanted to express his belief that Flynn was a “good guy,” he could have done that with witnesses in the room. But he cleared the room instead.

Could he have been more aggressive in his response? Surely, he could have, but it is not implausible to believe that he was indeed truly “stunned” by the unexpected request by the head of the government who had just cleared the room so there would be no witnesses. Instead of “standing up” to the President by challenging him personally, he quickly wrote a memo of what had happened so that there would be a contemporaneous record to support his version of the events. That is powerful evidence of the truth of what transpired, notwithstanding the claims of Trump’s lawyer that Comey’s testimony somehow vindicates the President. If Trump believes that, it is yet another example of how divorced from reality he is.

The third defense I heard was “You’re just mad because he fired you and you’re seeking revenge.” This claim fails on the facts, given that Comey, while still holding his job and having no reason to believe he would be fired, prepared contemporaneous memoranda of what happened in his private contacts with Trump. Comey’s testimony made clear he prepared the memos because he did not trust the President to tell the truth. No surprise there – the chickens have come home, as Trump’s history of lying and distortion returns, once again, to hurt him.

My personal favorite is Speaker of the House Paul Ryan saying that Trump “is new at this” and thus “he probably wasn’t steeped in the long-running protocols that establish the relationships between DOJ, FBI and White Houses. He’s just new to this” and “he is learning as he goes.” Nevertheless, according to the CNN report, “Ryan declined to comment on whether he thought it was appropriate for Trump to ask Comey to drop the investigation into Flynn.” http://cnn.it/2rGgcf4

They can’t have this both ways: yes, the President is an inexperienced neophyte who made mistakes but, no, I can’t say what he did was wrong. If Ryan had any credibility left, he sacrificed it on the Trump altar today.

Then there is White House Deputy Press Secretary Sarah Huckabee Sanders denying that Trump is a liar, flatly challenging Comey’s testimony: “I can definitively say the president is not a liar,” Sanders told reporters during an off-camera briefing at the White House. “I think it is frankly insulting that question would be asked.” http://politi.co/2rQpKCq

I am, of course, deeply reassured by Sanders declaring the President’s veracity “definitively.” Otherwise, we might question her conviction if not her judgment. More seriously, I am also wondering, of course, how she can be so sure of this, since neither she nor Sean Spicer seem to know what is going on at the White House most of the time. When asked, for example, about the existence of a White House taping system that would potentially support an earlier Trump tweet about “tapes” of his interaction with Comey, she said “I have no idea.”

No doubt that is true. White House staff generally continues not to know the answers to basic and important questions about the President’s conduct of the nation’s business. And the truth likely is they don’t want to know. Ignorance may be their only defense to complicity in the attempt to cover-up Trump’s obstruction of justice, as they, perhaps, recall that many of Nixon’s White House staff served prison terms for covering up the Watergate conspiracy.

Finally, there is the astonishing claim by Trump’s personal attorney that Comey violated some “privilege” arising from communications with the President. There is no privilege for obstruction of justice and, in any case, Trump has waived any privilege that might exist by his public comments on Twitter and elsewhere regarding the conversations with Comey. Again, they can’t have this both ways.

 

 

Trump Presidency in Emergency Room

“Doctors” are not sure of survival. According to attending “physicians,” “The Trump presidency is on life support due to numerous self-inflicted wounds, compounded by an unrelenting history of lying that has left the President and his enablers lacking essential credibility to repair the damage. The most serious recent damage includes (1) the firing of FBI Director Comey, (2) the release of code-level intelligence to the Russians, (3) the effort to intimidate the fired FBI Director by mentioning, but refusing to prove, the existence of “tapes” of Trump-Comey conversations in the White House and now (4) the report that Comey prepared a contemporaneous memo reciting an overt attempt by Trump to ask Comey to drop the FBI investigation of Michael Flynn.”

A “doctor,” who asked not to be named so he could avoid being attacked by Trump’s bodyguard, noted, “This all reminds me of another patient we had here, many years ago. He kept saying “I am not a crook” and he too had a large family of supporters that eventually abandoned him as the evidence that he was a crook mounted.  He had no insurance because his credibility was also in the tank by then. Trump has exhausted his insurance by lying remorselessly throughout his campaign and since being inaugurated. Trumpcare will be no help. The president is in the high-risk pool now and even he can’t afford the premiums. The body politic can only withstand so much lying before it begins to fail. We may have reached the point of irreversible decline here.”

The hospital’s resident chaplain reportedly went to the hospital chapel and found Trump’s enablers on their knees praying for divine guidance and salvation. He said, “I heard a voice from the heavens whispering softly, “Here is the answer to your prayers: impeach him.”

Trump Lawyers Up As Obfuscation Engulfs White House

CNN reported on March 7 that Trump White House lawyers up. http://cnn.it/2qZYxvJ. The story was that the White House had retained 26 attorneys on the White House legal staff, an increase of four over President Obama’s legal team at the outset of his administration. There was nothing particularly striking about the report, given the breadth of Trump’s conflicts of interest and the complications encountered with his Muslim ban and other allegedly urgent needs to man up and fulfill his campaign promises. Moreover, the White House is engaged in untold complex problems that implicate serious legal issues, often at the border of known practice or precedent so having some rational thinkers close by for consultation is not a bad arrangement.

However, more recently Trump has lawyered up again. It is unclear who is paying for the new counsel, but according to Press Secretary Sean Spicer, Trump: “obviously, was aware of Senator Graham’s suggestion [that Trump’s business relationship with Russia be investigated] after he made it today and he’s fine with that. He has no business in Russia. He has no connections to Russia. So he welcomes that,” Spicer said.” In fact, he is [sic]already charged a leading law firm in Washington, D.C., to send a certified letter to Senator Graham to that point that he has no connections to Russia,” Spicer said.”

Several points of interest arise from that statement. Spicer is flatly parroting the Trump mantra that he is free of Russian entanglements of any kind. If nothing else, Spicer is a loyal soldier following orders. However, his statements of “fact” regarding Trump’s business connections with Russia are contradicted by earlier well-circulated statements by Jared Kushner, Trump’s son-in-law and alter ego in the Trump business empire.

Moreover, it is not clear why anyone should conclude that a hired law firm’s “certified” letter will settle the question of Trump’s involvement with Russia. The “certified” refers only to a service offered by the U.S. Postal Service; it does not add credibility or probative force to the contents of the communication. And the law firm’s affirmation of Trump’s Russia connections, or lack of them, cannot possibly be regarded as a substitute for an independent investigation of the question whether such connections exist. Even if the law firm were to conduct a massive and thorough “investigation,” it would necessarily be relying on Trump and his associates’ version of the truth and could not possibly have access to all the documents being reviewed by the relevant congressional investigating committees, not to mention the FBI’s independent investigation. Given Trump’s relentless history of lying about matters big and small, there is little joy to be found in a law firm’s sign off on anything he says, especially when he is paying the firm (or has misdirected public funds to pay the firm).

Oh, one other thing, the fact that the unnamed law firm is “leading,” per Spicer’s description, will impress no one. There are more “leading” law firms in Washington alone than there are Starbucks stores.

That brings us to the firing of James Comey as Director of the FBI. The facts on this sordid episode are not all in yet, but we are told that in the days before he was fired, Comey had sought subpoenas from the Eastern District Court in Virginia for documents related to now-fired Michael Flynn, thereby indicating an apparent escalation in the seriousness and breadth of the FBI investigation into election meddling by Trump and/or his associates. Moreover, Comey had reportedly just asked for more resources to carry out the investigation from the same person who supposedly recommended on his own initiative that Comey be fired. The FBI refused to comment on that point, but, according to the New York Times, “Sarah Isgur Flores, the Justice Department spokeswoman, said “the idea that he asked for more funding” for the Russia investigation was “totally false.” She did not elaborate.” http://nyti.ms/2pkwBWL.

Beyond those curious circumstances, we have the actual documents that executed the dismissal of Comey.

The opening line of the dismissal letter states that the President has “received the attached letters … recommending your dismissal,” as if the letters were a surprise that was slipped under the door of the Oval Office while the President was watching TV. The second paragraph states the President’s concurrence in the judgment of the Department of Justice, again implying that DOJ came up with all this on its own and that Trump is simply acceding to their recommendations.

But most remarkable, perhaps, is this bizarre statement:

“While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau.” [emphasis added]

At the very same moment he is firing the Director for misconduct in office, Trump tries to borrow from whatever may remain of Comey’s credibility by saying, in effect, “look, he said I wasn’t guilty so I’m not guilty!” Can anyone not hallucinating believe that the insertion of the gratuitous claim that Comey had thrice absolved Trump of suspicion was inserted for any reason other than the guild the lily of Trump’s denials of involvement?

Beyond that, the inclusion of the claim that Comey in effect gave Trump a clean bill of health in the Russia investigation raises many questions that must be answered, under oath. One is, when exactly, and under what circumstances, did the Director of the FBI give such personal assurances to the President, if in fact he did? Comey is now in the position of an attorney whose client has publicly claimed the attorney gave unethical advice or otherwise violated the law in connection with his representation. The attorney must be allowed to defend himself and so must Comey. He should be called very quickly as a public witness by the relevant congressional committees to explain whether he did what Trump claims or whether Trump, in keeping with past practice, is flat out lying.

Now we come to the recommendation from Attorney General Jeffrey Beauregard Sessions III in which he recites his great dedication to “discipline, integrity, and the rule of law.” That, notwithstanding that he had previously recused himself, for lying to Congress about his own contacts with Russian operatives, from the investigation Comey was leading into the Trump-Russia connections. Apparently his having recused himself regarding the investigation was not seen as an obstacle to his participation in dismissing the leader of that investigation. This screams out for explanation. Was the recusal a head-fake to thwart an investigation into Sessions’ lies about his meetings with Russia operatives? Surely someone at the Justice Department remembered his recusal. You would think an explanation of his participation in the dismissal would have been offered by now. The total arrogance of these people is palpable.

Finally, there is the recommendation memorandum, also dated May 9, 2017, from Deputy Attorney General Rod J. Rosenstein, to whom Comey reported and who had been on the job about two weeks. It must have been a busy day at the White House and DOJ for all these letters bearing the same date, May 9, 2017, to have been produced.

The document begins by praising Comey’s skills as a speaker and that “he deserves our appreciation for his public service.” The letter then acknowledges that Rosenstein and Sessions have discussed Comey’s handling of the “conclusion of the investigation of Secretary Clinton’s emails” and states Rosenstein’s inability to understand Comey’s refusal to “accept the nearly universal judgment that he was mistaken. Almost everyone agrees that the Director made serious mistakes; it is one of the few issues that unites people of diverse perspectives.”

The Memorandum then recites the errors made by Comey that in Rosenstein’s view usurped the authority of the Attorney General (then Loretta Lynch): (1) announcing Comey’s conclusion that the case against Clinton was being closed without prosecution, and (2) holding a press conference to “gratuitously” release “derogatory information about the subject of a declined criminal investigation,” and (3) using inappropriate words, like “conceal” in a subsequent letter to Congress.

The press conference to which Rosenstein objects occurred on July 5, 2016, just over nine months before Comey’s dismissal without notice or opportunity to address the charges against him. The letter to Congress was sent on October 28, 2016, before the 2016 election and just under three months before Trump’s inauguration. And until May 9, 2017, Comey’s handling of the Clinton email investigation and his public disclosures met with Trump’s enthusiastic approval. Perhaps in an attempt to counter the effect of those facts, Rosenstein’s memorandum recites excerpts of letters from seven former Attorneys General, Deputy Attorneys General and other unnamed Justice Department officials who concur in the condemnation of Comey’s actions, leading to the conclusion that “Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.”

More questions arise. When were these letters from former DOJ leaders written? No dates are given. How were they solicited? By whom? Are we to believe they were just lying around waiting for some enterprising Attorney General to cite them as authority for dismissing Comey? White House Deputy Press Secretary Sanders has stated that Trump was considering firing Comey as early as January 21 but her explanation for the delay is a mish-mash of incoherent blather.

To be clear, and in conclusion, I am not arguing that Comey’s conduct in 2016 was correct. I strongly believe he inappropriately influenced the 2016 election and helped elect Donald Trump. Trump rewarded that help by firing him because Comey was showing a frightening (to Trump) independence in pursuing the Trump-Russia connection, an independence for which Comey had a reputation. Trump views loyalty as the most important trait and Comey, in Trump’s eyes, now looked like a traitor. So, “you’re fired!”

But this is not reality TV. Trump has doubled down on thwarting the Russia investigation. He is so arrogant that today, less than 24 hours after firing Comey, Trump met at the White House with Russian Foreign Minister Sergey Lavrov and Russian Ambassador to the US Sergey Kislyak while excluding U.S. press.

The firing of Comey is, in my judgment, a non-survivable mistake that should, by itself, lead to Trump’s impeachment. It may take a while, but there is no way this interference can be tolerated in a democratic society. The issue is not whether Comey handled the Clinton investigation correctly or who objected or applauded at the time. The question is whether a sitting president can be permitted to directly interfere with an investigation of serious impropriety through the intervention of a hostile foreign power in the manner of his election. The answer must be ‘NO.’

Trump better get some more lawyers. He’s going to need them.