A Facebook friend who is passionate about Hillary, Trump-hatred, and demanding that Everyone Pay Attention, linked to this interview with a Harvard Law School lecturer:
it could justify a further investigation into obstruction of justice on the part of the president. The matter certainly warrants an investigation.
It was at a meeting in which he asked everyone else to leave, which is an enormously suspicious thing.
The difference between this and President Nixon in Watergate is that in Watergate there was a tape. [Trump = Nixon without a tape recorder]
The action of [Comey] releasing this information was incredibly self-protective. [Why would he need to protect himself? He is at home collecting taxpayer-funded pension checks? Or he is working as a lobbyist or for a government contractor getting paid $1+ million? Or maybe he will write a book for $10 million?]
The article was published by Harvard itself. The Facebooker described it as the “clearest explanation.”
Here’s a piece by a Harvard Law School professor (not published by Harvard, certainly!):
President Trump also had the constitutional authority to order Comey to end the investigation of former national security adviser Mike Flynn. He could have pardoned Flynn, as Bush pardoned Weinberger, thus ending the Flynn investigation, as Bush ended the Iran-Contra investigation. What Trump could not do is what Nixon did: direct his aides to lie to the FBI, or commit other independent crimes. There is no evidence that Trump did that. [Why didn’t Trump do this, actually? Just pardon both Hillary Clinton and this Flynn guy and move on?]
Throughout United States history — from Presidents Adams to Jefferson to Lincoln to Roosevelt to Kennedy to Obama — presidents have directed (not merely requested) the Justice Department to investigate, prosecute (or not prosecute) specific individuals or categories of individuals.
It is only recently that the tradition of an independent Justice Department and FBI has emerged. But traditions, even salutary ones, cannot form the basis of a criminal charge. It would be far better if our constitution provided for prosecutors who were not part of the executive branch, which is under the direction of the president.
The president can, as a matter of constitutional law, direct the attorney general, and his subordinate, the director of the FBI, tell them what to do, whom to prosecute and whom not to prosecute. Indeed, the president has the constitutional authority to stop the investigation of any person by simply pardoning that person.
In a world where people think that the legal system should be deterministic, at least to some extent (and you’d hope, on the definition of what conduct is criminal), how can we explain the discrepancy between these points of view?
It seems that the first opinions are those of a legal expert who was appointed by a Clinton family member (Bill) to a federal judgeship. The second opinions are those of a legal expert who was not similarly favored by Bill or Hillary.
[The other fun recent Facebook item was from a student at a liberal arts college. Citing a video of Senator Claire McCaskill talking about our government-directed health insurance schemes, she said “It is always women who fight against injustice and power.” There was a huge quantity of feedback on this observation, all of it positive, mostly from folks most of their way through $500,000 of U.S. K-12 and liberal arts education. I wonder how it would work for a student who cited Jesus, Gandhi, Dietrich Bonhoeffer, Mandela, and MLK and concluded “It is always men who fight against injustice and power.”]
“What Trump could not do is what Nixon did: direct his aides to lie to the FBI, or commit other independent crimes. There is no evidence that Trump did that.”
I think a more accurate description of our current state of knowledge would be that there is no *unclassified* evidence that Trump did that. One of the key aspects of this situation that was not present in the Watergate situation is that much of the potential evidence that could have been collected would be classified because it was collected as part of national security surveillance operations. That makes it much harder for an ordinary citizen to know what the evidence actually is. Sooner or later, if there is such classified evidence that is material, it will have to be declassified before it can be used in a public proceeding.
“[Why didn’t Trump do this, actually? Just pardon both Hillary Clinton and this Flynn guy and move on?]”
Good question. My personal suspicion would be that (a) Trump would rather stick a knife in his eye than pardon Hillary, and (b) his lawyer, who presumably knows what evidence (classified) actually exists, is telling him that pardoning Flynn would only make the case against him worse when the evidence actually comes out. But as above, we can’t see the actual classified evidence, if there is any, so practically anything anyone says publicly at this point is speculation. Even people who would reasonably be expected to have knowledge of the classified evidence (such as Comey) and are testifying under oath cannot reveal that information in a public hearing (and they have said so in response to questions during their testimony).
Peter: Your comments reminds me of a friend’s linkage to a New Yorker article: “President Trump Appears to be Guilty of Obstruction of Justice.” MIndful of the hundreds of anti-Trump articles with which the magazine has bombarded subscribers recently, I responded with “New Yorker magazine could save a lot of paper and ink if they published a list of crimes that they consider Donald Trump to be innocent of.”
Yes, just as with the invisible tiger in the living room – that you can’t see him being all the more proof the tiger is invisible – we have the issue of the FBI Director not having any access to classified information, apparently.
Watergate convinced a whole generation that you can get rid of a President by repeating silly sayings like “what did he know and when did he know it?”
It seems obvious that a President can have a private meeting with an underling.
patrickg: “we have the issue of the FBI Director not having any access to classified information, apparently.”
No, we have the former FBI Director understanding, just like Sally Yates and James Clapper understood, that they cannot reveal classified information in an open hearing. IIRC all three of them said they could give more information in a closed hearing in which classified information could be revealed.
Your analogy with the invisible tiger is flawed because, unlike with invisible tigers, we know that classified information exists, that people like the FBI Director have access to it, that investigations like the one now being conducted make use of it, and that it cannot be revealed in a public hearing unless and until it is declassified.
If you are saying that you are convinced that none of that classified information contains anything that inculpates Trump or any of his advisors, then you could be right, but we won’t know until we have a definitive answer one way or the other from the investigation that is now going on. Until then we are both just speculating, as I said.
philg: “Your comments reminds me of a friend’s linkage to a New Yorker article: “President Trump Appears to be Guilty of Obstruction of Justice.””
I’m going to take a wild guess and say that the New Yorker article, unlike me, did *not* admit that it was only speculating. 🙂
Of course practically everything that the media is saying about this, beyond a few bare facts, is predictable entirely from the political bias of the particular publication. That’s nothing new. (I like your response to the New Yorker, btw.) But the media is not actually conducting the investigation. The FBI and the Congressional committees, and now the special prosecutor, are. At some point they will either publicly say they have found nothing, or they will publicly make particular charges that will have to be based on particular information that they can publicly reveal. Then we’ll see,
Given the current climate and massive amounts of leaks, I believe any real evidence would have already been leaked.
Roger: “Watergate convinced a whole generation that you can get rid of a President by repeating silly sayings like “what did he know and when did he know it?””
As I understand it, Nixon was forced to resign (by the virtual certainty that he would be impeached and convicted if he did not) because, as the second lawyer philg quoted said, he directed his aides to lie to the FBI, or commit other independent crimes. Do you think that forcing him to resign on that basis was justified?
RG: “Given the current climate and massive amounts of leaks, I believe any real evidence would have already been leaked.”
I don’t think there have been a “massive amount of leaks”. Leaking has been standard operating procedure in Washington for a long time, and the pace of current leaks does not strike me as exceptional. We’re just hearing a lot more talk about them because the media believes that focusing on this one topic will get them more viewers.
The left were after Nixon for close to two decades, first because of his conduct during the McCarthy era (he, inter alia., had issues with Soviet agents serving in the State Department) and then for his temerity in trying to stand up to their beloved Jack in 1960, he all sweaty with five o’clock shadow and Jack straight out of central casting. Nixon carried 49 states in the 1972 election against the failed hotelier George McGovern — a darling of the left, who promised a lot of free stuff for everyone. Nixon was one of our more competent presidents but was undone by his own character flaws, which the left took advantage of. The left was gleeful when they brought him down and hope to circumvent the democratic process and do the same to Trump, a man also with some real character flaws.
Jack: I think you give a fair assessment of the left’s motives in the case of both Nixon and Trump, but with regard to Nixon, do you think it was justified to force him to resign, given the things he in fact did?
Peter: I have never heard anyone give a coherent explanation of why Nixon was driven from office. The bill of impeachment has a long list of accusations, and they mostly seem political to me. The professor says “direct his aides to lie to the FBI, or commit other independent crimes.” Just what were the lies, and who proved them to be lies?
Roger: The key items, as I understand it, were: that the Watergate break-in was ordered by Nixon’s top aides as part of an operation to gain information about the Democrats’ plans during the 1972 election campaign; that several of those aides lied under oath about their involvement; that money was paid to the 5 actual burglars to keep them from revealing who had ordered the break-in; and that, as eventually became clear when the tapes were revealed, that Nixon himself was involved from the beginning, and ordered the lying under oath and the payment of “hush money”.
Peter: That is better than most ppl can say. When you say “involved from the beginning”, I assume you mean involved in the coverup, as no tape shows that Nixon knew about the break-in in advance. I think the “lying under oath” was actually lying to the FBI. But I could be wrong.
I always thought that the lie was that the CIA was involved, but I have read since then that the CIA was involved. So I don’t know what the lie was.
Somehow ppl think that Nixon obstructed justice, and Trump is doing the same thing. They think it is illegal for the President to talk to the FBI director, or to ask him what he is doing, or to say someone is good guy, or to have concern that he is going to screw it up as he did the Clinton email investigation.
Roger: “When you say “involved from the beginning”, I assume you mean involved in the coverup, as no tape shows that Nixon knew about the break-in in advance.”
Yes, that’s correct.
“I think the “lying under oath” was actually lying to the FBI.”
At first, yes. That still constitutes lying under oath if the person was sworn before being questioned by the FBI. If it’s not a sworn interview, but just ordinary questioning, and you lie to the FBI (or indeed to any Federal agent), it’s still breaking the law, but a different law.
4
IIRC some of the aides also lied in sworn testimony before Congress.
“Somehow ppl think that Nixon obstructed justice”
Lying under oath, and paying people to not reveal material information, is obstruction of justice. So is ordering other people to do so. So on that basis Nixon was indeed guilty of obstruction of justice. (In one of the tapes John Dean makes this explicit point to Nixon, talking about his aides having lied under oath to the FBI and paid hush money to the burglars. At that point Dean did not yet realize that Nixon himself had ordered those things to be done.)
“and Trump is doing the same thing”
We don’t know at this point because we haven’t seen all of the classified evidence. So any conclusive claim either way is speculation at this point, as I’ve said.
“They think it is illegal for the President to talk to the FBI director, or to ask him what he is doing, or to say someone is good guy, or to have concern that he is going to screw it up as he did the Clinton email investigation.”
I agree that none of those things are illegal, and none of them, in and of themselves, constitute obstruction of justice.
But, speaking hypothetically, *if* the President has knowledge that acts were committed that *are* illegal, and he orders people to stop an investigation because he believes that if the investigation continues, it will uncover evidence of those illegal acts, that could constitute obstruction of justice. In Nixon’s case, the tapes revealed that that was indeed what happened: Nixon ordered the FBI and the CIA to stop investigating the Watergate break-in because he knew the investigation would discover that he and his top aides had violated the law.
(I say “could constitute obstruction of justice” instead of “would” because the President could, hypothetically, argue that the acts in question, while technically illegal, were necessary for national security. I don’t think Nixon could have cogently made such an argument. It’s possible that Trump could, but such an argument could only apply to acts committed after he took office, which doesn’t cover a lot of what is being alleged. In any case, for the President to make such an argument, he would have to tell the people he was ordering to stop, such as the FBI Director, that that was the reason. Just saying “he’s a good guy” about someone he, hypothetically, *knows* to have violated the law, isn’t enough.)
I think that Nixon did argue that national security justified some acts, such as bugging Ellsberg’s psychiatrist.
Nixon was backstabbed by his own lawyer and by FBI leaks, and never would have gotten a fair trial. So I don’t know if he was guilty of anything or not.
In Trump’s case, I do not see how anything can be illegal even if every allegation against him is true. Suppose Flynn had some illegal contact with the Russians, and Trump ordered the investigation stopped. Flynn is not in office. The DoJ drops investigations every day. Trump is not dependent on Flynn for anything.
One can have differing opinions about Flynn. Some think he should be investigated, but it is just as plausible that it is an injustice to investigate him. Someone has to make a judgment call. Trump was elected to make judgment calls and to manage his underlings. What could possibly be illegal about any of this?
Roger: “I think that Nixon did argue that national security justified some acts, such as bugging Ellsberg’s psychiatrist.”
Perhaps, but national security clearly did not justify breaking into the DNC’s headquarters at Watergate. That was just for political advantage. So anything done to cover that up would also not be justifiable on national security grounds.
“In Trump’s case, I do not see how anything can be illegal even if every allegation against him is true.”
Hacking into someone else’s computer system to make it do things that the owner does not want it to do is illegal. So is spreading false information with the intention of defaming or injuring someone’s reputation. (The fact that that someone happens to be the Democratic candidate for President doesn’t matter as far as illegality is concerned.) Conspiring with someone else to break the law is illegal. So if Trump or any of his advisors conspired with the Russians to do any of those things, that’s illegal. And if Trump told any of his advisors to lie about it to investigators, that’s obstruction of justice.
Mind you, I’m not saying we know that Trump did these things. As I’ve said, we’re just speculating. But those are among the things being alleged, so if those allegations are true, then there is illegality involved.
“Suppose Flynn had some illegal contact with the Russians”
If he did so on his own, without consulting Trump and without Trump’s knowledge, then no, Trump would not himself be guilty of anything illegal. And yes, it would be up to him to decide whether investigating Flynn was worth it or not. (If this were in fact the case, though, and there is no other illegality involved, I think it’s hard to answer philg’s question, why hasn’t Trump just pardoned Flynn?)
If, OTOH, Flynn did something illegal because Trump told him to, or as part of an overall plan that Trump knew about, then Trump himself might be guilty of conspiring to break the law, which is itself illegal. The fact that Flynn was the one who actually did the dirty work would be no defense.
I’m not actually sure that the dealings with the Russians that Flynn has been accused of are illegal, practically speaking. If he did in fact give assurances to the Russian ambassador not to worry about sanctions, in the conversation they had on December 29th, that would arguably be a violation of the Logan Act; but the Logan Act has never been enforced in more than 200 years, so practically speaking it has no force. But if Flynn lied to FBI investigators about that conversation, which it appears that he did, that’s illegal, whether or not the conversation itself was illegal. (Note that which particular law Flynn would have broken would depend, as I said in my previous post, on whether it was a sworn interview or just informal questioning, but either way it’s illegal to lie to Federal officers who are asking you questions in their official capacity. You can decline to answer, but you can’t lie.) So the question is whether Trump told him to lie, or whether he did it on his own.
“Hacking into someone else’s computer system to make it do things that the owner does not want it to do is illegal. … I’m not saying we know that Trump did these things.”
Finally a plausible explanation for why the Dell XPS 13 2-in-1 that I purchased has never worked properly! (it is now on its second visit to Dell for “depot service”)
[Though, actually, if we read the above literally then it would seem that nearly all of the employees of Microsoft must be imprisoned…]
philg: LOL, if I were on the jury I would vote to convict…
(I have not used a Windows computer for home use since about 2005–unfortunately I don’t have a choice at work.)
Nixon never knew about the break-in in advance, AFAIK, and no one has explained how he was going to get any political advantage.
The 2016 DNC leaks may have been of some benefit to Bernie Sanders, as it had some info about intra-party politics. But I did not see how it had much significance to the Clinton-Trump election. The Clinton campaign was not run out of the DNC, and there was not much reason to think that the leaks would benefit Trump.
I find it hard to imagine these supposedly illegal Trump actions. You think Trump told Flynn to lie, and then fired him for lying? Why? For what purpose? It makes no sense to me.
Or maybe Trump asked Flynn to tell Putin to hack the DNC and give the result to Wikileaks? Again, this makes no sense. Trump has no interest in the DNC. Putin does not need Flynn for such ideas. If Putin did it, he would have covered his tracks better.
The FBI has already been investigating this for a year, and come up with nothing. What are they going to find now?
These are really kooky conspiracy theories. They make pizzagate seem plausible.
Roger: “Nixon never knew about the break-in in advance”
No, but he had given general orders to his top aides to obtain “campaign intelligence” (that’s the phrase Dean used in one of the tapes) about the Democrats. I personally can’t see why they would have bothered, since I don’t think there was ever any real doubt about the outcome of the election; but as someone mentioned, Nixon had some significant character flaws, and he might have wanted to know what the Democrats were up to, by hook or by crook, even if there was no rational reason to bother.
Since Nixon had already given that general order, and since the break-in was part of that general effort he had ordered, when he found out about the break-in he immediately ordered a cover-up for obvious reasons.
“You think Trump told Flynn to lie, and then fired him for lying?”
Again, I’m not saying Trump did that; I was only responding to your hypothetical, *if* all the allegations are true, and that’s one of the allegations.
The general mentality behind this allegation seems to me to be that that’s what Nixon did. He told his top aides to lie, and then he fired them (well, technically he ordered them to resign, but it comes to the same thing) for lying–i.e., when it became clear that they were going to be found out, but he still hoped to conceal his own knowledge and involvement.
“If Putin did it, he would have covered his tracks better.”
If the Russians’ objective was to hack into the DNC without it being found out, yes, of course they would have covered their tracks better.
However, if the Russians’ objective was to tie the US political system in knots for as long as possible, then the gradual revelations we’ve been seeing are what we would expect.
There is an occasional (once a week maybe?) newsworthy development about these investigations. The “media” needs new material every 30 minutes (or seconds!). This mismatch drives most of the speculation. Either check your media infrequently or wait until the headlines show new developments.
These comments have covered about a year of Trump legal discrepancies in a few minutes of reading. I can probably learn enough to vote in 2018 by checking again next summer.
It’s the classic feedback loop problem: a process cannot respond to control inputs more often than the subject process changes.
Trump’s personal antics, however, are fast-paced entertainment like pro wrestling. Too bad that is not his job.
“[Evidence] collected as part of national security surveillance operations…”
So that when Trump said that Obama was listening in on his campaign, it was really true and not a paranoid fantasy?
If Trump was the lame duck President and his spy agencies were monitoring communications between the incoming Liz Warren administration and the Chinese (lets say they were talking about restoring the Paris Accords) how would this be received by Democrats and their media friends? What if the existence of these talks was leaked from inside the government – how would this be received?
However, if the Russians’ objective was to tie the US political system in knots for as long as possible…
then the media and the Democrats (the same thing, actually) are playing right into their objectives.
Jack D: “No that when Trump said that Obama was listening in on his campaign, it was really true and not a paranoid fantasy?”
You do know that we routinely conduct surveillance of Russian government representatives (like their ambassador) in the US, right? And that if some US national is talking to one of those Russians, what they say is going to be recorded? And that, if it turns out that something was said in that conversation that is of national security or intelligence interest, that recording could potentially be evidence, regardless of who the US national is?
Again, I’m not saying we know that there is such evidence involving Trump campaign staffers; I’m just speculating about whether such evidence exists. But *if* there is such evidence, it doesn’t mean Trump was under surveillance himself, or his campaign. It just means he or his campaign staffers happened to be talking to people who were under surveillance.
“then the media and the Democrats (the same thing, actually) are playing right into their objectives.”
Yep.
Peter Donis # 25:
Do you imply that Obama and nobody in his administration talked to Russian ambassador? If not how come their names were not unmasked? How Lindsey Graham got snooped upon, I guess part of snooping on US citizens talking to Israeli PM? How come no information on those who talked and gave hundred of billions to Iran, self-proclaimed sworn enemy of USA? Seems that some support fascist tactics when ‘right’ people use them.
anon: “Do you imply that Obama and nobody in his administration talked to Russian ambassador?”
Talking to the Russian ambassador about US policy when you are part of the administration in office is one thing. Whatever conversations Trump or his aides have had since January 20th, with the Russians or anybody else, is part of US policy. It might be good US policy, or bad US policy, but it’s US policy. I’m not talking about that. (And yes, of course all those conversations are recorded.)
Talking to the Russian ambassador about US policy when you are *not* yet part of the administration in office, and are in fact telling him things that undermine the US policy of the administration that still is in office (for example, not to worry about sanctions that the current US government has just imposed), is something different. And a recording of such a conversation would be evidence, for example in establishing a motive for, say, Michael Flynn to lie to FBI investigators about his conversation with the Russian ambassador on Dec 29, 2016. That is the sort of evidence I was saying might possibly exist.
Peter Donis #27:
How do you know what administration was talking about since it was not leaked? There was an accidentally broadcasted sound-bite when Obama promised to be ‘more flexible’ to a Russian big – wig and that the big-wig promised to pass it on to Putin. Sounded extremely damaging. Dec 29 2015 is post – election (and post unprecedented contention of the election), so Trump people were already quasi-governing, seems OK to talk to any ambassador. Usually departing presidents run anything international relationship related by president elects. And what about Iran? This is a rhetorical question, I do not expect a rational answer form you.
anon: “How do you know what administration was talking about since it was not leaked?”
If you mean the Obama adminstration talking to the Russian ambassador while they were in office, that would be part of US policy, just as the Trump administration talking to him after January 20th. Isn’t that obvious?
As for any specific things the Obama administration might have said to the Russians, I’ve made no claims about that at all. As I said, that’s not the sort of thing I’m talking about; the only reason I brought it up in my last post is that you seem to be conflating the two cases (in office vs. not in office), when they are very different (see below).
“Dec 29 2015 is post – election (and post unprecedented contention of the election), so Trump people were already quasi-governing”
There is no such thing as “quasi-governing”. The transition of power happens on January 20th. Before that time the President-elect and his people are just ordinary private citizens with no governing power whatsoever. They can sit in on things (although IIRC Trump had little or no interest in himself or his people sitting in on what Obama’s administration was doing), but they are not governing, or “quasi-governing”, or anything else.
” Usually departing presidents run anything international relationship related by president elects.”
Do you think Obama ran the proposed sanctions by Trump? If so, what do you think Trump’s feedback was?
“what about Iran?”
What about it? If you have some specific item in mind, a link or two to your sources of information would help.