Trump in Comey’s China Shop

Source: Screenshot by Nathaniel St. Clair

Harvard Law professor Larry Tribe, the leading Constitutional scholar and practitioner of his era, has told Congress to “grow a pair” and impeach Trump. Tribe had already initiated litigation against Trump under the Foreign Emoluments Clause for his conflicts of interest involving foreign countries and their potential for filling what Tribe calls Trump’s “bottomless money pit.” Tribe now invokes as the occasion for Congress to take immediate action the new evidence that Trump himself revealed about the apparent attempted bribery and obstruction of justice involved in his brief, and now terminated, relationship with former FBI Director James Comey.

Tribe is not the first law professor to find Trump impeachable. But Tribe makes clear that this latest problem goes beyond mere conflicts of interest, which is what the Emoluments Clause prohibits. It goes all the way to actual bribery, done much in the manner of a mobster. Trump’s own words suggest that he may have dangled the FBI directorship before Comey in exchange for Comey’s assurance that Trump was (and would remain?) excluded from the Russian investigation plus Comey’s swearing of general fealty to Trump rather than, as his oath requires, to the Constitution’s rule of law. Comey’s continued employment as FBI director was an implicit quid pro quo. The deal implied by Trump’s own words, amplified by leaks from Comey, was: “You obey my will and I will keep you employed as my pet FBI Director.”

Trump admits discussing such an implied offer with Comey three times. He put a gratuitous sentence in his May 9 firing letter to Comey memorializing the conversations, possibly lying in his assertion that Comey had agreed to the deal by informing Trump he is not under investigation. Trump’s later tweeted threat to Comey that the conversations may have been recorded, on the other hand, suggests that Comey did not exactly decline the bribe, even if Trump did change his mind and fire him anyway. This threat itself might also constitute obstruction of justice.

Racketeering under the federal RICO law is committed by two or more instances of “any act or threat involving … bribery,” among other named crimes. That law specifically covers bribery of a public official “to do or omit to do any act in violation of the lawful duty of such official.” This single incident could therefore expose the whole Trump enterprise to investigation and discovery of other similar racketeering. Other “predicate acts” by Trump involving racketeering crimes such as bribery or extortion could include the kinds of activities involved in Tribe’s Emoluments Clause litigation. Comey himself might plausibly join a Civil RICO suit as a “person injured in his business” by the Trump enterprise. It would not be Trump’s first brush with racketeering charges .

Trump’s conversations with Comey that amounted to a bribe, Tribe argues, also constitute an impeachable “high crime or misdemeanor” of greater significance than the speculation about Russian collusion with Trump’s 2016 campaign. Indeed it is important to separate the significance of Trump’s attempted influence on Comey from both the dubious merits of the “Russian Hacking Fiasco” — for which no credible evidence has yet been made public — and also from the considerable merits of firing James Comey.

Trump could be absolutely right about the “Russia thing” being a “total hoax” and a Democratic Party “excuse for having lost the election.” But that would not affect his attempted bribe of Comey, seeking Comey’s loyalty plus his exemption of Trump from the investigation of the empty election hacking charges. Such an investigation might have drilled a dry hole concernng election hacking but in the process nevertheless stumble over evidence of other crimes down Trump’s Emoluments money-trail.

What is most interesting about the attempted Comey bribe is the way that Trump revealed evidence of the bribe completely gratuitously in a press interview without there being any plausible benefit to himself in doing so. Trump volunteered that he was going to fire Comey irrespective of the perfectly good cause that Deputy Attorney General Rod J. Rosenstein provided in his Memorandum to the Attorney General dated May 9, 2017. That Memorandum had been forwarded to Trump with some superfluous boilerplate added by Attorney General Sessions, which in retrospect seemed inconsistent with Sessions’ promised recusal from such matters involving the Russian investigation. The first and operative paragraph of Trump’s firing letter formally “accepted” the Memorandum.

The second paragraph of Trump’s letter irrelevantly and even bizarrely included Trump’s equivalent of an exculpatory tweet which made a connection between the firing and Trump’s exemption from the Russian investigation. This second paragraph could be interpreted as conveying to Comey a “never mind” about previous quid pro quo agreements. Trump changed his mind.

In his press interview Trump contexted his statement about firing Comey on grounds separate from those charged in the Memorandum by making further reference to the Russian investigation: “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…” Trump’s actual motive for firing Comey was thus, according to his own words, not those stated in the original Memorandum, as had been suggested it was by the text of Trump’s firing letter, not to mention by various Trump spokespersons.

There is no rational excuse for Trump to have undermined the mostly proper manner in which the complaint against Comey reached his desk by suggesting that he was going to fire Comey for entirely other reasons in any event. This merely raises questions about what those other reasons might be that were not mentioned in Rosenstein’s Memorandum.

The reason stated in the Memorandum was Comey’s blatantly unprofessional “handling of the conclusion of the investigation of Secretary Clinton’s emails.” It must be emphasized that, as I have detailed elsewhere, Rosenstein’s analysis of the errors Comey made presented more than adequate cause to fire Comey, even if it did not include all of the available reasons Comey was unsuited to the job. Indeed Rosenstein’s reasons were so powerful that it would have been improper not to fire Comey for playing politics with usurped prosecutorial powers as demonstrated there. To say that Trump obstructed justice in his communications with Comey is not to say that Trump was objectively wrong in firing Comey on Rosenstein’s advice. Trump was merely stupid in talking about his own subjective reasons for firing Comey as distinct from the formal institutional and historical reasons why Comey was justifiably fired.

Rosenstein is Comey’s boss. He had every right to push Comey out of the FBI soon after Rosenstein was sworn in as Deputy on April 26. Since he generated his well-crafted Memorandum only two weeks later, Rosenstein may well have contemplated firing Comey when he accepted the job of Deputy, knowing that supervising the FBI and its controversial Director would be one of his principal tasks.

Had Trump only kept his mouth shut about his subjective views, let Rosenstein do his job, and stuck with the program reflected in the firing documentation, any connection between Comey’s firing and the Russian investigation would have remained mere partisan speculation. Trump’s puerile impetuousness in talking about his subjective reasons gained him absolutely nothing while it created what Tribe would see as appropriate material for Articles of Impeachment, a demand that will doubtless grow. Tribe notes: “Obstruction of justice was the first count in the articles of impeachment against Nixon and, years later, a count against Bill Clinton.”

Another tactical disadvantage resulting from Trump’s fatuous flapping of his gums is that it might well also require appointment of an independent prosecutor to investigate the attempted bribe of Comey for purposes of obstructing justice. Tribe explains that, since Sessions and Rosenstein were witnesses to the meeting where Trump formulated his plan to fire Comey, they both need to step out of the chain of command by appointing a special prosecutor for investigating and potentially prosecuting the attempted bribery matter. Since they can both be called as principal witnesses in that matter it is elementary legal ethics that they cannot continue to serve in the chain of command of prosecutors conducting the case.

Sessions was already supposedly recused from dealing with all Trump campaign matters, including the Russian investigation which was implicated in the Comey firing by Trump’s later musings, though not by the Memorandum. The Memorandum on its face when it reached Session’s desk had nothing to do with the Russian investigation and arguably had nothing to do with the Trump campaign. After Trump linked Comey’s firing to the Russian probe, the necessary recusal of Sessions and Rosenstein from the Comey bribe matter leaves no plausible alternative but the appointment of a special prosecutor to pursue the obstruction of justice charge against Trump. Rosenstein has leaked his view that no special prosecutor is needed for the Russian investigation on its own. But now a different calculation applies to the related Comey bribe matter.

Comey will get to be a “showboat …grands tander” at least one more time when he reveals whether he will implicate Trump as not just” crazy,” but also as a racketeer. The revelation that Trump specifically attempted to obstruct justice with respect to Flynn disclosed that Comey has, like the experienced political player that he is, kept contemporaneous notes of these discussions which would therefore be admissible in court. Congress is already asking for these notes. It is highly unlikely they will support Trump’s account when they do become public.

Trump’s naïvete in publicly disclosing his subjective motivation is spinning out of control. It gave Comey power over Trump in his ability to characterize the nature of the three conversations as attempted bribery to obstruct justice. For purposes of impeachment and even prosecution, Trump’s own words only need confirmation and contextualization by Comey to constitute testimony that Comey understood Trump’s blandishments as an attempted bribe to divert him from carrying out his official duties.

Unnecessary statements to NBC and Trump’s later rationalizations have resulted in giving Comey the keys to the China shop with the capacity to take the bull, El Torumpo, down. Trump’s alleged interceding for Flynn simply adds the impression that Trump’s relationship with Comey consisted of little other than a pattern of obstruction.

The more troubling issue involved here is not even Trumps’ record of nearly daily impeachable offenses. That might be expected from any would-be authoritarian leader testing the constitutional checks and balances on his power. The larger issue is about Trump’s demonstrated lack of ordinary ability to handle the job. He could not carry out the simple executive act of firing a highly flawed public official for manifestly good cause that was carefully presented by a competent professional aid without, in the process, making needless disclosure of evidence of his own criminal motive for the firing. That the disclosure did him absolutely no good whatsoever suggests a troubling level of incompetence, or worse. If he will do that, Trump can be expected to bring the same incompetence to his conduct of other similarly serious public matters. It took little time for him to carelessly disclose official secrets in international negotiations for no good reason, but to the detriment of important foreign intelligence operations.

Like many, Prof. Tribe sees the problem as Trump’s authoritarian tendency to violate the law. The reality may be even more troubling than that.

Whether lawless jefe or demented bull in a China shop, either way, leaving Trump unsupervised is clearly dangerous to the nation. Tribe hopes that Trump’s impeachment for the former reason will be the governing issue of the 2018 election. But any plausibly foreseeable outcome in the Senate races would still likely leave as a bridge too far the 2/3 supermajority required for Senate conviction upon impeachment by the House. Trump’s own appointees in the executive branch, who are largely drawn from an extreme plutocratic outpost on the political spectrum, are themselves not up to the task of performing adult supervision as long as Trump’s favors keep flowing to the 1%. Tribe might therefore consider a remedy contained in the Constitution, Article 25(4) as a more achievable and suitable goal. This provision empowers Congress to create, by simple legislation, “a body” responsible for determining whether a “President is unable to discharge the powers and duties of his office.”

Trump’s totally pointless on-camera testimony suggesting his attempted bribery of Comey, on top of the daily Trump phenomenon that the nation has experienced as unhinged from reality and self-discipline, is a tipping point raising questions about Trump’s aging mental powers. This question should be formally scrutinized by a competent “body” which the Constitution contemplates for such situations. An institutional solution is needed now. This boomer may be bonkers.

Rob Hager is a public interest litigator who filed an amicus brief in the Montana sequel to Citizens United and has worked as an international consultant on anti-corruption policy and legislation.