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Analysis

James Comey’s Notes Are Trump’s Smoking Gun

A sitting president likely cannot be indicted. He can, however, be impeached. Firing Comey to turn off an investigation might be impeachable but not indictable.

May 17, 2017

Cross-posted from The Daily Beast.

The Water­gate scan­dal finally came crash­ing down around Richard Nixon on August 5, 1974. That was the day, 21 months after he’d won 49 states in his reelec­tion bid, that the White House released a tran­script of the tape that became known as the “smoking gun.” Twenty-six months after the burg­lars were caught inside Demo­cratic headquar­ters, thing had accel­er­ated into satur­a­tion news cover­age, tele­vised hear­ings, combat­ive press confer­ences, indict­ments, arrests, consti­tu­tional crises. He resigned days later.

These days, everything moves faster. Today’s start­ling news that Donald Trump told FBI Director James Comey to end the invest­ig­a­tion of former National Secur­ity Advisor Michael Flynn comes less than four months into this pres­id­ent’s first term.

Trump is not the first pres­id­ent to be vexed by Justice Depart­ment or FBI invest­ig­a­tions. Chief exec­ut­ives don’t like the idea of someone with subpoena power peer­ing into their inner circle and activ­it­ies. Nixon, Bill Clin­ton, and George W. Bush, among others, faced high-stakes invest­ig­a­tions. How they reacted set the course of their pres­id­en­cies. Few have handled it worse than Trump.

To set the scene, let’s begin ages ago in our great national lesson in what consti­tutes “obstruc­tion of justice,” say, five days ago. When Trump fired Comey, there was plenty of evid­ence – common­sensical, circum­stan­tial, but not quite direct – that the purpose of the firing was to derail a loom­ing and increas­ingly threat­en­ing invest­ig­a­tion. Then the Pres­id­ent did us all the favor of explain­ing to Lester Holt that “this Russia thing with Trump and Russia” was on his mind when he decided to fire Comey.

Now comes word of Comey’s extraordin­ary contem­por­an­eous memo describ­ing a meet­ing with Trump. The pres­id­ent asked the FBI chief to hang back after a meet­ing in the Oval Office, the day after Michael Flynn resigned for having lied about his contacts with Russia.  “I hope you can see your way clear to letting this go, to letting Flynn go,” Trump told the no-doubt aston­ished Comey in his writ­ten account. “He is a good guy. I hope you can let this go.”

This was blunt and expli­cit – no hint­ing infer­ences here. It’s wildly prob­lem­atic, of course, for several reas­ons. Trump is not just some kibitzer or constitu­ent. He was Comey’s boss. “Letting Flynn go” sounds rather, well, literal. Already, in an earlier conver­sa­tion,, the pres­id­ent had asked for “loyalty.”

If the White House can just order invest­ig­at­ors to shut down when they get close to the Pres­id­ent, there’s no possible inde­pend­ent check on Oval Office lawless­ness. Trump’s words seem to viol­ate one of the federal obstruc­tion of justice stat­utes, which applies to “whoever corruptly… endeavors to influ­ence, obstruct, or impede the due and proper admin­is­tra­tion of the law under… any pending proceed­ing.”

Which is why Comey’s notes compare to Nixon’s “smoking gun” in 1974. The year before, former White House coun­sel John Dean had riveted the nation when he test­i­fied before the Senate Water­gate commit­tee. Dean’s most explos­ive charge was that he had warned Nixon of a “cancer on the pres­id­ency,” with continu­ing demands for hush money by the burg­lars. Nixon claimed he had told Dean “that would be wrong.” Then came the revel­a­tion that Nixon taped his own Oval Office conver­sa­tion­s—thus the tapes would show who was telling the truth. For a year, the Pres­id­ent, the prosec­utors and Congress battled over the tapes. It turned out Dean was accur­ate. Prosec­utors deman­ded more tapes, and the case went to the Supreme Court.

On the morn­ing of July 24, 1974, the high courtruled unan­im­ously that Nixon had to turn over the subpoenaed tapes. That even­ing, the House Judi­ciary Commit­tee began its tele­vised delib­er­a­tions on whether to recom­mend impeach­ment. Repeatedly Nixon’s defend­ers found them­selves asking, as journ­al­ists summar­ized, “Where’s the smoking gun?” You cannot impeach the Pres­id­ent without direct evid­ence of a seri­ous crime. The impeach­ment articles passed with some Repub­lican support. But the die-hard Nixon support­ers had found the firm ground on which they would continue to fight, or at least so they thought.

But there was still that Supreme Court ruling. Nixon gingerly urged one of his lawyers to listen to the record­ing made on June 23, 1972, just six days after the arrests. Nixon’s staff quickly real­ized they had found direct evid­ence of obstruc­tion of justice. In that conver­sa­tion, Nixon’s chief of staff, H.R. Halde­man, told Nixon that the invest­ig­a­tion had strayed “back into the prob­lem area.” Nixon ordered Halde­man to have the CIA go to the FBI and tell the probers to “stay the hell out of this” since national secur­ity deman­ded an end to the invest­ig­a­tion.

“Don’t lie to them to the extent to say there is no involve­ment,” Nixon told Halde­man to script the CIA. “But just say this is sort of a comedy of errors, bizarre, without getting into it, ‘the Pres­id­ent believes that it is going to open the whole Bay of Pigs thing up again.’” (One of the break-in master­minds, E. Howard Hunt, had helped organ­ize the ill-fated inva­sion of Cuba, and several of the burg­lars were anti-Castro Cuban emigres. Oliver Stone’s conspir­at­orial movie Nixon has that “Bay of Pigs” refer­ence really refer to the Kennedy assas­sin­a­tion.) After two years of pretend­ing he wanted justice done, it turned out, Nixon had in fact ordered the cover up in its first hours.

The “smoking gun” tape shattered Nixon’s remain­ing support. I was a Water­gate-obsessed 14-year-old visit­ing Wash­ing­ton, D.C. on a family vaca­tion. We were sitting in the gallery of the House of Repres­ent­at­ives when the tape was released. Some­thing big was happen­ing, it was clear, when the press room across the cham­ber exploded in activ­ity—a scene that looked like some­thing from The Front Page, as report­ers ripped sheets of tele­type copy, grabbed phones, tapped away on type­writers and gener­ally made a commo­tion. We watched mesmer­ized. Then the House Judi­ciary Commit­tee chair­man, Peter Rodino, walked onto the House floor, triumphantly hold­ing a sheet of paper above his head. Two dozen or so lawmakers crowded around him. In that pre-C-SPAN era, as Rodino read, the Demo­cratic congress­men began to jump up and down and cheer. Rodino gave us tour­ists an okay sign in the gallery.

A few minutes later, we wandered into a small TV studio – where Nixon’s most vocal commit­tee defender, Rep. Robert Wiggins of Cali­for­nia, tear­fully announced he would now vote for impeach­ment. They had found the “smoking gun.”

Rarely is there such obvi­ous evid­ence of miscon­duct. But in the after­math of Water­gate, a series of rules and unwrit­ten prac­tices arose to prevent the kind of abuse of the invest­ig­at­ive power that was at the heart of Nixon’s obstruc­tion of justice. Admin­is­tra­tions up to Barack Obama developed writ­ten policies. A group of former White House lawyers, United to Protect Demo­cracy, set out the prac­tices. Only a few key staff were allowed to talk about invest­ig­a­tions at all. Only lawyers. No polit­ical oper­at­ives. Every­one knew that you had to treat invest­ig­a­tions with great care. The Pres­id­ent himself, notably, is one of the few offi­cials allowed to have such contacts. It is assumed he would under­stand how explos­ive they could be, and would keep a safe distance.

I saw this firsthand when I worked for Bill Clin­ton as his chief speech­writer during a series of invest­ig­a­tions that culmin­ated in the Monica Lewin­sky scan­dal. You didn’t need a West Wing pass to know the Pres­id­ent loathed the FBI director, Louis Freeh. In public, Clin­ton bit his lip and focused in public on policy. In private, though, he seethed. Clin­ton had nomin­ated Freeh, call­ing him a “law enforce­ment legend.” (Ouch. I draf­ted those words.) Quickly Freeh began to act in a way that convinced Clin­ton he was being partisan, report­ing to Repub­lic­ans on Capitol Hill and keep­ing inform­a­tion from the White House. Freeh urged Attor­ney General Janet Reno to appoint a special prosec­utor to probe the 1996 Clin­ton reelec­tion campaign and its supposed ties to China. Reno refused, and Free­h’s memo some­how leaked.  Freeh complained that the Pres­id­ent “victim­ized” his agency. Fric­tion Builds Between Freeh, Clin­ton, Threat­en­ing to Burn Them, and the FBI, repor­ted the L.A. Times.

Things only got worse during the impeach­ment year. I remem­ber one meet­ing around the large table in the Cabinet Room in 1998. Jack Lew, then serving as budget director, explained that both the Secret Service and the FBI were compet­ing for a pile of funds. “Well,” Clin­ton snorted, peer­ing over his glasses, “one of those agen­cies has actu­ally read the Consti­tu­tion.”

Clin­ton would fume privately. But the very fact that he was under invest­ig­a­tion made it neces­sary to treat the FBI with exquis­ite care. He simply could not fire Freeh, even though he no doubt would have relished the chance. It would have been inap­pro­pri­ate. It would also have provoked a firestorm.

George W. Bush under­stood the same thing. You simply had to respect the inde­pend­ence of a Justice Depart­ment invest­ig­a­tion. When he had to decide whether to pardon a top asso­ci­ate, former Vice Pres­id­en­tial chief of staff Lewis “Scooter” Libby, Bush had his legal staff research the case and pore over trial tran­scripts, accord­ing to New York Times reporter Peter Baker. In the end, Bush did not issue the pardon. He knew he needed to protect himself and the pres­id­ency.  

All of which brings us to today’s bomb­shell. Is this new alleg­a­tion proof of crim­inal obstruc­tion of justice? Let’s remem­ber, for starters, that legal schol­ars gener­ally believe a sitting Pres­id­ent cannot be indicted. He can, however, be impeached. Firing Comey to turn off an invest­ig­a­tion might be impeach­able but not indict­able. That’s the kind of abuse of power that checks-and-balances must prevent. But Comey’s new alleg­a­tion is simpler, blunter, more brutal, and more plainly illegal.

The play­wright Anton Chek­hov (yes, Russian) famously said that if you put a gun on the table in the first act, it should be fired in the last act. The audi­ence has barely settled into its seats. But in Donald Trump’s increas­ingly implaus­ible drama, the gun is smoking.

(Photo: Flickr.)