Ten Days in May: The TPAMП in Comey’s China Shop by Rob Hager

Image by Elvert Barnes via Flickr

by Rob Hager
Writer, Dandelion Salad
May 22, 2017

Pending the Special Prosecutor’s criminal investigation, Congress needs to take urgent action under Article 25 of the Constitution to deal with the more immediate danger of Trump’s future irrational behavior.

Harvard Law professor Larry Tribe, the leading Constitutional scholar and practitioner of his era, advised Congress to “grow a pair” and impeach Trump. Tribe and colleagues had already initiated litigation against Trump under the Foreign Emoluments Clause for his business empire’s conflicts of interest involving foreign countries which could potentially feed what Tribe calls Trump’s “bottomless money pit.” This litigation could take years.

Tribe therefore invoked, as the occasion for Congress to take more urgent action, the evidence that Trump himself revealed about the apparent attempted bribery and possible obstruction of justice involved in Trump’s short, and now terminated, official relationship with former FBI Director James Comey. After Tribe argued that these crimes are impeachable offenses, additional evidence leaked from both Trump and Comey confirmed Tribe’s call about Trump’s criminal behavior.

Tribe is not the first law professor to find Trump impeachable. But Tribe made clear that this latest problem goes beyond the mere conflicts of interest that his Emoluments Clause case addresses. It goes all the way to actual bribery, conducted much in the manner of a mobster. Under Trump’s “slumlord survival tactics,” the presumed imbalance of power makes crime a negotiable element of his management style.

Trump’s own words suggested that he personally dangled the FBI directorship before Comey in exchange for 1) Comey’s assurance that the overboss was (and, nudge-nudge, would remain) excluded from the Russia investigation, plus 2) Comey’s pledge of his general fealty to Trump rather than, as his oath requires, to the Constitution’s rule of law. A mob boss requires his capo to be personally loyal; law-abiding, not so much. Comey’s continued employment as FBI director was the implicit quid pro quo. The deal implied by Trump’s own words, and amplified by later leaks from Comey, was: “You help me and my associates and I will keep you employed as the Trump enterprise’s pet FBI Director.”

Trump admitted three discussions from which such an offer to Comey can be implied. Trump put a gratuitous sentence in his May 9 letter of termination to Comey memorializing those conversations, His assertion implying that Comey agreed to the deal by informing Trump three times that he was not under investigation was possibly a lie. Trump’s later tweeted threat, intended to silence Comey, implied that the conversations may have been recorded. This suggested on the other hand that Comey did not exactly decline the bribe, even if Trump did change his mind and fire him anyway. This threat itself might constitute harassment supporting a separate count of obstruction of justice.

On May 16, a leaked account of Comey’s notes about a fourth February 14, 2017 conversation alleged that Trump attempted to influence the investigation of Flynn. Trump’s May 18 outright public denial of this set up a credibility contest between two men who call each other “nut job” and “crazy.” The outcome of that swearing contest will color the interpretation of the other three conversations that implicate a more legally precarious quid pro quo. Putting in a good word for his “friend” Flynn, may be viewed as less corrupt than putting in a good word for himself.

Racketeering under the federal RICO law is committed by two or more instances of “any act or threat involving … bribery,” among other named crimes. That law specifically covers bribery of a public official “to do or omit to do any act in violation of the lawful duty of such official.” This is a status offense which potentially opens Trump’s whole business life to inquiry. These several recent incidents could therefore expose the whole Trump enterprise to investigation and discovery of other similar racketeering. Other “predicate acts” by Trump could include the kinds of bribery or extortion activities involved in Tribe’s Emoluments Clause litigation. Comey himself might plausibly join a Civil RICO suit as a “person injured in his business” by the Trump enterprise. It would not be Trump’s first brush with racketeering charges.

Trump’s conversations with Comey that amounted to a bribe, Tribe argues, also constitute an impeachable “high crime or misdemeanor” of greater significance than the underlying speculation about Russian collusion with Trump’s 2016 campaign. Indeed it is important to separate the significance of Trump’s attempted corrupt influence on Comey from both the dubious merits of the “Russian Hacking Fiasco” — for which no credible evidence has yet been made public — and also from the considerable merits of firing James Comey for unrelated reasons.

Since no evidence has been made the public upon which to form an opinion, Trump could be absolutely right about the “Russia thing” being a “total hoax” and a Democratic Party “excuse for having lost the election.” But that would not affect his attempted bribe of Comey with respect to seeking Comey’s general loyalty plus Comey’s specific exemption of Trump and his associates from “investigation” of the possibly empty election hacking and collusion charges. Such an investigation might well drill a dry hole concerning election hacking or campaign collusion but in the process nevertheless stumble over evidence of other crimes down Trump’s Emoluments money–trail.

Any thorough investigation will follow the money, not just supposed Wikileaks hackers. President Trump has an unusual relationship to money. While most politicians seek money as a means to power, Trump, as a plutocrat, has typically sought power as a means to money. It is surely no coincidence that his unprecedented first trip abroad was to a country that has the most spending money available for making notoriously corrupt, unaccountable arms deals, through which Saudi oil money typically leaks into many pockets, and which in this case has the added attraction of supporting its war crimes in Yemen. It is hardly reassuring that the family bag-man Jared Kushner arranged this Saudi deal.

What is most interesting about Trump’s attempted Comey bribe is the way that he revealed evidence of the bribe, completely gratuitously in a press interview without there being any plausible benefit to himself in doing so. Trump volunteered that he was going to fire Comey irrespective of the perfectly good cause that Deputy Attorney General Rod J. Rosenstein provided in his Memorandum to the Attorney General dated May 9, 2017. That Memorandum had been forwarded to Trump with some superfluous boilerplate added by Attorney General Sessions recommending termination, which in retrospect seemed inconsistent with Sessions’ commitment to “recuse myself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.” This recusal has been interpreted to require his recusal from matters involving the Russia investigation.

The first and operative paragraph of Trump’s firing letter formally “accepted” the Memorandum and Session’s letter as cause for firing Comey.

The second paragraph of Trump’s letter irrelevantly and even bizarrely included Trump’s equivalent of an intended exculpatory tweet that did the opposite. It made a connection between the firing and Trump’s exemption from the Russia investigation. This second paragraph could be interpreted as conveying to Comey a public “never mind” about any thinly disguised quid pro quo agreements he thought were operative. Trump became “strongly inclined” to, effectively, change his mind about a deal with Comey after he watched Comey’s lugubrious congressional hearing theatrics on May 3, 2017.

In his NBC interview with Lester Holt on May 11 Trump contexted his statement about firing Comey on grounds separate from those charged in the Memorandum. In explaining his firing letter’s gratuitous reference to the Russia investigation, he dug this hole much deeper: “when I decided to just do it [fire Comey], I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made-up story…” Trump’s actual motive for firing Comey was thus, according to his own self-incriminating words, not those perfectly safe reasons stated in the May 9 Memorandum, as had been suggested it was by both the text of the first paragraph of Trump’s firing letter, and by its interpretation by various Trump spokespersons. By undermining the Memorandum he turned Rosenstein and the spokespersons into potential co-conspirators in Trump’s clumsy obstruction attempt.

There is no rational excuse for Trump to have on May 11 undermined the mostly proper manner in which the safe reasons for firing Comey had reached his desk, by suggesting that he had already decided to fire Comey for entirely different reasons irrespective of the Memorandum. Rosenstein was later forced to admit to Congress on May 18 that he knew of Trump’s decision to fire on May 8, prior to his May 9 Memorandum giving the reasons for firing. This sequence raised otherwise unfounded questions about both the legality of those other Trumpian reasons that were not mentioned in Rosenstein’s otherwise perfectly adequate Memorandum and the time when Rosenstein learned of those other reasons.

Viewed most favorably to Rosenstein, he probably would not have discussed with Trump any reasons for firing Comey that were any different than his own. He had likely agreed to provide his own reasons in writing if Trump would take responsibility for making the executive decision to fire on the basis of the Memorandum which did not itself recommend firing. When Trump failed to comprehend this not so fine distinction and attributed both the reasons and the recommendation to fire to Rosenstein, Rosenstein’s rumored displeasure caused Trump to retreat to a second misunderstanding of the deal. Trump reversed himself and claimed not only that he made the decision to fire independent of Rosenstein, as had been agreed, but also, contrary to Rosenstein’s likely expectation, that his own actual motive for firing Comey had nothing to do with the reason in Rosenstein’s Memo.

The reason stated in the Memorandum was Comey’s blatantly unprofessional “handling of the conclusion of the investigation of Secretary Clinton’s emails.” It must be emphasized here, as I have detailed elsewhere, that Rosenstein’s analysis of the errors Comey made presented more than adequate cause to fire Comey, even if it did not fully describe all of the available reasons why Comey was unsuited to retain the job of FBI Director. Indeed Rosenstein’s reasons were so powerful that it would have been improper for Trump not to fire Comey for playing politics with usurped prosecutorial powers as recounted in the Memo.

To say that Trump obstructed justice in his communications with Comey is not to say that Trump was objectively wrong in firing Comey upon the advice conveyed by Rosenstein’s Memorandum. Trump was merely stupid both for his inability to understand the deal Rosenstein had presumably made for arranging Comey’s dismissal, and then for talking to the media about his own subjective and unlawful motive for firing Comey as distinct from the formal institutional and historically important reasons why Comey was justifiably fired. Trump later dug his hole even deeper still by talking to Russian diplomats about his motive, in saying about terminating Comey: “I faced great pressure because of Russia. That’s taken off.” His obstruction was accordingly for a personal reason.

Rosenstein was Comey’s new boss. He had every right to push Comey out of the FBI soon after Rosenstein was sworn in as Deputy on April 26. His well-crafted Memorandum generated only two weeks later, expressed Rosenstein’s “longstanding concerns” for which he had already contemplated firing Comey when he accepted the Deputy job, knowing that supervising the FBI Director’s sanctimonious “series of public statements” would be one of his principal burdens. The Memorandum itself, as well as Rosenstein’s subsequent May 19 testimony to Congress suggests that Comey’s own testimony to Congress on May 3 dropped the last straw.

Had Trump only kept his mouth shut about his subjective motives, let Rosenstein do his job, and stuck with the program reflected in the agreed documentation, any connection between Comey’s firing and the Russia-Trump investigation would have remained mere partisan speculation and tantrum. Trump’s puerile impetuousness in talking about his motive to a TV camera gained him absolutely nothing while it created what Tribe, and others less familiar with the Constitution than Tribe, now see as appropriate raw material for Articles of Impeachment, demand for which will doubtless continue to grow. Tribe notes: “Obstruction of justice was the first count in the articles of impeachment against Nixon and, years later, a count against Bill Clinton.” No one would deny that obstruction is and should be a generically impeachable offense. Meanwhile bribery is expressly mentioned in the impeachment clause of the Constitution, Art. II, Sec. 4.

Another tactical disadvantage resulting from Trump’s fatuous flapping of his gums about his motive on TV is that it would require appointment of an independent prosecutor to investigate the attempted bribe of Comey that it suggested. Tribe explained that, since Sessions and Rosenstein were witnesses to the meeting where Trump formulated his plan to fire Comey, they both needed to step out of the chain of command by appointing a special prosecutor for investigating and potentially prosecuting the attempted bribery matter – unless one of them resigned. Since they can both be called as principal witnesses in that matter it is elementary legal ethics that they could not continue to serve in the chain of command of the prosecutors conducting the bribery and obstruction case.

Sessions was already supposedly recused from dealing with all Trump campaign matters, including the Russia investigation which was only implicated in the Comey firing by Trump’s later public musings, not by the Rosenstein Memorandum. On its face, the Memorandum when it reached Session’s desk had nothing to do with the Russia investigation and ostensibly had nothing to do with the internal workings of the Trump campaign. Only after Trump gratuitously linked Comey’s firing to the Russia probe, the necessary recusal of both Sessions and Rosenstein from the Comey bribe matter left no plausible alternative but the appointment of a special prosecutor to pursue the bribery and obstruction charges against Trump.

Rosenstein had leaked his view that no special prosecutor was needed for the Russia investigation on its own. But because of Trump’s incompetence a different calculation applied to the related Comey bribe matter. Rosenstein accordingly acted quickly on May 17 to appoint former 2001-2013 FBI Director, and deep state denizen, Robert Mueller to be special counsel for the whole subject of the “FBI investigation of Russian government efforts to influence the 2016 presidential election and related matters.” Trump’s attempted bribery of Comey would unquestionably be a “related matter.” As the DOJ regulation specifically states, the scope includes investigatory “crimes … such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.” The scope also includes the broader residual clause for “any matters that arose or may arise directly from the investigation.”

This appointment was made pursuant to DOJ regulation in Rosenstein’s capacity as Acting AG consequent to Sessions’ recusal. The scope of Mueller’s assignment places him on Trump’s tail, unless and until Trump risks a true Nixon-style Saturday Night Massacre to shake him off.

Comey will get to be a “showboat …grandstander” at least one more time before Congress when he reveals whether he will implicate Trump as not just “crazy,” in his opinion, but also a racketeer. The revelation on May 16 that Trump specifically attempted to intervene in the investigation with respect to Flynn led to the further disclosure that Comey has kept, like the experienced political player that he is, contemporaneous notes of his discussions with Trump. These notes would therefore be admissible, with somewhat enhanced credibility, as evidence in court. Congress requested these notes which will likely be made public in June. It is highly unlikely the notes or any testimony by Comey interpreting them will support Trump’s account of his and his aide’s conversations with Comey.

Trump’s naïvete in publicly disclosing his subjective motivation for firing Comey is thus spinning matters far outside his control. It gave Comey power over Trump in his ability to characterize the nature of the three or more conversations with Trump and Priebus as attempted bribery to obstruct justice. If Priebus acted in consultation with Trump, that would be conspiracy. The general (“omnibus”) obstruction statute punishes anyone who “corruptly … influences …or endeavors to influence … the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States.” 18 USC §1505. More than one academic has made a somewhat strained argument, based more on metaphor than reason, that a pending FBI investigation is not a “pending proceeding” and also that Comey will need to make a plausible explanation why he chose to delay reporting Trump’s obstructionist conduct to investigators, if he thought it was such a violation. Comey might have to explain, for example, that he failed to report the obstruction beyond a close circle of aides within the FBI because he did not wish to divert or contaminate the investigation by leaks of such explosive information at an early stage. Perhaps he did not fully understand the attempted bribe to be intended as such until the other shoe dropped on May 9.

As to the statutory argument, one relevant obstruction statute does apply directly to “criminal investigations” and another, which punishes anyone who “intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from …(4) causing a criminal prosecution … to be sought or instituted… or attempts to do so,” seems to also apply to criminal investigations. Although it does remain an open legal question, there is substantial precedent supporting application of §1505 to a criminal investigation, e.g. United States v. Kelley, 36 F.3d 1118, 1127 (D.C.Cir. 1994) (USAID); US v. Adams 472 F. Supp.2d 811 (W.D. Va. 2007) (DEA); U.S. v. Tonawanda Coke Corp (W.D. NY 2014) aff’d on other grounds (2d Cir. 2016) (EPA). But it is erroneous to conclude, as some academics have, that the applicable obstruction statutes simply do not apply to an FBI investigation.

Intentional harassment might describe Trump’s general behavior toward Comey. As to the omnibus statute, the required element of corruption would normally include either bribery, where the culprits are such amateurs that they make their motivation so obvious as to be provable beyond a reasonable doubt, or it is conflict of interest where motive is successfully hidden and the influence is indirect. But in this context it is sufficient to prove merely an “improper purpose.” Trump played the amateur, and has clumsily revealed his actual motivation in several different ways, including by deliberately meeting privately with Comey without witnesses present. So the open legal question about whether the omnibus obstruction statute applies to an FBI investigation might be a bit of a red herring, when the bribery motive both constitutes a separate crime and a constitutionally expressed impeachable offense, in addition to being a plausible predicate for corrupt obstruction.

For purposes of impeachment and even criminal prosecution, Trump’s own words only need confirmation and contextualization by Comey to constitute testimony that Comey understood the cumulative effect of Trump’s blandishments as an attempted bribe, offering job tenure to divert him from carrying out his official duties. Thus unnecessary statements to NBC and Trump’s later rationalizations have resulted in giving Comey the keys to the whole china shop and the capacity to take the clumsy bull, El Torumpo, down. Trump’s alleged intercession to help Flynn simply adds to the impression that Trump’s relationship with Comey consisted of little other than a pattern of attempted bribery and obstruction. Adding to this pattern is his continued communications with Manafort, Flynn and possibly other potential witnesses currently under criminal investigation. It has already leaked that he advised his troubled associate Flynn to “stay strong,” like any racketeering overboss would advise his capo against ratting out the boss, especially one who holds a pardon pen.

The more troubling issue involved here is not even Trump’s record of nearly daily impeachable offenses. That might be expected from any would-be authoritarian leader clumsily testing the framework of constitutional checks and balances on his power. The larger issue is about Trump’s demonstrated lack of ordinary capacity to handle the job, his abysmally poor judgment. He could not carry out the simple, if delicate, executive act of firing a highly flawed public official for manifestly bipartisan good cause without, in the process, making needless disclosure of evidence of his own criminal motive for the firing.

That the incriminating disclosure could do him absolutely no good whatsoever suggests a troubling level of incompetence, or worse. If he will make this mistake, Trump can be expected to bring the same incompetence to his conduct of other similarly serious public matters. It took little time for him to demonstrate that his carelessness was not a one off when he disclosed official secrets in international negotiations. The disclosure allegedly lacked sufficient reason to warrant its adverse impact on important foreign intelligence operations. If true, Trump should be on probation, not allowed to leave town to foment sectarian war against Iran.

Like many, Prof. Tribe sees the problem as Trump’s authoritarian tendency to violate the law. The reality may be even more troubling than that.

Whether lawless jefe or demented toro in a china shop, either way, leaving Trump unsupervised is clearly dangerous both to the nation and potentially to the world. Tribe hopes that Trump’s impeachment for the former reason will be the governing issue of the 2018 election. But about a third of Americans seem to think however bad Trump is, he is still better than the corrupt system that he criticizes, especially if led by the likes of Hillary Clinton. It is the Democrats’ election to lose, again. Any plausibly foreseeable outcome in the Senate races would still likely leave as a bridge too far the 2/3 supermajority required for Senate conviction upon impeachment by the House. The toro could break much china in the 20 months before the 116^th Congress is seated in January 2019.

Trump’s own appointees in the executive branch, who are largely drawn from an extreme plutocratic outpost on the political spectrum, inhabited by a rich but lunatic fringe, are themselves not up to the task of performing adult supervision so long as Trump’s favors keep flowing to the 1% they represent. Tribe and others advocating impeachment might therefore consider an alternative remedy contained in the Constitution, Article 25(4), as a more achievable and suitable goal. This provision empowers Congress to create, by simple legislation, “a body” responsible for determining whether a “President is unable to discharge the powers and duties of his office.”

The public already has its doubts after just four months. For American voters, the most common “first word that comes to mind” to describe Trump is “idiot.” Three of the next four words are “incompetent,” “liar” and “unqualified.” More say “clown” or “narcissist” than either “smart” or “rich.” More say “ignorant” than “successful.” More say “crazy” or “buffoon” than “negotiator” or “patriotism.” The public is entitled to receive expert advice before acting on these impressions.

Trump’s totally pointless, unforced, on-camera admission evidencing his attempted bribery of Comey, on top of the quotidian Trump phenomenon that much of the nation has experienced as unhinged from reality and lacking in normal self-discipline (most seeing him as neither “honest,” 61%, nor “level-headed,” 66%), constitutes a tipping point to raising broader questions about Trump’s aging or otherwise debilitated mental powers. This emerging bipartisan question of executive “lunacy” requires close formal scrutiny by a competent “body” of behavioral, medical and other experts as the Constitution allows for such extreme situations.

This task is unrelated to Mueller’s expertise and duties which looks backward. To assign blame a body of nonpartisan experts with diverse and unquestioned credentials are needed to assess and warn against future incompetence, not witch hunters, as Trump labeled Mueller. A “climate of fear and paranoia appears to have taken root in his White House” already, which prevents Pence and the cabinet from fulfilling this duty. Another institutional solution is needed now. This boomer may be bonkers.

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Rob Hager‘s most recent book, Strategy for Democracy: Why And How To Get Money Out of Politics, is currently available as a free ebook.

An earlier version of this article was published at NoC and Counterpunch.

from the archives:

Impeach Trump for the Right Reasons by David Swanson

The Only Fake News That Provably Threw The Election To Trump Was Not Russian by Rob Hager

The Argument For Impeaching James Comey by Rob Hager