Witness Intimidation, Obstruction of Justice, and Impeachment

I am still on vacation visiting relatives during what has been a busy news week.

The most important developments from last week were the New York Times report on Donald Trump’s insistence of personal loyalty from FBI Director James Comey, as if he is a mafia Godfather insisting on the code of omertà; Trump’s interview with Lester Holt of NBC in which he essentially made a public admission of obstruction of justice; and Trump’s threatening Tweet to fired FBI director James Comey about “tapes” of their alleged conversations.

Trump cannot control his own destructive impulses from acting out on intimidation of witnesses and obstruction of justice — Count One of the Articles of Impeachment against Richard Nixon.

Here is a good summary from New York Magazine. Trump Asked Comey for Loyalty a Day After He Was Warned About Flynn:

Unsatisfied with his press office’s handling of the fallout from the firing of FBI Director James Comey, on Thursday night President Trump took matters into his own hands — and made things much, much worse.

Though their story kept shifting, for days White House officials stuck to their claim that Comey was fired because the president and top Justice Department officials felt he was doing a bad job, not because of the FBI’s investigation into the Trump campaign’s possible Russia ties.

Then in an interview with NBC’s Lester Holt, Trump proclaimed that he had actually decided to fire Comey regardless of what Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein recommended — and the Russia probe was on his mind.

“In fact, when I decided to just do it, I said to myself, I said [self], ‘You know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should have won,’” the president said.

Trump speaking about himself in the third person is your first clue that this Dude is bonkers.

Trump also explained why he wrote in his letter dismissing Comey, “I greatly appreciate you informing me, on three separate occasions, that I am not under investigation.” The president said he asked Comey if he was under investigation twice by phone, and once during a dinner. “I actually asked him, yes. I said, if it’s possible, will you let me know, am I under investigation? He said, you are not under investigation,” he told NBC.

Trump revealed that he and Comey dined at the White House early in his administration, and suggested it was at the director’s request. “A dinner was arranged,” Trump said. “I think he asked for the dinner. And he wanted to stay on as the FBI head. And I said, I’ll, you know, consider. We’ll see what happens.”

Trump denied that he tried to pressure Comey into dropping the Russia investigation, but even the most generous interpretation of Trump’s account is pretty damning. Even if Comey requested the dinner to plead for his job, legal experts say it’s totally inappropriate for the president to ask the FBI director about a pending investigation.

For the record, it would also be totally inappropriate for the FBI Director to tell the president three times that he is not a target of the Russia investigation as Trump’s termination letter to Comey asserts. James Comey is a boy scout who puts on the cape and sees himself as a Justice League superhero in this matter. There are no circumstunces under which I can believe this self-serving assertion by Trump is true. Comey will be asked about it under oath, and I have little doubt that he will contradict Trump’s version.

But other reports suggest what Trump actually discussed with Comey was far worse, raising questions about whether the president was attempting to interfere in an FBI investigation.

The New York Times reported on Thursday evening that a week after the inauguration, Comey was “summoned to the White House for a one-on-one dinner with the new commander in chief.” Two sources said Comey told them that during the dinner Trump asked him to pledge his loyalty to him. Comey said he could only promise honesty, so later Trump circled back:

By Mr. Comey’s account, his answer to Mr. Trump’s initial question apparently did not satisfy the president, the associates said. Later in the dinner, Mr. Trump again said to Mr. Comey that he needed his loyalty.

Mr. Comey again replied that he would give him “honesty” and did not pledge his loyalty, according to the account of the conversation.

But Mr. Trump pressed him on whether it would be “honest loyalty.”

“You will have that,” Mr. Comey told his associates he responded.

[A]s reporter Laura Rozen noted on Twitter, the timing is curious. This is what happened in the week prior to the dinner, according to former acting Attorney General Sally Yates’s congressional testimony.

_______

January 20: Trump is inaugurated.

January 24: FBI agents interview National Security Adviser Michael Flynn about his conversations with Russian ambassador Sergey Kislyak during the transition.

January 25: Yates is briefed by the agents who interviewed Flynn.

January 26: Yates requests a meeting with White House counsel Don McGahn and meets with him later that afternoon. “I told them again that there were a number of press accounts of statements that had been made by the vice president and other high-ranking White House officials about General Flynn’s conduct that we knew to be untrue,” Yates testified.

Yates says she explained that Justice officials believed this was an issue because Russia probably had proof that White House officials were making false statements about Flynn’s conversations with Kislyak, “and that created a compromise situation, a situation where the national security adviser essentially could be blackmailed by the Russians.”

McGahn briefs Trump immediately after talking to Yates, according to White House press secretary Sean Spicer.

January 27: Yates meets with McGahn again, at his request. He asks, “Why does it matter to DOJ if one White House official lies to another White House official?” according to Yates, so she goes over the issues with Flynn’s conduct itself, and the potential for blackmail.

Trump signs the travel ban later that day, without warning Yates.

Comey has dinner with Trump that night, and, according to Times, the president asks for his loyalty.

January 30: Yates calls McGahn to say he can “come over and review the underlying evidence” against Flynn. Later that day she orders the Justice Department not to defend Trump’s travel ban, saying it’s unlawful. Trump fires her that night.

February 13: Eighteen days later, Flynn is pushed out after media reports reveal that he misled Vice-President Mike Pence.

________

Sources close to Comey told the Times and NBC News that the White House requested the dinner, not Comey. They said the FBI director didn’t even want to attend, but he didn’t see how he could turn down the White House.

They did not mention one detail: when Comey was invited to dinner. That appears to be key to understanding the context of Trump’s interaction with Comey — and whether Trump might have engaged in obstruction of justice, a federal felony offense.

In one possible scenario, the White House invites the FBI director to dine with the new president just after the inauguration. A day before the dinner, in a total coincidence, Yates tells the White House that the FBI has turned up troubling information about Flynn.

In another possible scenario, Yates tells McGahn that FBI agents just questioned a top Trump official. McGahn tells Trump, who immediately summons the FBI director. Trump pushes Comey to reveal whether he himself is under investigation, and asks him to pledge his loyalty to him.

Jimmy Gurulé, a law professor at Notre Dame who has worked in the Justice Department and the Treasury, described what constitutes obstruction of justice in a CNN opinion piece:

Most obstruction of justice charges are filed under the omnibus clauses of 18 U.S.C. § 1503 and § 1505, where the government must prove that: (1) the defendant acted with “corrupt” intent (in this case, intent to interfere with or thwart the investigation); (2) the defendant endeavored to interfere with a pending judicial proceeding; (3) there was a sufficient “nexus” between the defendant’s actions and the pending proceeding (the actions were likely to affect the judicial proceedings); and (4) the defendant acted with knowledge that the judicial proceedings were pending. Further, and most critically in this case, the defendant need not actually obstruct the pending judicial proceeding, but only “endeavor” to do so.

As the Times explains, one major challenge would be proving that Trump fired Comey primarily to obstruct the Russia investigation:

Obstruction of justice cases often come down to whether prosecutors can prove what a defendant’s mental state was when he or she committed the act, legal specialists said. It is not enough to show that a defendant knew the act would have a side consequence of impeding an investigation; achieving that obstruction has to have been the specific intention.

One could interpret Trump’s comment that he had Russia on the brain when he fired Comey as an admission of obstruction of justice, but it would likely be difficult to build a case around one rambling quote. If a former FBI director says the president tried to pressure him a day after learning that a top aide was under investigation, then fired him when he acted against his wishes, that might be a different story.

Then on Friday came Trump’s Tweet alleging secretly recorded “tapes” of his conversations with fired FBI Director Comey.

Trump has a long history of secretly recording calls, according to former associates.

And the president’s phone calls have been transmitted since 2011 using Voice over Internet Protocol (VoIP), an Internet technology that sends voice messages as packets of digitized data. The technology allows for retrieval of a text record of presidential conversations.

Trump may have been referring to that technology when he put the word “tapes” between quotation marks in his tweet. The president has sharply criticized people who take literally the words he surrounds with quotation marks in his tweets.

So there may, in fact, be recordings of the conversations between Trump and Comey. But whose version of the facts the recordings, if any, support is an open question.

If there are recordings, but they do not support Trump’s assertions, there is always the possibility that this megalomaniac would destroy those recordings.

There is also the possibility that there are no recordings, which puts Trump’s Tweet back in the context of witness intimidation.

And the Trump administration sought to block Sally Yates from testifying to Congress on Russia by asserting attorney-client privilege and the presidential communication privilege.

Either way, this will not end well for Trump. Constitutional law professor Lawrence Tribe published an op-ed over the weekend, Trump must be impeached. Here’s why. (snippet):

Now the country is faced with a president whose conduct strongly suggests that he poses a danger to our system of government.

Ample reasons existed to worry about this president, and to ponder the extraordinary remedy of impeachment, even before he fired FBI Director James B. Comey and shockingly admitted on national television that the action was provoked by the FBI’s intensifying investigation into his campaign’s ties with Russia.

Even without getting to the bottom of what Trump dismissed as “this Russia thing,” impeachable offenses could theoretically have been charged from the outset of this presidency. One important example is Trump’s brazen defiance of the foreign emoluments clause, which is designed to prevent foreign powers from pressuring U.S. officials to stray from undivided loyalty to the United States. Political reality made impeachment and removal on that and other grounds seem premature.

No longer. To wait for the results of the multiple investigations underway is to risk tying our nation’s fate to the whims of an authoritarian leader.

“To say that this does not in itself rise to the level of ‘obstruction of justice’ is to empty that concept of all meaning.”

The lesson of Watergate: it’s not the crime, it’s the cover-up. Obstruction of justice stands alone as an impeachable offense without an underlying crime.