The Unmaking of the President 2016

by Lanny J. Davis

  The director of national intelligence, Daniel Coats, and National Security Agency director Mike Rogers were asked by President Trump to issue statements asserting that Trump was not under personal investigation. They denied that they “felt pressured.” But Lacovara concluded that statement “provides no comfort for the president’s position. The obstruction of justice statute prohibits not only successful interference with pending criminal investigations but also any use of ‘threats’ to ‘endeavor’ to obstruct an investigation. It is the attempt or objective that is criminal—even if it fails—and Coats and Rogers were apparently unable to deny that the president had solicited their interference in the pending FBI investigation. If Coats and Rogers did not yield to the endeavor, kudos for them, but that is no excuse for the president.”

  Comey also articulated the element of what he perceived as “threats” during his dinner with the president, limited to the two of them. Leaving little doubt about the price of continued retention, the president twice, according to Comey, told him that he expected “loyalty” from Comey, just as he did from everyone else around him.

  On February 14, 2016—the day after Michael Flynn was forced to resign as the president’s national security adviser when it was learned that he had lied to Vice President Pence and to others about his prior Russian contacts—the president “carefully structured another one-on-one meeting with Comey, specifically ordering Attorney General Jeff Sessions, to whom the FBI director ordinarily reports, to leave the Oval Office where Comey, Sessions, and other national security officials (and Jared Kushner) had been meeting.” At that point, the president laid his cards on the table, according to Comey: “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”‡

  Lacovara suggests that further evidence of pressure on Comey to protect the president rather than to do his duty as FBI director were in Trump’s phone calls on March 30 and April 11, “asking Comey’s help in removing the ‘cloud’ over Trump resulting from the FBI investigation into Russian interference in the 2016 election and possible Trump campaign collusion. The president again demanded loyalty: ‘Because I have been very loyal to you, very loyal; we had that thing you know.’ He pressed Comey to make public statements exonerating the president, but Comey declined to do so.”

  The president’s firing of Comey on May 9 constituted further evidence, according to Lacovara, of obstruction of justice—as did his complicity in Vice President Mike Pence’s public false statements (and those of White House spokespersons) that Comey was fired because of the recommendation of the deputy attorney general, Rod Rosenstein. Trump knew these statements were false when they were made, yet he said nothing to correct them publicly. But two days later, when it was reported that the deputy attorney general would not remain quiet in the face of this blatantly false explanation, Trump was forced to tell the truth, calling in NBC News’s Lester Holt. As Lacovara wrote, Trump “brazenly stated that he fired Comey in order to bring the ‘Russia thing’ to a close, and he [a few days later] bragged to senior Russian officials in a private Oval Office meeting that this is what he thought that he had accomplished by sacking Comey.”

  Lacovara summarized the case for obstruction:

  Comey’s statement lays out a case against the president that consists of a tidy pattern, beginning with the demand for loyalty, the threat to terminate Comey’s job, the repeated requests to turn off the investigation into Flynn and the final infliction of career punishment for failing to succumb to the president’s requests, all followed by the president’s own concession about his motive. Any experienced prosecutor would see these facts as establishing a prima facie case of obstruction of justice.

  It is also not true that “motive” is irrelevant in an obstruction case involving the president when the issue is impeachment as opposed to criminal prosecution. As Richard W. Painter and Norman L. Eisen, top White House ethics officers under Presidents George W. Bush and Barack Obama, respectively, wrote on May 17, 2017:

  What [the president] cannot do is exercise that power [to fire the FBI director] corruptly, to spare himself or those associated with him, like Mr. Flynn, from scrutiny and possible criminal liability. To do so would run afoul of a series of federal statutes that define the crime of obstruction of justice. They are variations on the theme that anyone who “corruptly” or by “any threatening letter or communication” tries “to influence, obstruct, or impede, the due administration of justice” will be subject to criminal penalties.11

  To sum up: Regardless of whether the president can or cannot be indicted, the impeachable offense is the abuse of presidential power “corruptly” to interfere with, impede, and possibly thwart the operation of the U.S. criminal justice system. That abuse subverts the rule of law, due process, and equal protection and application of the laws under the Constitution. Thus, if these allegations are proved true, then there are reasonable grounds for impeachment and removal of President Trump from office.

  Another element for investigation is the possibility that Trump obstructed justice and abused his presidential powers by attempting to intimidate a witness—Director Comey, and what was discussed during their private conversations. On May 12, three days after Trump fired Comey, the president posted a message on Twitter, which some (including Comey) regarded as a threat: “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!”12

  This statement could be reasonably regarded as an attempt to intimidate Comey—and, at the very least, requires further investigation. On June 22, Trump finally stated that he did not make any tapes and had no tapes (which is not the same as saying that no tapes exist).13 For no apparent reason, for more than four weeks Trump refused to confirm or deny whether he had such tapes, adding to the suspicion that he was attempting to intimidate or influence Comey in future testimony. If he was bluffing with his tweet, that raises the question whether he was intentionally misleading the public.

  In addition, Trump’s calls to the two top intelligence agency officials from the CIA and the NSA to seek their help regarding the ongoing FBI criminal investigation inevitably evoke powerful memories of and analogies to the Nixon cover-up and forced resignation.

  According to media reports, on March 22 President Trump discussed the Flynn investigation during a White House meeting with National Intelligence director Daniel Coats and CIA director Mike Pompeo. The president reportedly complained about the investigation and sought Director Coats and Director Pompeo’s assistance in curtailing the FBI investigation.

  Two days after that meeting, President Trump called Director Coats to request he release a statement denying any evidence of coordination between his presidential campaign and the Russian government. The president also repeatedly called the director of the National Security Agency, Mike Rogers, with the same request. When both men were asked to describe those calls when they testified in public before the Senate Intelligence Committee, they refused. (They reportedly answered questions in a private, executive session.)

  Recall that it was the White House audiotape of Nixon telling his chief of staff, H. R. Haldeman, to pressure the CIA to be part of the Watergate cover-up that became the “smoking gun” that caused Nixon to resign. On August 7, 1974, a Republican congressional delegation told Nixon that he did not have the votes to avoid conviction and removal. The result was Nixon’s resignation two days later.

  One of the provisions of the articles of impeachment against Nixon referred to his “endeavoring to misuse the Central Intelligence Agency.” Those words appear to be chillingly applicable to President Trump’s calls to the CIA’s Coats and the NSA’s Rogers. Those calls would certainly merit further investigation if a preliminary impeachment investigation on obstruction of justice were to occur.

  Abuse of Public Trust: Serial, Willful Material Lies

  Alexander Hamilton, in Federalist Paper No. 65, wrote that impeachment offenses “are those offenses which
proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”

  A comprehensive legal memorandum written by President Bill Clinton’s personal attorneys and the leaders of the Office of the White House Counsel during his impeachment process list all the possible standards constituting impeachable offenses accumulated over the years by scholars, interpreting the words, intent, and spirit of the Founders when they drafted, debated, and made the final judgment on the words to use in the impeachment clause in the Constitution.14 The list can be fairly summarized in the Hamiltonian concept: To be guilty of an impeachable offense, the president of the United States must engage in an abuse of the powers of his office that, in the judgment of the House and Senate, constitutes an attack on the system of government and on our constitutional checks and balances, or as Professor Charles Black of Yale Law School put it succinctly, constitutes “serious assaults on the integrity of the processes of government.”

  In other words, the president (and vice president) of the United States are the two officials under our Constitution elected by the voters of the nation—and thus, they not only represent the entire nation but owe a duty to all voters, “to the society itself.”

  There is precedent in Nixon’s case that a pattern of lies to cover up his abuses of power and justice is sufficient for impeachment of a president. Regarding such abuses, Lawrence Hogan, a conservative congressman from Maryland and the only Republican who voted for all three articles of impeachment in the Nixon case, in part explained his vote this way: “The evidence convinces me that my President has lied repeatedly, deceiving public officials and the American people.”

  For a lie to be impeachable, therefore, it must be serious enough to be termed “material”—having a substantial, adverse impact on the nation and the American people, as Hamilton stated, “injuries done immediately to the society itself.” Therefore, if Trump were found to have systematically told the American people material lies, amplified by the power and prestige of his office and with immediate access to the media, this would constitute a classic abuse of power and, thus, an impeachable offense.

  * * *

  The Washington Post has calculated that since January 21, 2017, Trump’s first day as president, he has told one thousand lies. Whether or not any or all of these documented falsehoods are “material” and thus possibly impeachable and justifying removal remains to be seen.15

  Among the material lies that could be the basis for an impeachment investigation is the outright lie, which Trump could not justify but never repudiated, when he accused Barack Obama of wiretapping him and his colleagues at Trump Tower. That was an attack on a former president for committing a felony as president. This certainly meets the standard of “materiality”—a vicious statement that Trump knew was untrue when he said it, and thus was unable to offer any evidence for whatsoever. This is the type of lie that undermines the office of the president. It was as much of a bald-faced lie as Trump’s multiyear lie before he became president that President Obama was not a U.S. citizen, which he refused to retract and repudiate even after Obama made public his birth certificate.

  Another example of a Trump lie that could be found to be material and the basis of impeachment is his claim that the almost three million voters who constituted Hillary Clinton’s margin over his number of popular votes in the presidential election were illegal, undocumented immigrants. This is a particularly insidious abuse of power because as president he is telling the nation that our electoral system is so porous and subject to fraud that our democratic processes cannot be trusted. That is literally an attack on our society, our system of government, our election officers, and the integrity of our democracy.

  Perhaps the worst and most damaging lie of all is Donald Trump’s denial that Vladimir Putin intervened in our presidential election and hacked, meddled, and corrupted our democratic processes to undermine our system of government—and specifically to help him and harm Hillary Clinton. That is a direct threat to our nation and to our system of government. Donald Trump’s attack on our Intelligence Community by mocking and denying their findings and downplaying the significance of the Putin-directed meddling is, literally, a failure to defend our nation from a foreign hostile attack on our most important election.

  Since his inauguration, Trump has repeatedly denied or falsely suggested that it is unknown or unclear or unproved that the Russians intervened or “meddled” in the 2016 election.16 These denials continued even after the January 6 briefing by the directors of the FBI, CIA, National Security Agency, and national intelligence—the leaders of the Intelligence Community. The president-elect was given a copy of the classified report, which revealed direct raw intelligence (such as documents, observations, intercepts, etc.) proving this pro-Trump/anti-Clinton interference directed by Russian president Vladimir Putin.17

  Trump’s subsequent and repeated public denial of these facts could be found by congressional impeachment investigators to be knowing, intentional, and willful misstatement—the definition of a lie. Thus, if determined to be material and serious by a House committee, this lie alone would be an impeachable violation of the public trust and fiduciary duties every president owes to the American people.

  Evidence of “materiality” might be deemed to exist in Trump’s repetition of the lie just before and during the G20 summit on July 7–8, 2017, in Hamburg, Germany. He stated the lie in front of the world’s media as well as the leaders of Western Europe and Russia. Two days before, on July 5, in Warsaw, Trump stated that “nobody really knows” whether any Russian hacking occurred. He lied again when he said it was “possible” (and later added “probable”) that the hacking was done by other countries.18 This was subsequently denied as lacking any evidence at all by the director of national intelligence, James Clapper.19

  In addition, in July 2017, President Trump appeared to have put himself in the middle of a potential charge of lying to the media and the public about, and possible knowing cover-up of, his campaign’s collusion with the Russian government to meddle in our presidential campaign. On June 9, 2016, Trump’s son, Donald Jr., met with someone identified in an email to him as a Russian “government lawyer.” The email stated that this lawyer intended to disclose “incriminating” information about Hillary Clinton possessed by the Russian government, and that the government favored Trump over Clinton. Donald Jr.’s reaction expressed in a responding email—rather than, as required, by notifying the FBI immediately that a foreign, hostile government had approached the Trump campaign to interfere in America’s most important election—was: “I love it.”20

  The first question for an investigative impeachment process would be: Did Trump’s son tell his father about this meeting and share the contents of the emails? After the story broke in the New York Times on July 10, 2017, President Trump denied knowing about the meeting. Many doubted that could possibly be true. A meeting based on what the email described as anti-Clinton incriminating information, supplied by the Russian government, seems to be the kind of information that any son active in the campaign would immediately bring to Dad.

  In any event, this is precisely the kind of key factual dispute—perhaps the difference between Trump being impeached and removed from office or not—that only a congressional impeachment process would be able to try to resolve. If, for example, it could be established that Trump knew about this meeting and had read the emails, then all of his denials of the Russian meddling would be, without any doubt, lies. And, of course, a congressional committee could find an impeachable offense in colluding with Russia to corrupt our election to help himself get elected.

  Perhaps almost as serious was Trump’s possible involvement in creating the first false and misleading statement issued by Donald Jr. in response to the New York Times story about the June 9, 2016, meeting. According to the Times,
“as Air Force One jetted back from Europe on Saturday [July 8, 2017], a small cadre of Mr. Trump’s advisers huddled in a cabin helping to craft a statement for the president’s eldest son, Donald Trump Jr. . . . explaining why he met last summer with a lawyer connected to the Russian government. Participants on the plane and back in the United States debated how transparent to be in the statement, according to people familiar with the discussions.”

  Debated “how transparent”? That is another way of saying, “Should we tell the truth?” Their decision was to mislead. Instead of stating that the meeting was intended to include a discussion of negative information about Hillary Clinton allegedly possessed by the Russian government, the statement said the meeting discussed only the issue of adoptions of children that had been halted due to U.S. sanctions against Russia. That was a lie—and the individuals who drafted the statement and Trump Jr. knew it was a lie. But then the Times reported that “the president signed off” on the statement, which was “so incomplete that it required day after day follow-up statements, each more revealing than the last.”21

  At that time, of course, Trump knew his campaign was under criminal investigation for possible collusion with the Russian government. If a thorough investigation resulted in a determination that Trump had participated in issuing misleading statements and lying to the public about that meeting, with the unavoidable inference of a criminal cover-up, that would certainly present a case for impeachment and removal from office.

  It should be remembered that this impeachment standard is—as it should be—high. It’s not just about a president lying. One could say that Franklin Delano Roosevelt lied or misled the American people about the Lend-Lease program, which allowed him to secretly aid the British by supplying arms to help in the war against Adolf Hitler and Nazi Germany without congressional authorization. Or John F. Kennedy, at least for a period of days, lied or misled the American people about what was going on behind the scenes in the Cuban missile crisis—as in, “President Kennedy has a cold and has to cancel all his appearances,” told by the president’s press secretary, Pierre Salinger, as a cover story for Kennedy meeting with his Exec Comm group of national security leaders to discuss how to deal with the crisis.