Trump’s Request for Loyalty — In Itself, Not Improper
Following James Comey’s testimony I think there is one thing the public is currently missing about the topic of Trump asking for “loyalty”.
Distinguished scholars Andy McCarthy and Alan Dershowitz have both provided authoritative analysis on the criminal legal aspects of this topic (and both are eminently more qualified to speak on this matter than than I, a new law school grad, waiting to take the Bar). They are both very clear on why this is not a case of obstruction of justice.
And Corey Lewandowski has also attempted to support the President’s story by claiming that Mr. Trump was asking Mr. Comey for loyalty to the country. I agree with him on this as well. So I will not be rehashing any of these arguments.
But one thing I’m not sure has been made totally clear to the public yet is the Constitutional concept that the President really is the country’s CEO who is alone vested with all of the powers of all of the departments of the executive branch (Justice Department included — see Vesting Clause, Art. 2 Sec. 1 of the Constitution). As such, he has a right and a duty to make sure that all of those who are working for him are loyal to him personally as the President, in addition to being loyal to the country and to the Constitution.
I believe that this type of loyalty is the type of loyalty that President Trump was requesting when he asked FBI Director Comey for loyalty.
Under the Constitution, Mr. Trump has a responsibility to “take Care that the Laws be faithfully executed”, in other words, to run the country properly. (See Art. 2 of the Constitution). And in order to do so, he also needs to make sure that all of his workers (such as the FBI Director and the rank and file agents alike)— perform their duties to him and the country with the utmost loyalty and trustworthiness.
In performing his duties as President, Mr. Trump has to rely on his advisers, among the ranks of whom the FBI director is included. He thus needs the FBI director to be candid with him, and to provide him with timely and accurate information, so as to enable him to make good and proper decisions for the benefit of We the People. Were an FBI director such as Mr. Comey to lie to Mr. Trump or withhold or place any information in a false light during briefings — out of a personal bias against Mr. Trump or for any other reason — this would cripple Mr. Trump’s ability to be a successful as President, and by extension would have disastrous consequences for the country as well.
This is just my own personal speculation, but I think it’s possible that Mr. Trump became suspicious of Mr. Comey’s good faith in carrying out his duties after their first meeting in which other IC members present at Trump Tower on January 6. According to Mr. Comey’s written testimony, at the end of this meeting, Mr. Comey personally showed Mr. Trump the Steele, or “Golden Showers” dossier. I am referring to the absurd document which contained an allegation that Mr. Trump brought prostitutes to a hotel room where President Obama had slept and had them urinate on the bed, and this was allegedly recorded by the Russians. It seems possible that Mr. Trump was highly shocked and appalled that Mr. Comey would present to him this document as if it was serious evidence. We do not know Mr. Comey’s body language or exact words during this first one-on-one meeting, but we do know that Mr. Comey stated that one of the reasons he showed Mr. Trump the document was to “blunt” any effort by the Russians to compromise Mr. Trump (the other is that he knew the document would be leaked to the media). This shows that Comey did not shrug off the document as nonsense but actually thought that Trump could be compromised. It definitely seems possible that Mr. Trump may have felt that the document was so outrageous that Mr. Comey was either a fool or acting in bad faith for putting any stock in it. And this seems like it would actually be a reasonable interpretation for the President to make given that there was still as far as we know no actual evidence of the outlandish “unverified” document’s reliability. Thus, Mr. Trump may have reasonably doubted Mr. Comey’s loyalty.
And given that Trump reasonably doubted Mr. Comey’s loyalty, it was perfectly reasonable — in fact it was his duty — to question Mr. Comey’s loyalty in person the next time they met, at their dinner together on January 27. As I already mentioned, a President must be able to rely on his people, or he will not be able to do his job and fulfill his duty to the American people.
I just want to mention one other thing before ending this column. This morning I thought of another way of looking at the loyalty issue, which might be helpful. With the Presidency, we can draw an analogy to business agency law. Heads of federal agencies are by definition agents of the President. And, under well-settled business law, agents or underlings in the corporate world owe a duty of loyalty to their principal or boss. (Rest. 2nd of Agency, Sec. 387). They must not act adversely to the principal (Sec. 390), and must disclose conflicting interests (Sec. 392). They also must not use or disclose any confidential information without the principal’s consent (Ooops! Sec. 395). The law finds these rules necessary in order to help CEO’s and others manage businesses in order for society to get things done. Without rules such as these, managers could not trust employees, and much less would be accomplished in the business world, leading to economic disaster. I believe Trump, a creature of the business world, implicitly understands such a need for loyalty, and thus he requested it from Mr. Comey. (So it is a case of the business world meeting the world of Washington, as others have suggested.)
Of course Mr. Comey argues that in the broader context Trump was really trying to communicate a demand or threat for the purpose of obtaining loyalty in the sense of not pursuing a criminal matter in order to please Mr. Trump personally. He has made his case and we can all decide who we feel is more credible. I don’t really want to get into these details, as others more qualified have been writing extensively about them. But I just wanted to point out that for the above reasons I believe there is really nothing suspect about a President of the United States or CEO asking an employee whom he is relying on — in order to perform his own job — to give him loyalty.
David is a recent law school graduate (pending bar examination), and a political junkie. None of the materials in this article are intended as legal advice.