Im-Politic: Deconstructing Obstruction of Justice

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Constitution, Dianne Feinstein, FBI, high crimes and misdemeanors, Hillary Clinton, Im-Politic, impeachment, James Comey, James Lankford, James Risch, Marco Rubio, Michael J. Flynn, obstruction of justice, removal, Russiagate, Senate Select Committee on Intelligence, Trump

There have been so many important economic and foreign policy stories to write about these days, and certainly RealityChek will be covering lots of them. But this of course is #ComeyDay, as they’ve said on Twitter, and I thought the most useful item I could post today would focus on one of the central questions raised by the Russiagate controversy: Has President Trump committed an impeachable offense?

Before beginning, though, it’s vital to recognize that although the Constitution provides for impeachment (and removal – they’re two separate matters) of government officials, including the president, on the grounds of “high crimes and misdemeanors,” the Framers never defined this term. Not surprisingly, legal specialists have made any number of convincing arguments for infusing these words with some specific content. But at least based on this Congressional Research Service survey, the consensus seems to be that “high crimes etc” mean anything that a majority of the House of Representatives (which impeaches) and two-thirds of the Senate (which conducts the trial, and whose guilty verdict on any specific charges, or “articles” results in removal from office) believe it means.

So legally and Constitutionally speaking, the debate on whether the president is guilty of the specific crime of obstruction of justice is beside the point. Politically speaking, though, finding this kind of actual violation of criminal law would make impeachment and removal votes much easier to justify for lawmakers when they face the electorate.

The main evidence so far in favor of an obstruction charge consists of two claims made by Comey under oath in his opening statement today to the Senate Select Committee on Intelligence. First, according to the former FBI Director, in a one-on-one February 14 Oval Office meeting, Mr. Trump made the following comments about the bureau’s probe of former White House national security adviser Michael J. Flynn:

“‘He is a good guy and has been through a lot.’” He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, ‘I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.’”

Second, in phone calls with the president on March 30 and April 11, Comey said Mr. Trump referred to a “cloud” that was undermining presidency’s agenda that he wanted Comey’s help in lifting. In the first phone call, according to Comey,

“the President called me at the FBI. He described the Russia investigation as ‘a cloud’ that was impairing his ability to act on behalf of the country. He said he had nothing to do with Russia, had not been involved with hookers in Russia, and had always assumed he was being recorded when in Russia. He asked what we could do to ‘lift the cloud.’ I responded that we were investigating the matter as quickly as we could, and that there would be great benefit, if we didn’t find anything, to our having done the work well. He agreed, but then re-emphasized the problems this was causing him.”

Comey added that President Trump “finished by stressing “the cloud” that was interfering with his ability to make deals for the country and said he hoped I could find a way to get out that he wasn’t being investigated.”

In the April 11 call, Comey stated that Mr. Trump

“asked what I had done about his request that I ‘get out’ that he is not personally under investigation. I replied that I had passed his request to the Acting Deputy Attorney General, but I had not heard back. He replied that ‘the cloud’ was getting in the way of his ability to do his job. He said that perhaps he would have his people reach out to the Acting Deputy Attorney General. I said that was the way his request should be handled. I said the White House Counsel should contact the leadership of DOJ to make the request, which was the traditional channel.”

It seems clear, therefore, that the “cloud” references concerned the president’s belief that Comey should have informed the public that he personally was not being investigated by the FBI for anything. That is, it had nothing to do with the Russiagate investigation or the separate Flynn investigation. And responding to separate questions from California Democrat Dianne Feinstein and Florida Republican Marco Rubio, Comey explicitly agreed.

The question still remains, however, of whether Mr. Trump’s Flynn comments constitute obstruction. At this point, definitive answers aren’t possible. For one, the president’s personal attorney has denied Comey’s claim that any such Flynn-related statements were made at all. For another, as all the legal community seems to agree, obstruction of justice is a complicated act consisting of numerous criteria that need to be met. But what’s certainly noteworthy for the time being is what Comey himself has said about the matter – and what he hasn’t said.

It’s important to observe that Comey at one point did indeed tell the Senate panel, that although he found the Flynn remarks “very disturbing, very concerning,” he also said

“I don’t think it’s for me to say whether the conversation I had with the president was an effort to obstruct….that’s a conclusion I’m sure the special counsel will work towards to try and understand what the intention was there, and whether that’s an offense. “

Considering Comey’s willingness to expound at great length last July on Democratic presidential candidate Hillary Clinton’s innocence of the charge of criminally mishandling classified information on her personal server, that sounds coy at very best.

In addition, Comey was given repeated chances to characterize the Flynn statements as obstruction. For instance, Idaho Republican James Risch asked him whether the president “directed” or “ordered” him to “let it go.” Comey responded, respectively, “Not in his words, no” and “those words were not an order.”

Comey then added that “I took it as a direction” because “this is a president of the United States with me alone saying I hope this. I took it as, this is what he wants me to do. I didn’t obey that, but that’s the way I took it.”

Also pertinent: In response to a question from Rubio, Comey said that President Trump never asked him to “let go” the Flynn investigation after the February 14 meeting. Moreover, Comey told Republican James Lankford of Oklahoma that neither any White House nor Justice Department staffers, nor the heads of any of the intelligence agencies ever mentioned to him dropping the Flynn probe.

As Lankford concluded: “The key aspect here is if this seems to be something the president is trying to get you to drop it, it seems like a light touch to drop it, to bring it up at that point, the day after he had just fired Flynn, to come back here and say, I hope we can let this go, then it never reappears again.”

Keeping in mind that other shoes could always drop, that’s an observation I hope will remain front and center as the Russiagate probes – and press coverage – drag on.

Our So-Called Foreign Policy: Initial Thoughts on the “Torture Report”

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"Torture Report", 9-11, Afghanistan, Al Qaeda, Barack Obama, CIA, Dianne Feinstein, George W. Bush, Iraq, ISIS, Leon Panetta, Our So-Called Foreign Policy, Saddam Hussein, Senate Select Committee on Intelligence, Syria, Taliban, terrorism, torture

I admit it: My views on the Senate Select Committee on Intelligence Democratic staff’s new “torture report” are biased by my views on the Iraq War and the use of so-called harsh interrogation techniques themselves (whether they fall under some legal definition of torture or not). I was and still am in favor of the former and support the latter. I’m hoping that others who analyze and comment on it will be just as honest.

I can’t yet comment on any of the details or substance of the report, since I have not read either the Majority publication or the Republican staff response. (Hats off to you if you have already.) But I do feel able to write usefully about Committee Chair Dianne Feinstein’s decision to release itself, although admittedly the procedures and the content are not entirely separate issues. And I consider it to be a huge mistake.

The two preceding paragraphs may surprise many who know me either personally or through my writings. Re the former, yes, indeed, I was strongly opposed to the Vietnam War, and strongly supported the media’s publication of the Pentagon Papers and Congress’ exposure of CIA wrongdoing during the Cold War. Re the latter, I remain strongly opposed to most of America’s post-Cold War interventions abroad, including attacking Syria to punish its use of chemical weapons.

But I oppose publication of the new Senate report, and have supported the Iraq War and the torturing (from this point I’ll use this term for convenience’s sake, not as a moral or legal judgment) of prisoners in the war on terrorism for a reason that’s straightforward analytically: I never viewed preserving the western orientation of Vietnam or most of the other developing countries that became Cold War battlegrounds to have been vital interests of the United States, or even close. Because it never mattered who controlled Cuba or Vietnam or Guatemala or other poor and weak countries lacking important resources or any other assets, CIA assassination attempts and other misdeeds that supported broader such Cold War policies were in my view completely unnecessary.

By contrast, I consider the ouster of Saddam Hussein and the destruction of Al Qaeda to have been decidedly vital interests. You can read my Iraq views here. Regarding the anti-terror campaign, it involves preventing another 9-11 – a threat that’s also raised by the prospect of ISIS consolidating control over large chunks of Iraq and Syria, and turning this territory into the kind of terrorist haven that the Taliban offered Al Qaeda in Afghanistan. If keeping the American homeland safe from attack isn’t a vital interest, I don’t know what is.

So it shouldn’t be too surprising that I support extreme means of achieving this goal, including those used by the CIA to extract information from “detainees.” Would I back even harsher techniques? I still need to think this through – just as their opponents need to think through whether they would forego water-boarding etc to save American lives (or, more pointedly, to save the life of one of their own loved ones).

The empirical evidence would certainly and properly bear on my final judgment. A least according to President Obama’s former CIA director, Leon Panetta, no one’s idea of a Republican or neocon whacko, it’s far more supportive of torture than the Majority report apparently contends.

I’d also be influenced by the unavoidable reality that war inevitably entails agonizing moral dilemmas, tragic misjudgments, and the deaths of innocents. And don’t forget the frequent need to make life-and-death decisions in real time, without remotely perfect knowledge. (Can you imagine the pressure decision-makers felt in those early hours, days, and weeks following 9-11?) The outrage so strongly expressed by torture opponents indicates an equally strong determination to define these complications out of existence.

Lastly, on the matter of substance, I would need to know whether torture had been authorized by both the President and Congress. No representative system of government is worthy of the name unless elected authorities determine overarching policy and guidelines in an area like national security. In immediate post-crisis circumstances, as with 9-11, the executive branch needs to take the lead. But the legislature must be brought in before too long. Of course, in this case whether the CIA ignored or breached guidelines laid down by U.S. leaders is still being hotly debated.

Which brings us to the procedural question presented by the release, and here I don’t see much room for reasonable debate. Whether you agree with it or not, the United States is indisputably engaged in a global campaign against terrorism that’s been prosecuted vigorously now by two American presidents (including Mr. Obama). As a result, it’s been ratified by repeated presidential elections. This conflict is highly unconventional conflict, it’s waged against genuinely shadowy opponents, and American forces are serving in any manner of dangerous positions on many kinds of front lines.

As a result, the prospect that the report’s release at this time could expose them to further risk – as acknowledged by the Obama administration – makes Senator Feinstein’s green light completely unacceptable. When those dangers are past, America can air linen that was dirtied years ago, not smack in the middle of what is very much a shooting war.