Saturday, May 13, 2017

Trump's Arrogance, Deceit Fuel Constitutional Crisis

      President Trump's decision to fire FBI director James Comey was a calculated act of constitutional arrogance and political deceit: lawful on the surface but deeply damaging to the rule of law and possibly criminal or impeachable as an obstruction of justice.
      Trump's extraordinary comments to NBC's Lester Holt [May 11] make clear that he fired Comey in an attempt to truncate the FBI's investigation of possible collusion between his presidential campaign and Russian agents interfering with the U.S. election. Seemingly oblivious to the damning implications. Trump acknowledged to Holt that he had planned to fire Comey without regard to the pretext that he had arranged by ordering up a recommendation from the nation's two highest law enforcement officials at the Justice Department.
      Attorney General Jeff Sessions and deputy attorney general Rod Rosenstein are two of the collateral damage victims of Trump's deceit. Sessions' letter recommending Comey's dismissal violated his pledge during his Senate confirmation process to recuse himself from all investigations of the Trump campaign. Any self-respecting senator on either side of the aisle should rise in indignation and demand at the least an investigation of Sessions' action by the department's inspector general.
      Sessions had been damaged goods already given his false testimony to the Senate Judiciary Committee that he had never met with Russian officials as a Trump surrogate during the presidential campaign. Rosenstein, on the other hand, had an unblemished reputation as a U.S. attorney in Maryland that gained him Senate confirmation on a 94-6 vote for the Justice Department's second-ranking position.
      Presciently, however, the six Democratic senators who voted against Rosenstein's confirmation were troubled by his balking at a promise to appoint a special prosecutor for the Russia probe. Now, he has allowed himself to be co-opted into the president's plot to thwart the investigation.
      Rosenstein affixed his signature—and his reputation—to a slap-dash letter listing Comey's missteps that exaggerated the damage to the FBI's reputation and that ignored the inspector general's pending investigation of Comey's actions. As the always thoughtful Benjamin Wittes wrote on Lawfare, "Rosenstein was tasked to provide a pretext, and he did just that." Wittes's recommendation sums up the difficult choice Rosenstein now faces: appoint a special prosecutor and then resign.
      Trump also threw press secretary Sean Spicer and deputy press secretary Sarah Huckabee Sanders under the bus by letting them spin the press -- and the public -- on the basis of palpably false talking points. CNN ran a devastating compilation of sound-bites from Vice President Mike Pence, Spicer, and Sanders, all using the identically phrased description that Trump "took the recommendation of the deputy attorney general" in firing Comey.
      Deviously, Trump soiled Comey's reputation further by claiming in his own letter that the FBI director had personally assured him not once but three times that he himself was not under investigation  As Trump depicted the most specific episode, Comey asked for a dinner meeting because he wanted to keep his job and gave the assurance when the president asked.
      The account strains credulity. It is far more plausible, as those close to Comey recounted, that the president asked for the meeting and Comey felt obliged to accept. In any event, the meeting and the subsequent telephone conversations breached Justice Department protocols regarding pending investigations--and the claimed assurances, if given, all the more.
      In the wake of all these disclosures, legal experts mulled whether the president had committed an obstruction of justice, as broadly defined in federal law. To begin, it must be conceded that despite the fixed 10-year term for the FBI director, the president had the authority to fire Comey with or without cause. The post-Watergate tenure provision was designed more to limit the FBI director's power than the president's.
      On the surface, however, Trump's actions seem to fit the wording in 18 U.S.C. §1512, which makes it a crime if someone corruptly "obstructs, influences or impedes any official proceeding." The practical obstacles to such a charge would be daunting, according to a survey by Charlie Savage, the New York Times's Pulitzer Prize-winning correspondent who has been dogging presidential abuses since George W. Bush's years in the White House. The Justice Department is unlikely to bring the charge, Savage noted, and proof of motive would be very hard to prove in any event.
      With criminal prosecution improbable, critics and experts naturally turned to impeachment. Trump's description of the Russia probe as "a made-up thing" has echoes of the Nixonian description of Watergate as a "third-rate burglary." Trump's conduct seems to fit the wording in the first article of impeachment against Nixon that he has "prevented, obstructed, and impeded the administration of justice." Harvard's distinguished constitutional law expert Laurence Tribe was perhaps the most prominent expert seen to be tweeting that it was not too early to consider impeachment as the constitutional remedy for Trump's abuses in office.
      Impeachment is beyond the realm of possibility, however, unless House Speaker Paul Ryan and Senate majority leader Mitch McConnell decide to put country over party and stand up against the president. Trump remains popular with his minority political base even as a majority of Americans strongly disapprove his performance, according to the most recent poll. The path out of what amounts to a genuine constitutional crisis—a president who respects neither the law nor the truth—is nowhere in sight.

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