Director James Comey is sworn in before testifying at a House Oversight and Government Reform Committee on the “Oversight of the State Department” in Washington U.S. July 7, 2016. (REUTERS/Gary Cameron)

James Comey — Man of Revenge or Man Worried about Obstruction of Justice?

How Fox News contributor Gregg Jarrett sweeps the hugely significant discussion of possible obstruction of justice under a thick rug of unsubstantiated character assassination and false dilemma

Everyone pretty much agrees that FBI Director James Comey is a polarizing figure. But does being a polarizing figure automatically make someone a revenge-seeking gunslinger? The answer to that question is yes, according to Gregg Jarrett in yesterday’s Fox News opinion piece? In “Comey’s revenge is a gun without powder”, Jarrett paints Comey as being bent on revenge by revealing a memo written months ago only after being fired by President Trump this month. Jarrett’s piece opens like a dime store Western shoot-em up:

James Comey was lying in wait. 
His gun was cocked, he took aim and fired. 
But his weapon was empty.

Jarrett’s article offers up no facts or fact-based allegations to support his claim of Comey’s revenge. This is a classic way to discredit a statement: allege a highly emotional motive behind someone’s statement, omit any and all facts that tend to uphold the statement, and hope this blend of unsubstantiated attack and failure to disclose tricks your readers into doubting the veracity of the statement and to doubt the integrity of the person who made it.

But what is more disturbing is the complete absence in Jarrett’s article of even the meekest reminder to readers of the stark seriousness of obstruction of justice. Instead, Jarrett spills all of his ink in a feeble attempt at attacking Comey’s character. Feeble because the attacks consist of rhetorical games instead of rational, fact-based argument. Here is one example of how Jarrett tries (and fails, IMHO) to deflect readers away from the facts and towards his salacious claims:

Comey’s memo is being treated as a “smoking gun” only because the media and Democrats, likely prompted by Comey himself, are now peddling it that way.

Here, Jarrett sidesteps the important fact that contemporaneously-written memos of conversations hold great weight in courts of law, and are considered to be much more reliable than statements made later and other types of hearsay. Comey’s memo about his conversation with President Trump was written immediately after the conversation took place. That fact alone imports strong assumptions of credibility and reliability into the memo. Thus the memo can be considered a “smoking gun” not just because people are now claiming that it is. guest post by John Rappoport (unattributed photo)

The Comey memo was a “smoking gun” the minute it was completed and filed. Notice too how Jarrett uses two additional tricks to deflect attention away from the inherent reliability of the memo:

  1. It’s the media and the Democrats who are behind this attack on our president.
  2. These people are “peddling” nonsense.

Jarrett’s blanket indictment of the Democrats and the media ignores two things: (1) some Republicans agree that the Comey memo is a “smoking gun” (e.g., Jason Chaffetz), and (2) some media do not agree that memo is a “smoking gun” (e.g., Fox News). Thus the blanket indictment is diluted and weakened.

Jarrett also uses the verb “to peddle” in the context of a factual inquiry of supreme importance to the health of representative government. This is an attempt to weaken the “smoking gun” claim not by showing how the claim is false, but by using certain words in ways that attack those who make the claim. In this case Jarrett describes “the media and the Democrats” as trying to sell the claim in the same way that a door-to-door salesman or narcotics salesperson appeals to the irrational and preys on our human weaknesses.

Webco Home Security (unattributed photo)

Magical inflammatory rhetoric: Jarrett describes the breaking news about the Comey memo as something that happened “magically” in an “inflammatory” report.

Now, only after Comey was fired, the memo magically surfaces in an inflammatory New York Times report which alleges that Mr. Trump asked Comey to end the Michael Flynn investigation.

Here is one standard definition of “inflammatory”, from the Oxford English dictionary:

(especially of speech or writing) arousing or intended to arouse angry or violent feelings.

Michael Schmidt’s New York Times report entitled “Comey Memo Says Trump Asked Him to End Flynn Investigation”, contains no statements that could be considered inflammatory under this definition. It contains nothing remotely akin to an attempt to anger or stir up violent feelings. The only way Schmidt’s report can be considered inflammatory is in the same way that a murderer feels that a jury’s verdict of 1st degree murder against him is inflammatory: because being caught and accused and punished of course arouses angry or violent feelings in the poor murderer. To push this explanation to its outer limits, under Jarrett’s new definition of “inflammatory”, every single criminal verdict ever issued by any court in the history of humanity would be an inflammatory verdict. And Jarrett would have us believe that Schmidt’s report is not to be trusted simply because the facts alleged in it would tend to make certain Trump defenders feel uncomfortable, angry even.

The closest Jarrett comes to making an interesting argument in his piece is by mentioning the misprision of felony statute, 18 United States Code section 4, which states:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

Jarrett argues that if Trump had obstructed justice, Comey would have had to immediately disclose his memo to someone in civil authority under the United States, and because the memo is only now coming to light that must mean that Comey either violated his duty to disclose under 18 USC sec. 4 or that Comey did not detect a felony.

But by writing a memo, Comey has put himself in a box. If he now accuses the President of obstruction, he places himself in legal jeopardy for failing to promptly and properly report it. If he says it was merely an uncomfortable conversation, he clears the president of wrongdoing and sullies his own image as a guy who attempted to smear the man who fired him.

Jarrett prefaces this with a stink about “those who don’t know the first thing about the law”. This is a classic preface intended to boost one’s own credibility by simply knocking down the credibility of others. But the dagger that stabs through the heart of Jarrett’s “Comey has put himself in a box” argument is the fact that Comey himself is “a person in civil or military authority under the United States” and is thus a person to whom he can safely report such information. And even if you think that that’s cheating (i.e., reporting to one’s self in the capacity of the Director of the FBI), there is the fact that the Comey memo was contemporaneously shared with others in the FBI who could also be considered “person[s] in civil or military authority under the United States.” So, any way you cut it, 18 U.S.C. sec. 4 should pose no problem for Comey. This is a reasonable conclusion that can be reached by people like me who are lawyers just as well as by “those who don’t know the first thing about the law.”

Add to the mix the fact that the person under scrutiny was the most powerful person in the world, the president of the United States, and you have a situation that is unique enough for Jarrett to be considered irresponsible in not mentioning the special circumstances that make it especially difficult and painful to raise allegations of felonious conduct against such a powerful personage.

I’ll end this piece with an appeal to collaborative patriotism, based on reason and patient mutual understanding. I think we can all agree that Russia’s Vladimir Putin is overstating his case when he says America is suffering from “political schizophrenia”. But we’d be foolish not to recognize and legitimately fear the hyper-partisan atmosphere that has recently grown stronger here in our great country. Let us promise each other to spend a little more time and energy thinking and listening before passing judgment. I can forgive Jarrett for deliberately tricking his readers, but I cannot ignore the tricks. I must expose them and thereby press the “reset” button that allows Fox News readers to rethink the Comey memo in the wider context of investigations, White House shenanigans, and everything else that goes into making a reliable determination of obstruction of justice. Patience and effort are required here. Let’s solve this situation together. Friends, countrymen, Americans, lend me your ear.

Flags on the National Mall (Lipton Sale)