The New Low Bar
The more bizarre, and probably illegal, Trump’s conduct as president gets, the more those on the right are being exposed as completely lacking any principles other than pure partisan opportunism. And the extent of the behavior they are willing to condone is now downright scary.
The best pro-Trump arguments in defense to the Comey testimony appear to essentially come down to two points:
- Trump didn’t direct Comey, he merely stated a “hope.”
- Even if he did direct Comey, he had the legal authority to do so.
Aside from being wrong on a the legal issues, and totally off base on a few critical factual issues, what the pro-Trump line is ultimately willing to accept and defend is deeply disturbing.
Even before we get there, however, despite seeming plausible on the surface, the legal argument underlying the pro-Trump line is simultaneously weak and a red-herring.
The best arguments about why Trump is not guilty of obstruction justice are weak-sauce
Andrew McCarthy’s piece in the National Review seems to be a decent example of the reasonable-seeming pro-Trump line. To advance the not guilty of obstruction of justice theory, he argues first that there was no threat, and second that Trump’s intent wasn’t corrupt. Therefore, he concludes, Trump’s conduct does not rise to the level of the criminal code’s definition of obstruction of justice.
To say there was no threat, McCarthy makes this peculiar statement:
Even on the most extravagant construction of President Trump’s February 14 plea to then-director Comey on Michael Flynn’s behalf — i.e., a vague, implied threat to fire Comey — no serious person is contending that Trump told Comey, in effect, “Do what I want, or else.”
This doesn’t strike me as a particularly extravagant construction, given the context in which it was made (which is unaddressed by McCarthy), and is certainly not so extravagant as to be dismissed so easily. And, a former prosecutor seemingly suggesting that a threat wasn’t really a threat because it was merely implied rather than stated directly, is, to say the least, unusual. Never mind the fact, also unaddressed by McCarthy, that Trump’s non-threat was later enforced. But maybe I’m just not a serious person.
His next argument about why Trump is not guilty of criminal obstruction is that Trump’s actions were not “corrupt.” What McCarthy has to say on this point essentially boils down to the contention that the FBI is under the direction of Trump, and therefore any attempt to influence Comey’s prosecutorial decisions was simply a permissible exercise of prosecutorial discretion.
To make this argument, he begins with addressing the essence of nearly every criminal charge, which is the requisite mental state of the accused:
To demonstrate that a person acted corruptly, it is not sufficient to show that he acted intentionally. The act must also be done with an awareness that the conduct in question violates the law.
Then, inexplicably, he completely ignores what otherwise is default prosecutorial fodder for how to prove a mental state: the context in which a person acted. Rather than address the lengths Trump was willing to go to ensure that his conversations with Comey were private, McCarthy engages in a fantasy that Trump was simply making a reasoned decision that it was wise and just public policy to stop investigating Flynn.
Even if you are willing to meet McCarthy at his premise — that it is acceptable for a President to weigh in on matters of prosecutorial discretion in cases in which a close associate is a target — it’s hard to argue that he did so properly here. If this was Trump’s intent, there was a legal and politically accountable method for doing so: his pardon power.
To do that, of course, would have been politically unacceptable. So, to bypass public knowledge or accountability, Trump repeatedly and intentionally engaged in private encounters with the FBI director to deliver thinly veiled demands and threats regarding an ongoing investigation. As far as evidence of criminal intent goes, this is up there. I’d be willing to bet McCarthy has secured convictions on far less.
Not only are the arguments weak, they are a red-herring
What’s even more important than the weakness of the legal arguments that Trump is not guilty of the criminal code’s definition of obstruction of justice, however, is the fact that delving into them at all is a deflection. The real question regarding the conduct of a sitting President is not whether it violated the criminal code, but whether it merits impeachment.
Impeachment is a completely different beast than a criminal proceeding. The use of the term “high crimes and misdemeanors” was used very intentionally by the authors of the Constitution, and it covers conduct that is beyond violations of criminal law. You don’t have to take my word for it, just ask Andrew McCarthy, circa 2013, when he was talking about whether Obama should be impeached:
The Framers settled on “high crimes and misdemeanors,” a standard that had been used by the British parliament for centuries. The concept is not rooted in statutory offenses fit for criminal court proceedings. Instead, it involves damage done to the public order by persons in whom great public trust has been reposed.
Jon Roland of the Constitution Society emphasizes the political aspect of impeachment that distinguishes it from technical legal procedures. It was immaterial, he explains, whether the cited offenses “were prohibited by statutes”; what mattered was “the obligations of the offender. . . . The obligations of a person holding a high position meant that some actions, or inactions, could be punishable if he did them, even though they would not be if done by an ordinary person.” In that sense, a president is like a soldier, whose duties make him punishable for actions that would not be offenses if committed by a civilian: such things as abuse of authority, dereliction of duty, moral turpitude, conduct unbecoming, and the violation of an oath.
So, an impeachment proceeding is not tied to conduct that would merit a conviction in a criminal court; it is a purely political animal. The process happens in the chambers of Congress, and the ultimate arbiters of what constitutes “high crimes and misdemeanors” are politicians, not judges. What qualifies as an impeachable offense is whatever enough members of Congress decide constitutes, for example, “abuse of authority” or “conduct unbecoming.”
I don’t know how many Republicans in Congress will be willing to stand up and say that secretly attempting to coerce an FBI director into ending a criminal investigation against an associate is squarely in the realm of what the Founders imagined when they granted Congress impeachment powers. But I’m waiting to be disappointed.
All this however, only addresses the less important point
The most important thing to recognize is what, underlying their arguments, a defender of Trump is now willing to accept as okay. In making these arguments, those of the “law and order” party are in effect saying that a President should be permitted to secretly threaten to fire the director of the FBI in an attempt to end a criminal investigation into his associate, simply because the President thinks he’s a “good guy.”
This is conduct of an autocrat, not of a politically accountable head of state in a democratic society. And this isn’t even what passed for autocracy around the water cooler of the National Review in 2013, which was use of executive action to take actions reserved by Congress, this is straight up despotism.
The National Review crowd is now effectively arguing that the President has unchecked plenary power to secretly dictate the minutia of the federal police state using coercion. Taken at their word, it is perfectly permissible for Trump to secretly tell the incoming director that his job is contingent on indicting Hillary Clinton, Kathy Griffin, or anybody else he wants. Not only should the other branches of government have no ability to stop this, they imply, but the people should not even find out.
The biggest problem is that they don’t even believe this. Neither do congressional Republicans. Obama would have been out within the week.
It’s okay that Trump is an autocrat, they are saying, so long as he’s our autocrat.