The Downward Spiral

 

Last week, I questioned whether President Donald Trump might have potentially engaged in the obstruction of justice when he fired then-FBI Director James Comey. Yesterday, another bombshell. The alleged Comey memo. The memo itself has not been seen by the public (or the reporter who broke the story), but if what’s been reported is, in fact, in there — that the president first cleared the room of both Vice President Mike Pence and Attorney General Jeff Sessions before expressing his not-so-subtle “hope” that the Flynn investigation be dropped — followed by the firing of Comey when that “hope” was not met, then I don’t think we are in the land of speculation anymore. Instead, we have entered the heart of obstruction of justice land, for all the reasons Alex Whiting and others have so ably laid out. This is true for both purposes of criminal prosecution and impeachment.

To be clear, I am not suggesting that either is likely to happen, at least in the short term. We don’t yet know what’s true and what’s not. And there are some pretty obvious political barriers to both. (See Ryan Goodman on this point here). Not to mention two OLC memos concluding that sitting presidents are immune from criminal prosecution. (Note, however, that this is not something the Supreme Court has ever ruled on.)

But the political winds can change. And do — often quickly. (Think back just a year ago: Trump’s then-still-shocking ascendency in the Republican primaries was treated as a near guarantee that Hillary Clinton would win the presidency.)

So let’s consider what we both know and what has been alleged, with a focus on impeachment: 

  • On Tuesday, May 9, Trump fired Comey, who was leading the criminal probe into the Trump campaign’s ties to Russia, as well as the separate investigation of Michael Flynn.
  • Over the next several days, the grounds for that firing kept shifting. Initially, it was done on the basis of a memo from the deputy attorney general, as well as the sudden purported concern about the way the Clinton email investigation had been handled.  Then it turned on Trump’s claim that Comey simply “wasn’t doing a good job.” A few days later Trump said he had been planning on firing Comey for some time, and would have done so regardless of what the deputy attorney general told him.
  • In the meantime, there were reports that Trump had demanded a “loyalty” pledge from Comey – something Comey allegedly (and appropriately) rejected.
  • And now we have news of a memo written by Comey that suggests Trump cleared Pence and Sessions out of the room and then expressed his “hope” that the Flynn investigation would be dropped.
  • All this is on the heels of the White House’s decision to keep Flynn in his position – and even allow him to sit in on a telephone conversation between Trump and Russian President Vladimir Putin – for 18 days after then-acting Attorney General Sally Yates warned the White House of his ties with Russia and his potential vulnerability to blackmail.

Together, if true, these events at least suggest a president intent on getting his FBI Director in line, meaning getting him to tamp down the pending investigations and clear one of his close associates (Flynn), and then firing him when he failed to do so. If this doesn’t sound Nixonian, I don’t know what does. Meanwhile, the shifting justifications, as well as the request that the attorney general and vice president leave the room, are at least suggestive of the fact that he did so with a guilty mind.

We also shouldn’t lose sight of what else happened this week. On Monday, we learned that Trump – in a seemingly cavalier fashion – disclosed what was at the time highly classified information that had been shared with us by the Israelis. It was so sensitive that it hadn’t even been shared with our key allies.  This is serious business, with potentially long-term consequences for our national security. It undermines a key counterterrorism alliance. It significantly erodes the willingness of Israel – or any other key partner – to share with us the kind of intelligence we need to keep the nation safe. And it potentially puts a source at risk. If the reports are correct, it was all done to impress a foreign minister from a nation that spent the last year trying to erode our democracy.

This is grave, and even more damaging than any attempts to tamp down the Russian investigation. If our allies are no longer willing to share with us sensitive information critical to protecting our nation, our security will be jeopardized.

On Tuesday, Sen. Bob Corker (R-TN) described the administration as being caught in a “downward spiral.”  That seems an even more apt claim today. The key question now is: How far does it go before Congress steps up to the plate?

Image: Chip Somodevilla/Getty

 

About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).