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Impeachable Offenses?

~ Examining the Case for Removal of the 45th President of the United States

Impeachable Offenses?

Tag Archives: James Comey

The Mueller Report

19 Friday Apr 2019

Posted by impeachableoffenses in Uncategorized

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don mcgahn, James Comey, Michael Flynn, Mueller report, Obstruction of Justice, Robert Bork, Robert Mueller, Russia investigation, Saturday Night Massacre, William Barr

By Frank Bowman

This is how it’s done. In the endless, degrading cacophony of the Trump era, in which the “tweet storm,” the “flame war,” the sneering insult, and the facile certainty of cable punditry have become the customary form of legal and political discourse, I had almost forgotten what the language of the law sounds like. But there it is in the 448 pages of the Mueller report
— logical, cautious, painstaking, measured, dry, yet inexorably compelling. One may quibble about details, but taken as a whole, Mueller’s product is an exemplar of the prosecutor’s craft and a powerful reminder of why a Justice Department imbued with norms of independence and professionalism is an essential counterweight to both presidential overreach and partisan hysteria.

The legal craftsmanship of the report is also an unanswerable refutation of the endlessly repeated canard that the Mueller investigation was a baseless partisan “witch hunt” by a hostile “deep state.”

In one sense, of course, the report is the work of the “deep state,” if by that foolish term one means the career professionals of American law and government. If some of those professionals are hostile to Trump and Trumpism, it is only because their lives are based on values — the dogged pursuit of truth, a commitment to fairness and due process, respect for the law, support of constitutional government — that Trump openly flouts.

Nonetheless, Trump should thank his lucky stars that Mueller’s team was composed of such old-fashioned folks. Had they indeed been the “thirteen angry Democrats” of Trump’s splenetic imagination, persons of the disposition and caliber of, say, Devin Nunes or Lindsey Graham, but of the opposite political valence, the resultant report would surely have been very different. As it is, the professional values and institutional norms by which good prosecutors live produced a report exonerating Trump of actual crime in relation to Russian election interference and withholding judgment on the legal question of obstruction.

Trump and his enablers are, of course, claiming vindication. But the caution and restraint of Mueller’s style cannot obscure the facts he meticulously reports. And those amount to a devastating portrait of a man by conduct, character, and temperament unfit for the office of president.

The section of the report on Russian election interference does clear Trump and his campaign of conspiring with the Russian government to interfere in the 2016 election. It nonetheless unequivocally affirms that the Russians did interfere. And it depicts Trump campaign operatives, including members of the Trump family, who were aware of the possibility that Russia was trying to intervene to help Trump by hacking and leaking material damaging Clinton, but saw no problem with such Russian meddling and would happily have conspired in it given the chance.

The reality of Russian intervention and the dangerous, if perhaps not quite provably illegal, proximity of Trump intimates to it frames the question of Trump’s obstruction quite differently than his defenders would like. Despite Trump’s endless denials, the Russians did meddle. As a matter of national security, that required investigation. Likewise, Trump associates and family did have troubling contacts with Russian emissaries. That, too, required investigation. Given the facts, both those long publicly known and others now laid out in Mueller’s report, investigation of neither point could, except in the mind of a willfully blind partisan, amount to a “witch hunt.”

Moreover, a truly independent inquiry into Russian electoral interference represented a political threat, or at least grave embarrassment, to Trump, because it raised the possibility that his victory was tainted by the assistance of a hostile foreign power. In addition, by no later than early 2017, Trump knew that his family and associates had, at the very least, come dangerously close to illegal entanglements with Russian representatives. Thus, Trump had powerful motives to quash the Russia investigation.

The crime of obstruction of justice depends on proof of two basic points — first, actions that obstruct or impede an investigation, and second, corrupt motive. Although a president may lawfully limit or even halt investigations for reasons genuinely related to the national interest, doing so to advance one’s partisan political prospects or to protect oneself or one’s family or friends from criminal exposure or personal embarrassment is to act corruptly.

The second volume of Mueller’s report lays out eleven different incidents or sequences of events that might amount to obstruction — from Trump’s efforts to convince FBI Director James Comey to lay off the investigation of Gen. Michael Flynn, to his repeated attempts to stop or limit the Mueller investigation, to his public and private efforts to induce witnesses Flynn, Manafort, and Cohen not to testify or to hew to Trump’s preferred view of reality.

Space precludes a blow-by-blow analysis of each of these categories, but Mueller’s conclusions — though guardedly, even opaquely, phrased — are evident and damning. He concludes that on multiple occasions Trump engaged in behavior that either did, or was intended to, obstruct or impede criminal investigations. As to some of the enumerated categories, Mueller concludes that, even if obstructive conduct occurred, there was insufficient evidence of “corrupt” motive. But as to at least five sequences of events, Mueller unmistakably believes that there is persuasive evidence of both obstructive conduct and corrupt motive. These included repeated efforts to remove special counsel Mueller; an attempt through Cory Lewandowski to induce Attorney General Sessions to limit the scope of the Mueller probe to future Russian interference in elections; a brazen attempt to convince White House Counsel Don McGahn to lie about the fact that Trump had ordered him to arrange the firing of Mueller; Trump’s efforts to influence the cooperation and testimony of Michael Flynn and Paul Manafort; and Trump’s efforts to induce Michael Cohen not to cooperate or to shade his testimony in Trump’s favor.

Mueller’s conclusions are unmistakable despite his careful refusal to go the last step and say plainly that Trump obstructed justice. If there were any doubt on the point, it is removed by the report’s inclusion of a devastatingly thorough legal rebuttal of Attorney General Barr’s apparent view that a President cannot commit obstruction by stopping or limiting a criminal investigation. The only reason to include such an argument is if Mueller concluded that, on the facts, the president violated the law. Otherwise, the legal question is moot and a legal craftsman like Mueller would never have included such surplusage.

In the end, of course, whether a president can or cannot technically commit the crime of obstruction is itself a moot point. As I have argued many times, Bob Mueller was never going to defy DOJ policy and seek indictment of a sitting president. As to the president, therefore, Mueller’s job from the beginning was to determine the facts and present them to Congress and the public in order that a political judgment about the president’s fitness for office could be made — whether through the impeachment process or at the polls.

The picture of the current president painstakingly etched in the Mueller report is of a man with three dominant characteristics.

First, his narcissism overwhelms all other considerations. Even a more balanced and self-aware person would have found the Russia inquiry politically and personally troublesome. But one cannot escape the feeling (to which Mueller obliquely alludes) that a primary factor in Trump’s desperate efforts to squash the investigation was the fragility of his ego — a manic determination that the epic achievement of his election not be tarnished by even a hint that forces other than Trump played a role.

Second, Trump believes that, having been elected, the powers of government are to be wielded for his personal and political benefit and the law exists only as a tool to serve his ends. No institution, no law, no set of traditional norms, no professional standard, certainly no moral consideration deserves any deference if it stands in the way of his immediate wishes.

Third, the thread running through the entire report is Trump’s essential falsity. Mueller confirms that Trump not only lies constantly as part of his public act, but does so privately among his advisers and intimates and he expects others to lie for him on command. Among the most revealing vignettes is Trump’s effort to convince Don McGahn to lie about the fact that Trump ordered him to secure Mueller’s firing. McGahn, to his credit refused and showed Trump his notes documenting the order. Trump exploded in astonishment that, “Lawyers don’t take notes…. I’ve had a lot of great lawyers, like Roy Cohn. He did not take notes.” That a subordinate might have personal integrity and be unprepared to sacrifice it on Trump’s command had seemingly never occurred to him.

One other curious theme recurs throughout the report as a kind of counterpoint to Trump’s lawlessness. Even though Trump repeatedly ordered people to crush or divert or hobble the Russia investigation, over and over they refused to comply, either to his face or simply by failing to carry out his directives. Revealingly, those who resisted told Mueller that they did so because they didn’t want to be responsible for another “Saturday Night Massacre,” or they didn’t want to be another Robert Bork.

This is heartening in a sense. The example of Watergate seems to have restrained at least some Trump subordinates and helped buttress, at least for awhile, the tottering citadel of the rule of law. But the Mueller report is about yesterday’s White House. Those with historical memory, and perhaps more imbued with personal integrity and professional values, are largely gone. Quit in disillusionment. Or purged because they refused to bend to Trump’s lawless whims. In considering what to do about Donald Trump, Congress should ponder that they now confront a Trump unchanged in his essence but increasingly surrounded by aides who may prove unwilling to provide even the modest restraint on his worst impulses documented in Mueller’s report.

Whether Donald Trump violated a particular federal obstruction statute is in the end a peripheral matter. The fundamental lesson of the Mueller report is simply that he is fundamentally unfit for office and presents a persistent danger to the integrity of the American constitutional order. That is the question that Congress and the country must now address.

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Presidential Obstruction of Justice

20 Thursday Sep 2018

Posted by crosbysamuel in Articles, Uncategorized

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2016 surveillance, bruce ohr, Carter Page, Collusion, communication, donald trump, FBI, federal bureau of investigation, firing, former, Impeachment, investigation, James Comey, Obstruction of Justice, president, release, russia, texts

This article from the California Law Review, written by Daniel J. Hemel and Eric A. Posner and entitled Presidential Obstruction of Justice, examines the standard for charging a United States president with obstruction of justice in light of his role as head of the executive branch and federal law enforcement. The authors assert that a president does violate the law when he obstructs justice with an improper purpose and explore what that improper purpose might be. They ultimately claim that when a president acts/obstructs justice to “take care that the laws be faithfully executed,” his purpose is proper, but that otherwise it is not.

This analysis is of course significant in light of President Trump’s firing of Former FBI James Comey which some believe was an act obstructing justice. The friction between Comey and Trump was brought to the forefront again on Monday when the President ordered that Comey’s communications be released to the public along with ” 20 pages of a 2016 surveillance application targeting former Trump campaign adviser Carter Page and Justice Department official Bruce Ohr’s notes related to the Russia probe.” Comey believes that Trump is trying to root out a procedural mistake made by the FBI, but is confident he will not find one.

comey.jpgCarsten Koall/Getty Images

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The DOJ Inspector General’s Report on the Clinton E-mail Investigation

15 Friday Jun 2018

Posted by impeachableoffenses in Uncategorized

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Anthony Weiner, Clinton e-mail investigation, DOJ Inspector General, IG Report, James Comey, Michael Horowitz

By Frank Bowman

Yesterday Michael Horowitz, Inspector General of the Department of Justice, released his report on the conduct of the investigation into Hillary Clinton’s handling of her email accounts while she was Secretary of State.  The notable take-aways from the report include:

  • The affirmation by the IG that the decision to decline prosecution of Secretary Clinton was legally sound.
  • The judgment that none of the conclusions reached by the FBI or the Department of Justice more broadly were influenced by partisan political considerations.
  • The observation that imprudent messages between several FBI employees created the appearance of bias on their part against Mr. Trump, even though no evidence exists to show that the private opinions of these persons affected the course of the Clinton investigation.
  • The conclusion that former FBI Director James Comey made significant errors of judgment and was “insubordinate” in his decisions about the resolution of the Clinton email investigation, particularly his July 2016 press conference in which he preempted the authority of the Attorney General to decide whether the case should or should not be prosecuted, and his decision in October 2016 to announce the reopening of the investigation upon discovery of (ultimately inconsequential) new emails on Anthony Weiner’s laptop.
  • The implicit judgment that both Attorney General Loretta Lynch and Deputy Attorney General Sally Yates failed to use their undoubted authority to rein in Comey’s tendency to go it alone.

Frankly, none of these conclusions will surprise anyone who has been following this story and has a basic knowledge of how the Justice Department works.  Insofar as the entire cavalcade of misjudgments may well have elected Donald Trump to the presidency, it is deeply tragic. But in itself it is nothing more than a tale of basically well-meaning people operating in a complex institutional and political environment … and screwing up.

A notable coda to the publication of the report was the virtually simultaneous publication in the New York Times of a responsive op-ed by Comey in which he persists in claiming that his judgments were correct.  I can’t help but find it a sad display.  It reaffirms my judgment of Comey laid out in detail in this post from several months ago.

Comey is an honest man, but fatally intoxicated by his own sense of unique personal rectitude.  The country and the world are in the grip of a rolling crisis because in 2016 Jim Comey thought his judgment so superior to everyone else’s that the rules and norms of the U.S. Department of Justice just didn’t apply to him.  The Times op-ed demonstrates either that his egotism is impenetrable or that he has built a wall of denial to protect himself from the personal devastation of admitting his mistakes.

Unfortunately, the rest of us have to live with them.

 

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There’s an FBI Spy in My Soup: Trump’s Latest Attack on Law Enforcement

21 Monday May 2018

Posted by impeachableoffenses in Uncategorized

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FBI spy, James Comey, Russia investigation

By Frank Bowman

There is a certain twisted brilliance in the media strategies of Mr. Trump and his enablers.  By constant repetition, they’ve managed to inject into the daily national narrative an absolutely nonsensical, but deeply subversive, idea.  In the Trumpian universe, the fact that, before the 2016 election, the Federal Bureau of Investigation was investigating reports of foreign efforts to influence the election, perhaps in cooperation with the Trump campaign, is cause for concern, not about the foreigners or the Trump campaign, but about the FBI.

In Trump World, America’s intelligence and law enforcement agencies are apparently supposed to ignore reports of foreign efforts to influence elections and penetrate a presidential campaign.  In Trump World, the ever-growing mountain of evidence that the Trump family and its retainers were having highly unusual contacts with Russians (and now, it appears, Saudis and Emiratis) is simply brushed aside with the mantras “no collusion” and “witch hunt.”  In Trump World, we reason backwards.  Rather than examining evidence to determine whether anyone in Trump’s sphere did wrong, we must assume that Trump and all around him are blameless, and therefore we must conclude that anyone who inquires into the possibility that wrong was done must be a member of the nefarious deep state.  In Trump World, to oppose, or even to question, Trump is to be a traitor.

Back in the real world, the idea that the FBI is, or ever was, controlled by a nest of secret liberals hostile to Republican presidential candidates is comical.  The Bureau is, and always has been, deeply conservative.  Moreover, although somehow this fact no longer seems to matter, during 2016, the FBI was headed by James Comey, a staunchly orthodox Republican famous for his prickly sense of rectitude and willingness to resist political pressure who had served in high Justice Department positions in Republican administrations. Still more to the point, whatever the FBI may have discovered about Trump during 2016, it kept entirely secret.  As did the Obama appointees who ran the Justice Department. And therefore, nothing the FBI learned damaged the Trump campaign. Which, of course, was in marked contrast to how the unproductive investigation of Hillary Clinton was treated.

So we know that the FBI conducted investigations of both presidential candidates and behaved in a way that hurt one candidate (Clinton) by publicly smearing her reputation without actually charging her with a crime, while helping the other candidate (Trump) by keeping its investigation of him completely secret.

Thus, here in the real world, using normal logic, we would look at the evidence of the FBI’s behavior and conclude one of two things:  Either the FBI consciously set out to hurt Clinton and help Trump, or (and this is Jim Comey’s story) it was not trying to help or hurt either candidate, but made errors that happened to help Trump and hurt Clinton.

The one thing that no one using real world logic would deduce from the evidence is that in 2016 the FBI was engaged in a plot to harm the candidacy of Donald Trump.  What it was doing when it investigated Trump’s connections with Russia was its job — trying to protect the United States from foreign efforts to subvert the government and the democratic process.

That Mr. Trump would try to turn this reality on its head is unsurprising.  That Republican elected officials and once-respectable institutions of American journalism like the Wall Street Journal would abet him in his distortions is despicable, and a shame none them should ever be able to wash away.

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Playing “20 Questions” With Trump

01 Tuesday May 2018

Posted by impeachableoffenses in Uncategorized

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James Comey, Jeff Sessions, Michael Flynn, Mueller questions, Obstruction of Justice, Questions for Trump, Robert Mueller

By Frank Bowman

The New York Times this morning released a series of questions which it says Special Counsel Robert Mueller’s team would like Mr. Trump to answer.  The provenance of this list is murky.

First, we don’t really know if it’s genuine.  Second, if the list is essentially genuine, it seems unclear whether the questions are actually those Mr. Mueller would like answered or are, instead, summaries in question form by Trump’s lawyers of broad topic areas Mueller’s people have said they’d like to discuss with Mr. Trump.  Third, the source of the list is uncertain.  According to the Times, the list did not come from Mueller’s team.  Which leaves people in the White House or others associated with Mr. Trump’s legal defense.

Although the question list is certainly a scoop for the Times, I’m not sure it adds much to our knowledge of the Mueller investigation.  All of the published questions concern issues or events that have been discussed ad nauseum in the public press.

That said, I am struck by the prevalence of questions that seem to relate primarily to obstruction of justice.  There is a set relating to the firing of former National Security Adviser Michael Flynn, a long set about the firing of former FBI Director James Comey, and, quite interestingly, a set about threats to the continued tenure of Attorney General Jeff Sessions.  In addition, several of the questions relate to the activities and potential termination of the office of special counsel itself.

My first reaction to the questions about Sessions and the special counsel’s office is that they serve as a kind of brush-back pitch — a warning that Trump’s threats to Mueller and his efforts to influence Mueller’s investigation are themselves legally and politically dangerous.

Beyond that obvious point, I find the heavy emphasis on obstruction of justice a tad disturbing.  It is undoubtedly true that obstruction of justice is a crime (albeit one for which, under current DOJ policy, a sitting president will not be indicted) and potentially an impeachable offense.  And it is also true, contrary to the assertions of Mr. Trump, that one can be guilty of obstruction of justice for impeding investigation of matters that ultimately prove not to be criminal.

Nonetheless, those who ardently oppose Mr. Trump — particularly those who long for his impeachment — must remember that this is a political process.  By which I mean that changing the public mind matters as much or more than legal fine points.  Suppose that, at the end of his investigation, all Mr. Mueller comes up with is evidence that Mr. Trump obstructed an investigation that produces no proof of other significant wrongdoing by Trump or those closest to him.  In that case, those who already despise Trump will hail the obstruction finding as a victory.  But Trump and Trump supporters will claim exoneration because, they will say, a president is entirely within his rights to squelch a politically damaging investigation into non-existent crimes.

That the Trumpists would be wrong on the law won’t matter a fig in the court of public opinion, or in the Republican precincts of the House of Representatives if, post-midterms, the House were to begin an impeachment inquiry.  It is perfectly clear that the hard core of congressional Trump supporters just aren’t interested in abstractions like prosecutorial independence or even the rule of law itself. The only result from Mueller that might change the progressively hardening partisan positions on Trump would be solid evidence of serious substantive crime.

Of course, Mr. Trump’s own tweeted response to the leaked questions, in which he claims there are “No questions on Collusion,” is flatly wrong.  Many of the questions relate directly to possible cooperation between Russian entities and the Trump campaign.  Still, one hopes that Mueller’s inquiries are focused more heavily on that end of things than the leaked queries suggest.

In short, a Trump critic should hope that the Mueller folks will, in the end, be able to show that Mr. Trump’s obstructive behavior was intended to conceal real, and incontrovertibly serious, misconduct.

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The Tragedy of James Comey

22 Sunday Apr 2018

Posted by impeachableoffenses in Uncategorized

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A Higher Loyalty, Comey, Comey book, Comey letter, Comey press conference, James Comey

By Frank Bowman

Young lawyers become prosecutors because they want to be the good guys.  They want to become the only kind of lawyer whose obligation is not to promote the interests of sometimes morally compromised clients, but only to seek the truth and do justice.  They also quickly understand that with the mission to seek justice comes immense power — to expose evil, to root out corruption, to protect the weak, to vindicate the wronged.  Young prosecutors who make it a career begin to see themselves as members of a kind of warrior priesthood, paladins of light in an ethically murky and sometimes blackly malign world.

I know this because many years ago I was one of the young postulants of this priestly caste, and I spent fourteen of my seventeen years in practice as either a state or federal prosecutor before becoming a teacher.  As corny as it may sound, in some deep place I remain a member of my old order.  I honor its mission.  I cherish its traditions and unwritten codes.

But those who truly understand what it is to be a public prosecutor in the American democracy recognize that membership in the order comes at a price, and accompanied by a particular set of risks.

The price is two forms of self-denial.  First, a commitment to relative asceticism — career prosecutors can certainly live a comfortable middle-class life, but so long as they remain in government, they will never see the vast riches of elite private practice.  Second, but more importantly, prosecutors must abide by a set of professional norms that elevates the pursuit of justice, respect for individual rights, and protection of the justice system over personal fame.

As a federal prosecutor, you are empowered to hunt those suspected of crime, but you are obligated to wield the immense resources at your disposal with restraint and in strict accordance with the rules.  You are granted many tools to unearth evidence, but you must analyze what you find dispassionately.  While an investigation is ongoing, you may not speak about its details publicly, no matter how high-profile the target and how intense the interest of the public, the press, or elected politicians.

You are commissioned to prosecute the guilty, but may not ethically subject anyone, however dodgy you personally may think them, to the risk of criminal conviction unless you believe the evidence proves guilt beyond a reasonable doubt. Therefore, if at the close of an investigation you indict, you announce the fact and thereafter do your talking in court, not on the courthouse steps or in private leaks to reporters.

If the evidence you collect does not merit indictment, you don’t proceed.  Then, whatever your personal feelings about that may be, you say nothing, or at most make an unadorned announcement of the fact.  Your job is to prosecute crime, not to make public assessments of personal character.

In short, the job is about justice.  It’s not about you.

Prosecutors can be heroes.  But it is the self-abnegating heroism of the warrior-monk, not the self-promoting heroism of the solo knight errant who rescues maidens and slays dragons in the hope of having bards compose ballads extolling his fame.  Unsurprisingly, however, people drawn to prosecution by the promise of action in the service of virtue can be seduced into seeing themselves as the second kind of hero.

A peculiar feature of a prosecutor’s life is that, although he is formally only a cog in a notably rule-bound machine, his day to day experience is of immense personal authority.  This is particularly true in court.  When you rise in the well of a courtroom to represent the United States, you are very much on your own.  The questions you ask, the words you choose, the arguments you craft are yours and no one else’s.  Even in making the decisions to bring or dismiss or plea bargain a charge, in all but the rarest cases, the individual prosecutor’s judgment will be dispositive.

One of the risks of becoming a career prosecutor is that, because you are so often in the right and so often confront people who obviously did wrong, in time you can begin to mistake the perpetual obligation to be right with inevitably being right. And as one rises in rank, filling offices in which one commands the resources and speaks with the voice of the United States Department of Justice, the deference that comes with such roles is immense.

It requires great discipline, deep self-awareness, and a strong measure of humility to keep remembering that the job is about justice and not about you.  And that doing the job means following the rules, formal and informal, of the prosecutor’s code, even if doing so may seem unwise to you personally in the heat of the moment.

Jim Comey is an honest man, whatever the prevaricator in the White House may say.  But he has not always been a wise one. And since the second half of 2016, he has repeatedly made grievous errors that very probably changed the history of America and the world, errors he might have avoided if he had adhered to the rules and longstanding norms of the United States Department of Justice.

Comey’s first error, now somewhat obscured by later ones, was the choice to hold a press conference in July 2016 to announce and explain in detail the conclusions of the FBI about the investigation of Hillary Clinton’s email practices while Secretary of State, including its decision not to recommend an indictment.  Note what I just said — “conclusions of the FBI.”

Comey candidly admitted at the beginning of his press conference that he had not consulted the Attorney General about the recommendations he was about to discuss or the opinions he was about render.  And he knew perfectly well how aberrational this behavior was.  He said:

This will be an unusual statement in at least a couple ways. First, I am going to include more detail about our process than I ordinarily would, because I think the American people deserve those details in a case of intense public interest. Second, I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.

The FBI is an investigative agency subordinate to the Attorney General.  It has no independent authority to bring or not bring indictments. Deliberations about whether to bring an indictment sometimes include FBI representatives, but the final decision rests exclusively with the prosecutors of the Justice Department and ultimately with the Attorney General.  And those deliberations are conducted in private, before the final decision is made, not in the public square.

To anyone with experience in the American criminal justice system, Comey’s arrogance was simply flabbergasting. By announcing publicly what he had decided the outcome of the Clinton case should be before discussing his opinion with the Attorney General or her authorized designates he blithely assumed for himself a power no FBI Director has.

Worse, Comey’s expansive statement at the press conference flagrantly violated the Justice Department norm against discussing the details of investigations that do not result in indictment.  That kind of exposition is disfavored because it always risks besmirching the character of the uncharged target of the investigation, while providing no forum in which to rebut the inevitable stain of having drawn prosecutorial scrutiny in the first place.

When the Department breaks with that norm, the decision to do so is made by the Department’s senior leadership, not by the FBI, which is, I repeat, merely a subordinate investigative arm of the Department.  And careful thought goes into what should and should not be said.

Therefore, when Comey chose to march up to the microphones and provide a dog-and-pony show about the Clinton investigation, complete with his personal opinions about her “extreme carelessness” and the like, he committed two cardinal sins: First, he ignored the fact that, as FBI head, he was a cop, and no longer a prosecutor — that the Attorney General, not the FBI decides who gets indicted. Second, he ignored the norm that the Justice Department doesn’t “explain” decisions not to indict when the effect of the explanation will be to smear the person not indicted.

His excuse — that the “American people deserve .. details [of the FBI’s investigation and conclusions] in a case of intense public interest” — was both arrogant and in some measure disingenuous. By announcing the FBI recommendation not to indict, he effectively preempted Justice Department prosecutors.  Once the FBI Director declared that there was no prosecutable case, prosecutors could hardly have decided otherwise.

But that, of course, was not the real objective of the Comey statement.  The senior leadership of the Justice Department would surely have concurred in the recommendation not to prosecute, but would probably have issued a much more conventionally terse explanation of the decision. Instead, Comey got out front with a statement that simultaneously took credit for what, given the evidence, was the only sensible prosecutorial choice, while at the same time including enough tut-tutting disapproval of Secretary Clinton’s behavior to deflect the ire of Clinton critics on Capitol Hill and beyond from the FBI and James Comey, Esq.

But you don’t get to ignore chains of command or defining norms of prosecutorial behavior because you think it will make the FBI, or you personally, look better.  The job is about justice, not about you.

Comey’s later decision to send his infamous letter to Congress mere days before the election saying that some unexamined Clinton emails had been found on Anthony Weiner’s laptop, and that the Clinton investigation might be reopened depending on what was in them, was even less excusable.  In that case, he violated yet another important Justice Department norm, which is not to comment on the status of pending investigations immediately prior to elections.  Why does the norm exist?  Precisely in order to prevent what happened in this case: breaking news about uncharged crimes has the potential to sway elections, even if, as proved true here, the charges have no merit.

Comey’s explanations of this decision are wholly inadequate.  He poses his choice as between disclosure and “concealment,” as if there is some obligation on the part of federal law enforcement to update the public or congress on every unsubstantiated lead in an investigation.  But the norm is precisely the reverse.  The Department and subordinate law enforcement agencies like the FBI don’t comment on the status of investigations until they are complete and they don’t comment on unsubstantiated leads at all.  Particularly not less than two weeks before an election in which the subject of an investigation is a candidate.

Comey claims that he had some special obligation to inform Congress about this lead because he had previously told them that the investigation was closed and that he’d advise them if that status changed.  In the first place, the general norm against non-disclosure of investigative details doesn’t change because of loose wording in a letter from the FBI Director.  More to the point, there was absolutely nothing in Comey’s congressional letter that compelled him to disclose an unchecked lead days before the election.

Comey’s real reason was the worry that, if he had not disclosed before the election and something important was found on the laptop, then he would have been criticized by Republicans for hiding important information.  To which the only possible response is — tough!  Either disclosure or non-disclosure of uncorroborated allegations about a candidate can affect an election.  The Justice Department policy against disclosure was created with full understanding of that dilemma. But it enjoins disclosure because only nondisclosure protects a candidate — like Hillary Clinton — whose electoral prospects will definitely be damaged by the release of information that may in the end prove baseless.

The mission of the Department of Justice is to convict the guilty, yes, but also to protect the innocent.  Another part of its mission is to ensure that the process of winkling out truth does not warp the democratic process.  If you work in the Department of Justice, or for its subordinate agencies, then no matter how high you climb, the job is still about justice.  It’s not about you.

Rod Rosenstein has been sharply criticized, and not without reason given the timing, for writing the memo about Comey’s errors that Trump used to justify firing Comey.  But everything in the Rosenstein memo — the facts and the judgments — was correct.   Comey should have been fired.  The only thing that makes his firing remotely controversial is that Mr. Trump sacked him for an unwillingness to do wrong in the future, rather than for the wrongs he’d done in the past.

Jim Comey is an honest man.  Or at least as honest as any inevitably flawed human can be.  But his basic honesty comes with two intertwined flaws. First, he knows he is honest, and on balance probably more honest than many people in public life.  And that leads to a level of sanctimony dangerous in a man granted great public authority.  Because if deep down you believe that you are morally superior, then you will be tempted to break rules and norms you see as having been created to cabin the base impulses of the less pure. But the prosecutorial norms Comey violated arose over long years to protect against both corruption and misguided virtue.

Second, although Comey is honest, he also has an irrepressible need to be seen as honest, indeed as more honest, and more forthrightly, courageously honest than anybody else.  He thirsts, it would seem, to be publicly acclaimed as the the spotless hero of his own saga.  And that is an especially dangerous trait in a law enforcement official. For such officials, it is not enough to be honest. One must also possess the virtue of self-restraint in the face of public criticism and a capacity for silence unless and until the law requires speech.

By choosing to publish a book and embark on an endless round of self-promoting interviews while the Mueller investigation is ongoing, Comey, tragically, confirms that his need for self-affirmation is stronger than his loyalty to the rules and norms of the justice system he purports to be defending.  He knows that he is a central witness in a potential obstruction of justice case against the president, whether that case is made in the courts or in an impeachment inquiry.  And surely he remembers that the very last thing any prosecutor wants is for his star witness to be parading around the country giving interviews and creating all the little inconsistencies and toeholds for cross-examination that can undercut the credibility of any witness.  And yet he seemingly cannot help himself.

For those of us who love the American justice system and would defend it against the daily assaults of the man in the White House, the claim to “A Higher Loyalty” in the title of the Comey memoir is bitterly ironic.

Trump and Comey are polar opposites in virtue.  But they are doppelgangers of ego.  Neither can bear that the world might see him other than as he sees himself.  As loathsome as Trump may seem to him, Jim Comey needs to understand that he, too, is hurting the Republic.

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A reality check for impeachment enthusiasts: House Judiciary Committee Republicans

03 Thursday Aug 2017

Posted by impeachableoffenses in Uncategorized

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Clinton e-mail investigation, Goodlatte, House Judiciary Committee, James Comey, Loretta Lynch, politics of impeachment

Last week, Bob Goodlatte (R-Va.), Chairman of the House Judiciary Committee, and nineteen of the other twenty-three Republican members of the House Judiciary Committee, sent a letter to Attorney General Jeff Sessions requesting that he appoint a second special counsel (in addition to Robert Mueller).  The list of things the Republicans want investigated is long, running to fourteen items, including Hillary Clinton’s e-mails and the investigation thereof, former Attorney General Loretta Lynch, former FBI Director James Comey, Mr. Trump’s post-election claims “that he was wiretapped by the previous administration,” and – this one is particularly rich – “inappropriate collusion between the DNC and the Clinton campaign to undermine Senator Bernie Sanders’ presidential campaign.”

This is, of course, not a serious document written by or for serious people.  It is instead a grab-bag compilation of pre- and post-election conspiracy theories and Trump Administration talking points aimed at deflecting attention from the Mueller investigation.  The letter is unaccompanied by any evidence that the events listed actually happened, or any legal argument that, if they did, the alleged misconduct amounted to criminal offenses.

For example, the first two items on the list — that former AG Lynch encouraged then-FBI Director Comey to “mislead the American people” by insisting that he refer to the Clinton investigation as a “matter,” and the “shadow cast over our system of justice concerning Secretary Clinton and her involvement in mishandling classified information” — are ludicrous as action items in a letter seeking a criminal investigation.  If Ms. Lynch did make this request to Mr. Comey, it would indicate that she was trying to minimize the political damage of the FBI probe to Secretary Clinton, but that is not a crime.  And federal prosecutors, whether regular or special, do not investigate non-crimes.  Nor does the Department of Justice investigate “shadows” over justice systems.

The letter is doubly frivolous in that few, if any, of the matters listed — even if they happened and were colorably criminal — would require a “special counsel.”

If Mr. Trump suspects he was “wiretapped” by the FBI, the NSA, the CIA, or any other federal agency, all he has to do is order the appointed heads of those agencies to inquire of their own subordinates.  If former Department of Justice officials are alleged to have behaved improperly, that would be a matter for the Department’s own Inspector General.  The need for a “special counsel” would arise only if politically appointed senior DOJ officials would have conflicts of interest in overseeing an investigation that could not be dealt with by individual recusal.  The only items on the list that might arguably fall into this category are the two or three proposing investigation into the foreign connections of the Clinton Foundation.  Such an investigation, though not presenting a conflict of interest under DOJ regulations, might call for a special counsel if the Attorney General concluded that investigating his boss’s former political adversary would present an appearance of impropriety.

But that, of course, is the most troublesome part of the Goodlatte letter.  Because — absent the most compelling evidence of criminality — such an investigation would be improper.  In the United States, successful candidates for political office do not use their newly-acquired powers to prosecute their defeated opponents.  That is a key marker of incipient authoritarianism.  The fact that twenty Republican lawmakers – virtually all of whom are lawyers – do not understand this most elemental of democratic political norms is profoundly disheartening.

It should also be a reality check for those hopeful that, given compelling evidence of impeachable conduct, Congress will act to remove Mr. Trump.  The sad fact is that, at least on the House side, Congress is not performing the role assigned it by the Framers of providing an institutional check on presidential misbehavior.  Indeed, particularly on the House side,  congressmen are actively enabling Mr. Trump’s misbehavior and thus actively abetting the steady degradation of the constitutional norms that have made the country work.  The Goodlatte letter represents a new low in this calamitous political degeneracy.

No president can be impeached unless a majority of the House of Representatives endorses that result.  Sadly, I think it fair to conclude that no kind or degree of deviancy or outrageousness will move a Republican House to impeach him, at least so long as Mr. Trump retains the loyalty of his Republican base.  And Mr. Trump continues to be supported by more than 80% of Republican voters.

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Frank O. Bowman, III


Floyd R. Gibson Missouri Endowed Professor of Law
University of Missouri School of Law

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