“If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.” -Carl Sandburg
You can tell how shaky Donald Trump’s legal position is today by how loudly his defenders are shouting. At the media, for pointing out that the president’s credibility already is tattered by his serial lying. At Democrats, for vainly trying to keep the country focused on the substance of the election scandal, which already has established deep and troubling ties between Russia and the president’s men. But mostly at James Comey, the former FBI Director, for being the messenger who said under oath in public what so many have only whispered in the corridors of government in Washington.
The facts are against the president. Not even his most ardent defenders, in or out of government, can deny it in their heart of hearts. Comey’s testimony last week before the Senate Intelligence Committee may not per se have established an obstruction of justice case against the president. But if it didn’t, as former U.S. Attorney Preet Bharara says, it sure came close. Just close your eyes and imagine a prosecutor’s (or a senator’s) opening statement:
First, the defendant tried to woo Mr. Comey and to seek from him a pledge of loyalty. He did this to get Mr. Comey onto the team, to get him to play ball. President Obama never asked this of Mr. Comey. Nor did President Bush. It is, indeed, unheard of. It is unheard of because it is entirely inappropriate for a president to ask this of an FBI Director. You may say the same thing about the defendant’s efforts to make out-of-channel contact with the U.S. Attorney in Manhattan, efforts that made Preet Bharara uncomfortable. But the defendant tried it anyway. And when that effort failed, when Mr. Comey refused to go along with the plan, the defendant tried something else. A more direct approach.
He asked Mr. Comey directly to go easy on Michael Flynn, the former National Security Adviser, a comment the defendant now says was a joke or a lighthearted suggestion but which Mr. Comey, a veteran law enforcement official, took as some sort of direction from the President of the United States. How do we know the defendant understood this to be a dubious request? Why can we say it was suspicious? Because the defendant made sure he cleared the Oval Office, so that there were no witnesses, when he asked Mr. Comey to subvert his own constitutional oath and back away from an investigative lead.
Then, when these efforts at flattery and seduction failed, and when the direct approach failed, too, the defendant realized his only recourse to achieve his goal of slowing down the investigation was to fire Mr. Comey. The FBI Director, who served under three presidents of both parties, who was guiding an investigation into the most serious attack on our nation’s democratic ideals since the Second World War, suddenly was not good enough for this administration. Ladies and gentlemen of the jury, members of the Senate, it is not just what the defendant said or didn’t say to Mr. Comey that represents the obstruction of justice. It’s what he did. He fired the man who knew too much.
The law is against the president, too. This kerfuffle over Comey’s decision to share his memo with a friend after Trump fired him is a distraction, a ruse, no matter what Jonathan Turley says. James Comey was a private citizen who shared non-classified, non-privileged information. He did not steal material. He did not deprive the federal government of his work product. He did not profit from the disclosure. Even if the Trump team files the complaint it has threatened to with the Justice Department’s Inspector General, it is unclear whether Inspector General Michael Horowitz has jurisdiction over the matter. And, even if he does, and even if he ends up chastising Comey for ethics violations, it won’t erase the substance of those memos.
Some of the loudest shouting in the wake of Comey’s testimony has come, predictably, from the president himself. His pledge to testify about all these matters under oath—100 percent!-- is a gift to the nation and to all those who wish to see justice done here. Special Counsel Robert Mueller is drooling over the possibility of questioning Donald Trump under oath about the administration's ties to Russia and the administration's efforts to undermine the investigation into those ties. Which is why the White House Counsel, not to mention Trump’s hapless private attorney, are going to do everything they can to ensure that doesn’t happen. Or at least doesn’t happen anytime soon.
That epic questioning—if it were broadcast on Pay-Per-View at $99.95 it would eliminate the national debt—surely would expose the contradictions and vagaries of the president's mind. It also would be the perjury trap into which Trump seems so eager to fall. He would do no better now, and probably far worse, than he did ten years ago when he was deposed under oath. Only this time the whole world would be watching and his administration’s future would be on the line. Here’s hoping that happens before the 2018 mid-term elections.
The facts are against the president, the law is against the president, and the talent gap is against the president, too. When the feds probe a sprawling conspiracy they usually start at the bottom of the scheme and work their way toward the top. Ask any indicted mob boss. Which is why the worst news of the week for Trump wasn’t Comey’s testimony but rather Mueller's hiring of deputy solicitor general Michael Dreeben to join the special counsel’s investigation. An experienced attorney, an acclaimed expert in criminal law, Dreeben left his full-time post in Trump's Justice Department to work part-time to help investigate Trump's Justice Department, a probe that includes not just the president’s interactions with James Comey and others but also the legal and ethical choices made by Attorney General Jeff Sessions and his deputy, Rod Rosenstein (both of whom, not for nothing, had bad weeks last week as well).
Dreeben's migration over to Team Mueller tells us that the Special Counsel is prepared to recommend criminal charges if the evidence leads him in that direction. It also tells us that that there is now—just five months into the Trump regime—an intense government investigation at the highest level that is treating this administration like an organized crime ring. Every delusional or self-defeating Tweet that the president and his men post, every political argument they make that contradicts the legal positions they are taking, every sleazy new attempt to obstruct the Russia probe, will become part of the case.
Let us end with an exercise. Which side do you think is going to prevail here? Which side would you bet on if you had to put your own money down? The side with James Comey, Robert Mueller, and Michael Dreeben, men who have devoted their professional careers to federal law enforcement? Or the side with Trump’s personal lawyer Marc Kasowitz, White House counsel Don McGahn, and Alan Dershowitz? As they say every day in courtrooms: asked and answered.
The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.