One of the problems in writing pieces about the current political climate is that it changes faster than the actual weather. When it comes to this administration, every tidbit is treated as a “Constitutional Crisis” or an “Unprecedented Threat to the Republic”. And most of the time there is, in fact, precedent for what has happened and no part of the Scandal De l’heure actually touches upon the Constitution.
The one that broke yesterday is the exception to the rule. No, not the “Trump Shares Highly Sensitive Intelligence with the Ruskies”, but the story first reported in the New York Times that then FBI Director James Comey wrote a Memorandum following a meeting with President Trump that stated, in part, the President wanted the FBI to end an investigation into former Trump advisor Michael Flynn. (There was another troubling piece in the memo, which will be discussed below.). This comes following Trump’s dismissal of the FBI Director and the 48 different explanations the Administration put forth to explain why Comey was fired, all of which were shown to be false when the President admitted he fired him because he didn’t like him and would have done so no matter what the Justice Department.
It also comes after President Trump’s blackmail-ish tweet threatening to release audio tapes of conversations he had with Comey if Comey leaked to the press.
Clearly that threat didn’t work.
So we know have a situation where the press is reporting the President of the United States pressured the FBI to end an investigation into the activities of a Presidential associate. We’re living in an episode of 24 or a bad 1990’s conspiracy film.
The head of the Committee of Oversight and Government Reform, Jason Chaffetz, sent a letter to Acting FBI Director Andrew McCabe requesting this letter and all documentation regarding conversations Trump and Comey had.
Chaffetz did the right thing. But that is not enough as Congressman Justin Amash tweeted last night:
Comey needs to come before the Oversight Committee and state under the pains and penalties of perjury whether President Trump ordered/told/asked the FBI to end an investigation into Michael Flynn.
Either way, this is not going to turn out well.
- The Memo is Real.
If the sum and substance of the memo is, as the New York Times reported, accurate and Comey acknowledges it as such, then two things are clear. A) James Comey deserved to be fired for failing to report this conversation to Congressional Leadership as B) this is a clear instance of the President of the United States interfering with an ongoing criminal investigation. It is textbook obstruction of Justice.
18 U.S.C. 1512(b) states:
Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;
(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or
(D) be absent from an official proceeding to which such person has been summoned by legal process; or
(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation supervised release, parole, or release pending judicial proceedings;
shall be fined under this title or imprisoned not more than 20 years, or both.
(Section (d) of the 18 U.S.C. 1512 would probably also apply as it deals with obstruction by harassment.)
And must also be noted that 18 U.S.C. 1512(f) says
For the purposes of this section—
an official proceeding need not be pending or about to be instituted at the time of the offense;
It will be very hard for House Republicans to dismiss these allegations. Speaker Ryan et. al. would be compelled to have the Judiciary Committee began an investigation to consider Impeachment Articles. And there would also be the very real possibility that at least 19 Republican Senators would be prepared to remove Trump from Office.
This would be a Constitutional Crisis.
- The Memo is Fake.
If the memo is fake, that is the New York Times fell for a forgery, or it made it up whole cloth, or the memo exists but doesn’t say anything about Trump trying to shut down an FBI investigation, then all hell will break loose.
The media who has been writing Trump’s political obituary since June 2015 will have destroyed the last bits of credibility it has. It will have cried “Wolf!” for the last time. The New York Times, et. al. will be seen simply as the propaganda wing of the Democratic National Committee and will have almost no influence over a large segment of the population. Remember Trump’s quote during the campaign that he could stand on 5th Avenue and shoot people and get away with it? He would actually be able to do it and people would dismiss any news accounts as just “Fake News”
Negative Stories about Trump will be seen as nothing more than click bait. Tweets like this one from the Washington Post’s Glenn Kessler will be endlessly paraded as proof of the perfidy of the press:
It will also embolden this administration to go to war against the First Amendment. We already know Candidate Trump believed libel laws should be relaxed to allow him to sue people who say mean things about him. The Times story suggest President Trump wants to take this one step further:
Alone in the Oval Office, Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information, according to one of Mr. Comey’s associates.
The party in charge of the executive branch hates leaks while the opposition party loves them. But this takes it one step further by punishing journalists for reporting news. Remember, but for the Snowden revelations reported in the press, we would never know the NSA was illegally and unconstitutionally spying on American citizens. Nor would we know that the recent ransomware epidemic is a direct result of America’s intelligence agencies’ exploitation of software bugs.
If the memo is false, there will be precious little support for protecting the likes of the Times, Post, CNN, et. al.
This would be a Constitutional Crisis.
There really doesn’t seem to be any good outcome here.