Tag Archives: Obstruction

Most Disturbing Statements Since Trump Was Elected

According to a recent report in Axios, cited by CNN’s Chris Cillizza, Donald Trump’s personal attorney, John Dowd, recently said the “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.” http://cnn.it/2AUcpAw  That extraordinary claim has now been repeated in even more stark terms by the President (not mine) himself: ““I have absolute right to do what I want to do with the Justice Department,” Trump asserted in a widely reported interview with the New York Times. My emphasis on “absolute right,” because this is the type of claim made by dictators and kings. Under the Constitution there are few, if any, absolute rights and the right to break the law is certainly not one of them.

By extension, Trump’s principle leads to this: since every governor is likely the chief law enforcement officer in a state, the governor cannot obstruct justice under state law by interfering with the independence of the state office of attorney general.  And, since the police chief is the chief law enforcement officer in a city, he cannot obstruct justice either, no matter what he does or no matter what inspires him to act (e.g., here’s $100,000 to stop my friend (or me) from being prosecuted)? Or is it the mayor? Or both? Does Trump really believe that all these people are above the law and may interfere in investigations and prosecutions that could lead to themselves as targets? If that is the state of things, and you add up how many powerful people that involves, with command over the military, National Guard and police, you have the makings of tyranny and dictatorship.

Most likely, Trump never thought about the implications of his statement which he probably sees as applicable only to himself in his capacity as the supreme being.

Mr. Dowd, in his capacity as Trump’s lawyer, is entitled, of course, to make what are sometimes called “extension of law” arguments to support his client’s position, even if, as I believe is true here, the argument is pure poppycock. It is fundamental that a statement (read “expression of view”) made in one context may be harmless but pure poison if said to the wrong person or in a different context. Is the President merely expressing his opinion when he says to the head of the FBI “I sure wish you would let the Flynn thing slide,” and then fires the Director when he does not comply?

One might have pause over this in light of the supporting statements of Harvard Law Professor Alan Dershowitz (disclosure: I studied First Year Criminal Law under him). Dershowitz, however, as smart as he is, is not infallible. His position reminds me of some of the ultra-fine point-making for which law school classes were notoriously famous and are fine in an academic setting. In the real world we inhabit now, it proves way too much to say that the President of the United States is essentially immune from the law against obstruction of justice.

Dershowitz seems to be saying the President is “merely” exercising his Constitutional authority when he, for example, countermands a potential criminal prosecution or, for another, pardons himself or pardons targeted members of his staff even before they are charged with anything. He argues that no president has ever been charged for doing so. So what? Perhaps Special Prosecutor Mueller will be the first. There is always a first time and Trump seems primed to be it.

Obstruction seems just the kind of “high crime” that the Constitution’s impeachment provision was intended to expose to sanction by Congress and by law enforcement after impeachment succeeds.

This “I am the law” approach to governance is precisely what the Founders of the country were trying to overcome in fashioning a constitutional republic of laws, not of men. It was the essential lawlessness of the King of England, whose decrees were final and not subject to question, that the Founders intended to prevent when the office of the President of the United States was created with a provision for impeachment of the President for “high crimes and misdemeanors.” For a short, but incisive, treatment of this subject, read Impeachment, A Citizen’s Guide, by Cass Sunstein. [Note: I expect to discuss that, and some related books, in a forthcoming post.]

Mr. Dowd’s/Trump’s view that the President is both “the law” and “above the law” poses a threat to every American, including those who still think, if that word can be used here, that Trump is infallible. In this country, no one is immune from the reach of the law for crimes committed, including obstruction of justice.

No doubt an impeachment action based on obstruction of justice, collusion with enemies of the country, would end up in the Supreme Court pretty fast because Trump will never yield no matter how compelling the evidence. So, Mr. Mueller, the world turns its eyes to you. Whenever you’re ready. Bring it.

And Happy New Year.

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.