“I hope you can let this go.”
Those are President Trump’s words, according to the former F.B.I. director, James Comey…
No “allegedly.” No caveat of the details buried in the original story.
Mr. Comey shared the existence of the memo with senior F.B.I. officials and close associates. The New York Times has not viewed a copy of the memo, which is unclassified, but one of Mr. Comey’s associates read parts of it to a Times reporter.
And yet, media start screaming from the rooftops that this happened, that this is fact. And it may very well be fact. Or perhaps mostly accurate. Or not at all, since at this point Jim Comey has yet to confirm its truthfulness and no one has seen this memo. Yet, as the New York Times informs us, “those are the president’s words, according to…Comey.”
“I hope you can see your way clear to letting this go, to letting Flynn go,” Mr. Trump told Mr. Comey, according to the memo. “He is a good guy. I hope you can let this go.”
That Comey would write a contemporaneous memo is hardly surprising. Many of us do that as a matter of routine practice, make notes of conversations, whether in person or by phone, of matters that may prove important later on. We want to memorialize the words, time and date, because we may need to rely on them in the future. You can’t remember everything, and it’s easy to just write it down at the time so that it’s there later, when you need it. No big deal.
Except the media didn’t hestitate to gasp for air before spreading the “breaking” news everywhere that this was 100% true, real, fact, even though it’s merely double hearsay at the moment. Not only was it promoted everywhere as true, but the next steps were almost immediately taken; what does it mean?
At Lawfare, they launched into an explanation of obstruction of justice with this proviso.
It is important to remember that the Times story contains only snippets of the reported Comey memo, so the analysis below is thus necessarily preliminary, based on the limited facts we have access to at this point. Much remains unknown and the specific facts that will emerge in the days to come matter a great deal.
The only fact they have is that the Times reported it, since nothing the Times reported is yet fact. While the snippets reported are certainly limited, it’s not merely a problem because they’re just snippets, but because they’re merely double hearsay reported snippets, as in there are no underlying facts whatsoever as yet. Just a story.
Under 18 U.S.C. § 1505, a felony offense is committed by anyone who “corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation in being had by either House, or any committee of either House or any joint committee of the Congress.”
The key word is “corruptly,” since we’re glossing over whether the discussion occurred at all, taking the story for granted.
18 U.S.C. § 1515(b), defines “corruptly” as “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information”
The question, since we’re way past the assumption that it happened, is whether Trump was acting with an “improper purpose,” the mens rea element. For those who believe that every breath taken by Trump is with improper purpose, this isn’t a question. For purposes of legal analysis, however, it’s hardly so simple.
The White House issued a pool press release denying the conversation wherein Trump uttered the quoted words happened. The media, if it mentions this at all, dismisses it out of hand. What else would you expect of Trump? What else would you expect of the media?
There can be no indictment of the president for obstruction of justice, as he’s immune from prosecution during his term of office, but obstruction would serve as a basis for impeachment, as it has before with Nixon and Clinton
In addition to this story, there are the dots surrounding Trump, Comey and the two together that can be connected to construct a plausible, if not definitive, case against the president for obstruction of justice. Whether these dots, such as the loyalty oath Trump allegedly demanded of Comey, was fact, or as truthful as the media has reported it to be, remains another underlying question that has yet to be proven by facts, and yet widely assumed to be true. It’s part of the myth, and questioning the myth is akin to denying there is a god. Heresy will not be tolerated.
In response to these connected dots, the theory of obstruction, there are defenses to be offered even if there is a Comey memo, it says what it’s reported to say, and Comey is willing to testify to the same. Was it a plea for mercy by the president for a man who served his nation? Was it a plea for calm in a political storm that threatened to overcome the ability of a government to function?
These may seem close to the mens rea required, but nuance is critical when distinguishing between corrupt purpose and lawful, even if misguided, purpose. There aren’t many willing to argue that Trump doesn’t have his “misguided” moments. Even when you attribute the worst to every move Trump makes, that does not prove that his intent was improper from his perspective.
But just as Axios is busy twitting its little butt off about Comey’s revenge, there remains the problem that the media, as a whole, has gotten way ahead of itself and leaped over that one vital detail: there is no direct evidence of any sort showing that any of this is true. Yet.
Update: Surprisingly (if not shockingly), The Hill takes a step away from the edge and into reality:
However, if this is food for obstruction of justice, it is still an awfully thin soup. Some commentators seem to be alleging criminal conduct in office or calling for impeachment before Trump completed the words of his inaugural oath of office. Not surprising, within minutes of the New York Times report, the response was a chorus of breathless “gotcha” announcements. But this memo is neither the Pentagon Papers nor the Watergate tapes. Indeed, it raises as many questions for Comey as it does Trump in terms of the alleged underlying conduct.
After running through their questions, it concludes:
For all of these reasons, we need to move beyond the hyperventilated pronouncements of criminal conduct or impeachable offenses based on this memo. This conversation in the Oval Office is a valid matter of concern and worthy of further investigation. It is not proof of an impeachable offense any more than it is proof of a crime.
Notably, they still take for granted that the conversation happened, that it’s a fact, when we have yet to reach that point. But at least it suggests that scrutiny is in order before we burn the witch, which is better than what the rest of the media has done.