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How to cripple a presidency in 10 days
Comey believes Trump tried to influence him
How to cripple a presidency in 10 days
Controversies continue as Trump travels abroad 01:55
Story highlights
- 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.
Then, boom.
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.
Pence defends firing Comey (Entire remarks) 07:48
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.
McMaster: Washington Post story is false 00:43
"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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Opinion: Lots of ways to get to impeachment
Presidential impeachment 101: What to know 01:32
Story highlights
- 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
Danny Cevallos is a CNN legal analyst and an attorney practicing in the areas of personal injury, wrongful conviction and criminal defense in New York, Pennsylvania and the US Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are his.
(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.
Source: White House researching impeachment 01:23
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.
Mis...what?
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.
Trevor Noah: Don't say the I-word 01:28
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.
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