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Monday, December 04, 2017


It's not illegal if the president does it

by digby

I wrote about the president's obstruction tweets for Salon this morning:

President Trump had quite a week. He lied about his "Access Hollywood" tape, attacked CNN International -- prompting authoritarians all over the globe to follow suit -- made a racist slur in front of Native American war heroes and tweeted out far-right conspiracy websites and anti-Muslim videos, prompting a major diplomatic crisis with America's closest ally. It didn't get any better over the weekend.

The Daily Beast reported that Trump had been worried for a while that former national security adviser Michael Flynn had "turned on him" and that the president was "personally hurt" by the news Flynn was potentially cooperating with the special counsel. When it turned out on Friday that Flynn had agreed to plead guilty to lying to the FBI in exchange for telling the prosecutors everything he knows, Trump pretty much lost it. From the tenor of his tweeting over the weekend, hurt has given way to panic.

He managed to stay quiet through Friday night while he attended several fundraisers in New York to deliver the good news to his fellow multi-millionaires that their massive tax cut was one step closer to fruition -- and collect his commission. As he always says, "To the victors belong the spoils!" But by Saturday it had all obviously become too much and Trump tweeted: "I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!"

It appeared that the staff hastily tweeted a tribute to Rosa Parks and yet another Melania Trump "Christmas at the White House" picture in a vain attempt to make that tweet slide down the timeline, but it was too late. Everyone saw that the president had admitted to something he'd never admitted to before: He already knew Flynn had lied to the FBI when he fired him. Knowing that, Trump took FBI Director James Comey aside the very next day and asked him to go easy on his buddy. That would be known as obstruction of justice.

That tweet sent the White House spinning like a top. At first officials insisted it was a "paraphrase" of the statement White House lawyer Ty Cobb had released the day before. But when reporters went to check, there was nothing like that to paraphrase. Finally, Trump's personal lawyer John Dowd fell on his sword and said he had composed the tweet and made a mistake in the way it was worded. He hadn't meant to say that Trump knew Flynn had lied to the FBI before he fired him.

Normally, if a lawyer made such a mistake they would be fired, particularly if the client was the president of the United States. Moreover, nobody believes that anyone but Trump wrote that tweet, because nobody but him would be stupid enough to think that tweet should be written in the first place. The idea that his lawyer would think it was a good idea to tweet anything about the case is simply absurd. It was a foolish admission, right up there with Trump going on TV with Lester Holt and admitting that he fired Comey over the Russia investigation.

Unfortunately for Trump, Dowd went on to confuse the matter even more by telling The Washington Post that Trump "knew in late January that then-national security adviser Michael Flynn had probably given FBI agents the same inaccurate account he provided to Vice President Pence about a call with the Russian ambassador." In other words, Trump knew that Flynn had lied, since lying to Pence was supposedly the reason he was fired.

More importantly, why in the world would Trump have asked the FBI director to go easy on Flynn if he hadn't known Flynn was in legal trouble? That never made any sense at all. Trump attempted to clean that little matter up on Sunday morning with this tweet:

That, of course, is where this was always headed. It's Comey's word against Trump about what happened when he shooed everyone out of the Oval Office to talk to the FBI Director alone the day after Flynn was fired. Comey took notes and told other members of the Justice Department what happened at the time. We don't know if Trump told anyone. But since Trump lies compulsively, it's going to be tough to make the case that the country should take his word over Comey's -- or anyone's.

What this bizarre episode over the weekend showed was the degree of stress that Trump is under, knowing that Flynn is cooperating. It also reveals the right's bold strategy to save him. Trump only tweeted a few words about Flynn. But he was obviously watching Fox News and issued a flurry of tweets about the counter-narrative that network is launching to discredit the Department of Justice and the FBI.

The idea is that Comey and his cronies covered up Hillary Clinton's crimes because they were against Trump from the beginning. (Yes, I know this doesn't make sense; it's a narrative, not a legal brief.) Trump's allies were helped along with that this weekend when news broke that a high ranking FBI agent, whom Mueller had dismissed last summer because he had sent some anti-Trump texts to his girlfriend, was also involved with the Clinton email case.

House Intelligence Committee chair Rep. Devin Nunes, R-Calif., who has supposedly recused himself from the Russia investigation but is obviously up to his eyeballs in it, has declared war on the Justice Department, saying it isn't cooperating. (The department says it is.) Now Attorney General Jeff Sessions has gotten involved, saying that he will ensure that Justice is operating with integrity.

Trump was very excited about this and posted a series of rambling hysterical tweets claiming that the FBI is "in tatters, the worst in history" but that he will "bring it back to greatness." FBI agents and Department of Justice employees were not amused. Former Attorney General Eric Holder tweeted, "you’ll find integrity and honesty at FBI headquarters and not at 1600 Penn Ave right now.”

All this dragging on the FBI is a smokescreen, of course. But it will give the right-wing media and Trump supporters a storyline, and Trump loyalists like Nunes probably hope it will eventually turn up something to give Trump a reason to fire Mueller. It hard to see why they bother. If he wants to do it, he'll do it. After this weekend it feels as though the odds of such an impulsive action just went up. For an innocent man, the president is sure acting rattled.

Update: Axios has more on Trump's Lawyer Dowd saying something stupid today:

The "President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution's Article II] and has every right to express his view of any case," Dowd claims. 
Why it matters: Trump's legal team is clearly setting the stage to say the president cannot be charged with any of the core crimes discussed in the Russia probe: collusion and obstruction. 
Presumably, you wouldn't preemptively make these arguments unless you felt there was a chance charges are coming. 
One top D.C. lawyer told me that obstruction is usually an ancillary charge rather than a principal one, such as aquid pro quo between the Trump campaign and Russians. 
But Dems will fight the Dowd theory. Bob Bauer, an NYU law professor and former White House counsel to President Obama, told me: "It is certainly possible for a president to obstruct justice. The case for immunity has its adherents, but they based their position largely on the consideration that a president subject to prosecution would be unable to perform the duties of the office, a result that they see as constitutionally intolerable." 
Remember: The Articles of Impeachment against Nixon began by saying he "obstructed, and impeded the administration of justice."

They actually impeached Clinton for it. And many of the same Republicans who did that are still in congress today. Please.