For the first time, the White House appeared to be running scared, following Comey’s testimony yesterday before the Senate Intelligence Committee
Comey dramatically raised the stakes of the Russia investigation and put Trump directly in the line of fire for the first time.
Significantly, Comey left no doubt that Russia was behind a systematic state effort to undermine the U.S. election and called it one of the gravest threats to democracy in the nation’s history.
Even more damning, he said the president never expressed any concern about Russian meddling, despite the gravity of the act. Former Bush Vice President Dick Chaney called the Russia hacking an act of war.
The best the White House could do to respond was to pony up the president’s private criminal lawyer Marc E. Kasowitz, some diehard Capitol Hill supporters and right-wing media and propaganda outlets.
Absent facts to counter Comey’s statements, Kasowitz and others resorted to character assassination.
Kasowitz denied Comey’s claims that Trump had asked for his loyalty and said the president “never sought to impede” the FBI’s work or directed or suggested that Comey stop investigating “anyone.”
Kasowitz accused Comey of being a “government leaker.”
The president’s own response today came characteristically on Twitter.
“Despite so many false statements and lies, total and complete vindication…and WOW, Comey is a leaker!” he wrote.
But Comey’s testimony was virtually bulletproof, and even worse for the president, would meet the legal standards for evidence in any criminal or impeachment proceeding.
Today, a number of legal scholars weighed in and found the testimony damning for the president.
“It’s staggering—for all the bizarre things that have happened in these 112 or 113 days, this is really like the 13th chime of a clock,” said Harvard constitutional law professor Lawrence Tribe on MSNBC.
“You’re essentially dangling in front of the person who’s supposed to be investigating the chaos swirling around you, and perhaps you, you’re basically saying, ‘If you will assure me that I’m not going to be under investigation, then maybe I’ll keep you on. We’ll see what happens.’ It’s essentially the language of bribery. It’s the language of the underworld, of racketeering, not the language of a president who is supposed to be enforcing the rule of law.”
Nancy Gertner, a retired federal judge in Massachusetts who is now a senior lecturer at Harvard Law School, said Trump’s actions merited further investigation into obstruction of justice.
Comey told the Senate Intelligence Committee he believed President Trump was telling him he should drop the Flynn criminal investigation during several private conversations.
The president said he “hoped” Comey would “let this go,” asked him for his personal “loyalty,” and urged him to clear Trump’s name publicly from a broader probe into Russian election hacking.
Particularly damning for the president are Comey’s contemporaneous, detailed memos of his conversation.
“If what Comey said is believed, it could justify a further investigation into obstruction of justice on the part of the president,” Gertner told the Harvard Gazette.
“The matter certainly warrants an investigation. The elements of obstruction of justice include an act whose natural and probable consequences are to interfere with the administration of justice in some way,” she added.
In the case of the president, the “act” can be “go easy on Flynn” or “lay off the Flynn investigation.” That clearly is an act that qualifies for obstruction of justice. And in addition, Comey said “I took it as an indication that he wanted me to lay off the investigation.” Here’s a sophisticated player, a former U.S. Attorney, FBI agent, FBI head, who said, “I understood what he was saying, and that’s what he was saying.” So concerned was he about it, in fact, that he did not share it with underlings for fear it would dampen the investigation. It does meet the legal standard for obstruction. The problem is that it’s Comey’s word against the president’s. So it’s not the kind of case that a prosecutor would go forward on without additional information. But in terms of an act that generically fits the standard? Yes, this is an act that fits the standard.
“The question is, what was the president’s intent? Was it an aside as they were walking into a meeting? Well no, it wasn’t. The president had talked to Comey about loyalty. It was at a meeting in which he asked everyone else to leave, which is an enormously suspicious thing,” she explained.
As for Comey’s personal demeanor before the committee, Gertner called him “an amazing witness.”
“He’s a careful lawyer, so he knows what to say. But he’s also an incredible storyteller, an impassioned and clear one. So his account is not told in dry, legal language. He said over and over again that the Russian interference in our election is “a big deal.” That suggests that when Trump hopes to shut down the Flynn investigation, he’s wanting to shut down an important piece of an important investigation. Comey suggests that’s what he’s really saying. This is a major investigation, and Flynn is obviously an important player. And Comey suggests the president is communicating “shut it down.”
Contrary to Kasowitz’s suggestion, there was nothing illegal about Comey’s decision to tell a reporter—directly or indirectly—about the contents of the memos he’d written after his meetings with the president.
Gertner as well as other legal experts said Comey violated no law by sharing notes of his memos to a friend to make them public. “The action of releasing this information was incredibly self-protective. I don’t think there is anything illegal,” she said.
Furthermore, the notion that the conversations described in those memos were “privileged” is nonsensical, said University of Texas School of Law professor Stephen Vladeck
He said nothing in Comey’s notes was classified or “privileged” as Kasowitz and the president claim, Vladeck told Slate magazine.
‘The President can claim privilege over whatever he wants to, but it’s irrelevant here; privilege is a defense against an effort to compel disclosure (for example, against a subpoena or a warrant).
“It’s a shield, not a sword. Here, where a former government employee is voluntarily testifying / acting, there just aren’t any criminal consequences for violating even a valid claim of privilege,” he said.
Gertner added: “One other thing that was interesting: Comey said that the president was not then under investigation. But there’s no question that he is now. He is plainly under investigation for obstruction of justice.”
“It’s staggering. That is clearly, on its face, obstruction of justice,” Tribe said.