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How to cripple a presidency in 10 days
How to cripple a presidency in 10 days
- Trump called Comey a "showboat" and "grandstander," and then spilled the beans
- Trump's plan remained an apparent mystery even to many of his own staff
(CNN)The stock market had closed for the day, nine-to-five jobs had let out about 40 minutes earlier, and the evening commute was heating up. It was, as far as could be said in these odd times, a normal Tuesday.
White House press secretary Sean Spicer made the announcement to reporters, in person and through an email statement: President Donald Trump had fired FBI Director James Comey. Trump's former bodyguard, now an Oval Office aide, delivered the message to FBI headquarters less than an hour earlier. Comey, who was out of town, would find out like most Americans, from a television.
The decision, Spicer explained, was "based on the clear recommendations of both Deputy Attorney General Rod Rosenstein and Attorney General Jeff Sessions." Their memos were soon made public.
Rosenstein's was cutting. Over a little more than two pages, he established a damning catalog of Comey's missteps in handling the Hillary Clinton email investigation. "As a result," he concluded, "the FBI is unlikely to regain public and congressional trust until it has a director who understands the gravity of the mistakes and pledges never to repeat them."
We know now that White House officials were as taken aback by Comey's firing as anyone else. By that night, top administration press aides emerged from among the bushes and scattered themselves across the airwaves to make the President's case. Their pushback, though, would only make things worse, setting the stage for a 10-day circus in which Trump's presidency began to veer, perhaps inevitably, out of control.
Wednesday: The blowback
The initial narrative, that Trump acted in response to his DOJ's points, began to crumble just hours after the dismissal was announced. The President, multiple White House officials told CNN, had been teasing the idea for some time. Comey's testimony a week earlier on Capitol Hill, in which he answered questions under oath about the Russia investigation and took some heat for his management of the Clinton probe, did not go over well in the Oval Office.
But Trump's plan remained an apparent mystery even to many of his own staff. Vice President Mike Pence too relayed the initial explanation.
In an interview Wednesday -- not 24 hours after Comey was fired -- he told reporters this: "Let me be very clear that the President's decision to accept the recommendation of the deputy attorney general and the attorney general to remove Director Comey as the head of the FBI was based solely and exclusively on his commitment to the best interests of the American people and to ensuring that the FBI has the trust and confidence of the people this nation."
Those were Pence's words on Wednesday, May 10. But on the same day, Trump began to hint that the issue had not been so cut and dry. He told pool reporters in the Oval Office for some pictures of his meeting with Henry Kissinger that Comey was removed "because he wasn't doing a good job." The issue seemed more immediate than his team had first (and repeatedly) claimed.
Thursday: The reversal
When Trump sat down for a previously scheduled interview on Thursday, May 11, with "NBC Nightly News" anchor Lester Holt, the White House explanation finally imploded.
First, Trump called Comey a "showboat" and "grandstander." Then, after being asked if he requested Rosenstein write his memo, Trump spilled the beans.
"I was going to fire Comey," he said. Holt jumped in with another question, but Trump barreled on.
"Oh, I was gonna fire regardless of recommendation," he added. "And, in fact, when I decided to just do it, I said to myself, I said, you know, this Russia thing with Trump and Russia is a made-up story, it's an excuse by the Democrats for having lost an election that they should have won."
In a few seconds, Trump had completely contradicted everything his aides had been saying for nearly two days. Comey had not been let go for his Clinton misadventures, but because -- in the most charitable reading -- Trump was annoyed by his work and remarks about the probe into allegations of ties between the President's campaign and Russia.
Friday: The threat
On the morning of Friday, May 12, Trump awoke to defend the many staff and allies he'd allowed to go public with a bogus telling of the Comey saga.
"As a very active President with lots of things happening, it is not possible for my surrogates to stand at podium with perfect accuracy!" he tweeted.
The tweet did less to exonerate his people than further reduce their credibility. The message read more like: Not only had top staffers and the Vice President been very publicly wrong on Comey, but no one should expect or trust them to be right in the future.
At 8:26 a.m., Trump tweeted again. This time to threaten Comey directly.
"James Comey better hope that there are no 'tapes' of our conversations before he starts leaking to the press," Trump wrote, introducing for the first time a suggestion that the President had recorded their conversations. It came across as menacing, generally surprising, but also a bit of a head-scratcher. What did Trump have on Comey? And if he did have something, why introduce it this way?
Spicer provided no new information during an afternoon press briefing. Of the tweet, he said: "The President has nothing further to say on that." The White House has maintained its silence on the issue. Whether Trump records his Oval Office discussions is, even now, an open question. Are there tapes? No one knows.
And no one knew it then, but the episode did set the stage for an ironic twist — just a few days later.
The weekend: The silence...
As it became increasingly clear that the Comey decision would not pass lightly, the White House mostly went quiet. Rex Tillerson, the secretary of state, went on a Sunday show to discuss Trump's coming trip abroad. That was about it.
Meanwhile, Saturday Night Live paraded their devastating version of Spicer through the streets of Manhattan.
The angst was mounting, now on both sides of the aisle. And as it grew, Trump's miscalculations were laid bare.
He had expected that Democrats, frequent critics of the man many blamed for costing Clinton the election, would take news of Comey's sacking as welcome revenge. Instead, they ramped up calls for a special prosecutor or independent commission. He thought Republicans would circle the wagons tight. But even the GOP, especially officials facing reelection battles in 2018, mostly cursed the decision. And by putting the onus at first on his own Justice Department, Trump had poisoned an already murky well.
"I think in many ways our institutions are under assault both externally -- and that's the big news here is the Russian interference in our election system -- and I think as well our institutions are under assault internally," former Director of National Intelligence James Clapper said on CNN's "State of the Union."
And the perpetrator, he made clear, was the President.
Monday: The chatter
Once again, word came after the bankers had called it quits.
The Washington Post, citing "current and former US officials," reported that Trump disclosed highly classified information -- apparently as he bragged about the breadth of intelligence at his fingertips -- to the Russian ambassador and foreign minister during their meeting the previous week.
He did not, CNN reported, directly reveal the source of the information, but intelligence officials expressed concern that Russia would be able to take what they heard and use it to suss out information on its origins.
The White House quickly denied the story. Dina Powell, Trump's deputy national security adviser for strategy, was at the meeting. She offered the most forceful response, saying in a statement provided by Spicer, "This story is false. The President only discussed the common threats that both countries faced."
Congressional leaders were not impressed. Tennessee Sen. Bob Corker, an early Trump backer, said the report would be "very, very problematic" if accurate.
"They are in a downward spiral right now," he said of the White House, "and have got to figure out a way to come to grips with all that's happening."
Corker noted that Trump's national security team was top-notch, and it fell to National Security Adviser H.R. McMaster to set the record straight.
"The story that came out tonight, as reported, is false," he told reporters clustered outside the White House, adding that, "At no time -- at no time -- were intelligence sources or methods discussed."
But a closer look at his words undermined the desired effect. By referring to the story "as reported," McMaster effectively allowed for its main thrust to be entirely true. He never specified what detail -- in a scoop that was being confirmed by a range of news organizations -- was "false." His claim that there were no "intelligence sources or methods discussed" went over slightly better, if only because no one had suggested otherwise.
Tuesday: The memo
In any event, Trump would undermine his team, again, the next morning with another round of tweets.
"As President I wanted to share with Russia (at an openly scheduled W.H. meeting) which I have the absolute right to do, facts pertaining to terrorism and airline flight safety," he wrote. "Humanitarian reasons, plus I want Russia to greatly step up their fight against ISIS & terrorism."
It was 7:13 a.m. A new day. And a new ticking time bomb was ready to explode.
Again, the news arrived with the twilight. It was The New York Times's turn now; the newspaper published an early evening report that Trump had, in a private meeting with Comey, asked the since-deposed FBI director to consider shuttering the federal investigation into former national security adviser Michael Flynn.
"I hope you can let this go," Trump said, according to a contemporaneous memo authored by Comey himself. The White House denied the story, but offered nothing further by way of explanation. If there were "tapes" of Oval Office conversations, as Trump had suggested days earlier -- perhaps the kind that could discredit the memo? -- they remained a rumor as officials on Capitol Hill scrambled.
Democrats pounced, immediately positing that Trump, if the reports were true, could be guilty of obstructing justice. Republicans all but went silent. Legal experts delivered a grim prognosis.
"Telling the FBI director to close down an investigation of your senior campaign adviser for his activities during your campaign for president, if that's true, that is obstruction of justice," CNN senior legal analyst Jeffrey Toobin said in the aftermath.
Further details of the encounter did little to flatter Trump. A source close to Comey told CNN that the President had made the statement after asking Pence and Attorney General Jeff Sessions to leave the room.
"(Comey) wrote a number of memos," the source added. "A great many, if not all, were about contacts with Trump -- particularly the ones that made him feel uneasy."
That queasiness was becoming increasingly common by early in the week. The frustration among Republicans, though, was more publicly beginning to center on the man in charge.
"This is on him," a top Republican close to the White House told CNN's Jeff Zeleny.
It had been precisely a week, from one Tuesday night to another, since Trump lit the fuse. And the tick-tick-ticks on Twitter were growing louder still.
Wednesday: The special prosecutor
If Comey's firing had unnerved the capital, and reports on Trump's remarks to the Russians confirmed bipartisan worries about his ability to handle the awesome power in his grasp, the revelation of the memos provoked what many, even days earlier, dismissed as folly or a partisan Democratic pipe dream.
On a sweltering, swampy Washington morning, the prospect of impeachment now hung in the air. Unlikely, yes, but no longer outside the borders of reality. By Wednesday night, the most significant actor in the potential unraveling of Trump's presidency would be hired and set to work.
At 6 p.m., news broke that Robert Mueller, the respected (and in many quarters, feared) former FBI director under Presidents George W. Bush and Barack Obama, had been appointed as special counsel in charge of the investigation into Trump associates and Russia. The man who gave him the job: Deputy Attorney General Rod Rosenstein.
By Rosenstein's pen, Mueller is now authorized to pick up where Comey, his friend and former colleague, left off. His purview extends to "any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump ... any matters that arose or may arise directly from the investigation.
"If the special counsel believes it is necessary and appropriate," Rosenstein wrote, "the special counsel is authorized to prosecute federal crimes arising from the investigation of these matters."
Like Richard Nixon, Ronald Reagan and Bill Clinton before him, Trump's White House would now be forced to operate under the specter of an investigation taking place largely outside its influence. Where it leads, if history serves as a guide, is anyone's guess.
Trump greeted the news, and closed out the day, with a sober reply.
"As I have stated many times, a thorough investigation will confirm what we already know -- there was no collusion between my campaign and any foreign entity," he said in a statement. "I look forward to this matter concluding quickly. In the meantime, I will never stop fighting for the people and the issues that matter most to the future of our country."
Thursday and Friday: The future?
But by Thursday morning, irregular order had been restored.
"This is the single greatest witch hunt of a politician in American history!" Trump blared in an early morning tweet.
After a meeting with Colombian President Juan Manuel Santos, the leaders moved to the White House's East Room to take questions. Trump was immediately questioned about the appointment of Mueller.
"Well, I respect the move, but the entire thing has been a witch hunt," Trump said of the investigation. "There is no collusion between, certainly, myself and my campaign. But I can always speak for myself and the Russians -- zero."
Asked if he had fired Comey in an effort to halt or stall the Russia probe, Trump answered quickly, forcefully, "No. No. Next question."
Whether or not the President answered that particular question honestly, more than anyone else's past behavior or future actions, could be the ultimate arbiter of his fate.
Earlier that afternoon, Rosenstein told senators in a closed-door meeting that he was aware that Comey was going to be removed even before he wrote his memo. In nearly two weeks of scattered political earthquakes and aftershocks, his words hardly moved the ground. But the message was clear enough: He, and by proxy, the people most directly in charge of the investigation, now didn't plan to tiptoe around Trump anymore.
How that plays with a President who so far has shown himself to be incapable of managing his emotions -- the Comey firing being, at its heart, a petulant swat at someone he reportedly described as a "nut job" to Russian officials during their fateful meeting -- is anyone's guess.
The White House lawyers, though, don't seem to be taking any chances. Sources told CNN on Friday they've begun to study the ins and outs of the impeachment process.
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- Danny Cevallos: Many suggest that a president asking an FBI director to halt an investigation of a senior campaign adviser constitutes obstruction of justice
- Cevallos says there are plenty of other transgressions that can be creatively applied to a president's conduct to spur impeachment
(CNN)President Donald Trump reportedly told former FBI Director James Comey, referring to the investigation into the activities of former national security adviser Michael Flynn, that he hoped Comey would "let it go," according to a contemporaneous memo authored by Comey.
Since then, many have suggested that a president asking an FBI director to halt an investigation of a senior campaign adviser constitutes obstruction of justice, and is an impeachable offense.
Obstruction of justice is a broadly defined federal crime. There are several different categories, including obstruction of congressional, administrative, and judicial proceedings, as well as tampering with or retaliating against witnesses.
And that's just obstruction of justice.
There are plenty of other potential federal crimes that might be creatively applied to the president's alleged conduct. That's the beauty of the US Code for US attorneys: there are so many overlapping federal crimes, with such nebulous definitions, that a creative prosecutor can look at almost any conduct and shoehorn it into a few criminal statutes.
There's misprision of a felony, for example.
That's right; it's a crime most people have never heard of, and one that is rarely charged. Yet, depending on the facts that emerge in the coming months about Trump, Flynn and Comey, it's one that could potentially come into play.
Misprision of felony was a crime under English common law, where "it [was] the duty of a man, who kn[ew] that a felony ha[d] been committed, to report it to the proper authority." In 1790, Congress created a federal misprision statute that is substantially similar to its descendant today (18 U.S.C. § 4)—except the modern statute criminalizes concealment, not silence. Mere silence, without some affirmative act, is insufficient evidence of the crime of misprision of felony.
Misprision of a felony occurs when: (1) a third party commits an alleged felony; and (2) the defendant has full knowledge of the crime; (3) he or she fails to notify authorities; and, most importantly, (4) helps conceal the crime. If ordering or inducing the FBI chief to back off Flynn, an allegation news reports say was based on a memo Comey drafted after meeting with Trump, amounts to concealing an underlying crime, then this could be a misprision case.
But what about Trump's special status as head of the executive branch—the branch that enforces the law, and commands the Department of Justice? Most misprision cases involve Joe Citizen, who otherwise has no obligation to report crimes. If Trump has a duty to enforce the law, and fails to report a supposed felony by Flynn, isn't that silence alone "concealment," even if he doesn't order Comey to "let it go"?
The courts have grappled with this issue—but mostly in the context of police officers, not the Commander in Chief. There is historical support in common law misprision doctrine, dating back to 1628, suggesting that public officials have special responsibilities. That doctrine considered that the "concealment of felonies in sheriffs, or bailiffs of liberties is more severely punished than in others."
What about in presidents?
It's not a stretch to say that government officials, police and presidents alike, who are already under an affirmative duty to report crimes, inherently conceal when they do not meet their duty to disclose—by simply doing nothing.
And that's just misprision of a felony, a crime few have even heard of. There are arguably plenty of other statutes that might come into play during investigations of Trump's behavior. Federal criminal statutes are written to cover a lot of conduct, with plenty of catchall provisions and lengthy subsections.
That's one reason the US attorneys have well over a 90% conviction rate in criminal cases. Sure, part of that is because they are good at focusing their resources on a case and investigating the heck out of it until it's airtight. A second reason is that the potential federal sentences are so nasty that defendants have incentives to plead out cases. But the third reason demonstrates why it's not too hard to shoehorn a president's activity into a federal crime: federal criminal law casts a very wide net.
But don't forget: Criminal conduct is not required for impeachment.
Section 4 of Article Two of the United States Constitution provides that the president "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Paradoxically enough, this was not an express limitation to criminal conduct.
The framers likely understood "high" to be read with the preceding crimes (treason and bribery) as wrongs against the public or of a political character. Political wrongs recognized under English common law included misapplication of funds and abuse of power, and even interfering with another branch of government.
History provides examples of impeachable but non-criminal conduct. In 1804, District Court Judge John Pickering was impeached because he, "in a most profane and indecent manner, [invoked] the name of the Supreme Being, to the evil example of the good citizens of the United States." As bad as that sounds, it's not a crime, but still got him impeached.
Many years later, the House Judiciary Committee voted to recommend President Nixon's impeachment on grounds including abuse of power. Abuse of power itself is not a crime, but it's impeachable. He resigned before it could happen.
Ultimately, non-criminal conduct must be impeachable because the Constitution would never have left us without a way to remove a president who is totally derelict in his duty. If the President simply refused to do any work and decided to golf all day or hide in the Lincoln Bedroom, that would not be a crime, but it would certainly rise above mere non-impeachable "maladministration."
Might a president commit federal crimes other than just obstruction of justice? Could be—but if so, it's only because it's pretty easy to commit a federal crime. But ultimately, a federal crime is not required to impeach a president.