Every word of James Comey’s Senate Committee appearance has already been parsed, fileted, and seasoned by pundits, anchors, and the constitutional lawyers imported to weigh in on whether the testimony on Comey Central rose to the level of obstruction of justice or an impeachable offense.
But much of the significance of Thursday’s Dancing with the Star Witness lay in the
words not spoken, and in the conclusions that were only to be inferred.
The most significant words unspoken? No one on the Senate
Committee – Democrat or Republican -- ever challenged Comey’s core narrative. No senator attempted to jostle or question his
recollection. None baited him with hypotheses about why a fired employee might
be motivated to embellish or even wholly concoct a juicy story. No one rolled their eyes theatrically to
convey doubt that anyone could be so absolutely certain of his memory of
specific phrases and words.
Let us indeed hope there are tapes, but we doubt they
exist, and if they ever did, Trump holds the law in so little regard that we
can bet they have already been destroyed. If so, the question of what was
actually said in a closed door meeting between the two men will, by definition,
come down to “he said, he said,” and the only issue will be who is
believed. By dinner time Thursday it was
clear that pretty much everyone residing in the non-alternative fact universe
has put their money on Comey.
The most partisan Republicans resorted to defending their
President with a strategy that we might call “hope and charity.” They debated
the meaning of the word “hope,” and offered wobbly charitable interpretations
of how Trump’s words could be viewed as the coarse and unrehearsed musings and maneuvering of a man accustomed
to the rough and tumble of business rather than the legally charged guardrails
of executive government.
Most notably in this regard, Republican Senator Jim Risch of Idaho
offered a fascinating prologue before launching his true line of inquiry:
“I
want to drill right down, as my time is limited, to the most recent dust up regarding
allegations that the President of the United States obstructed justice. Boy,
you nailed this down on page 5, paragraph 3. You put this in quotes. Words
matter. You wrote down the words so we can all have the words in front of us
now. There's 28 words now in quotes. It says, quote, I hope -- this is the
president speaking — I hope you can see your way clear to letting this go, to
letting Flynn go. He is good guy. I hope you can let this go. Now, those are his
exact words, is that correct?”
What is remarkable here is the length that the Senator
goes to acknowledge that he believes that Comey has precisely and accurately
“nailed” Trump’s quote. Risch would then shift gears and embark on a challenge to Comey on whether the use of the word “hope” in the
phrase made the comment a benign suggestion rather a direct order. But the significance of his opening was the wholesale concession by a Republican that Comey had perfectly and precisely quoted the President.
Referencing this aspect of the testimony, Trump’s son proved
that legally damaging tweets run in the family. Donald Trump, Jr. tweeted “Knowing
my father for 39 years when he ‘orders or tells’ you to do something there is
no ambiguity, you will know exactly what he means.” This, of course,
establishes that the younger Donald – like Senator Risch -- has wholly accepted
Comey’s version of the precise words, and is only questioning how to interpret
them.
Comey’s response was one of his strongest moments in the
day. He demanded that the words be assessed in context. You don’t need a master’s
degree in hermeneutics to know that the true meaning of words cannot be drained
and sanitized by abstracting them from the specific historical context in which
they appear. When the President of the United States demands to see a man in a
subordinate position alone, and then
uses the closed door meeting to make one point and one point only – “I hope you
can see your way to letting this go” – the word “hope” has a very narrow
meaning, more like “I hope you understand that I am actually issuing you a
direct order.”
Indeed, this is an excellent example of the law of
unintended consequences: Senator Risch had "hoped" to defuse the impact of Comey's testimony by questioning his interpretation of Trump's phrasing. Instead, his line of inquiry accomplished three things: (1) it provided an extended laser focus on the precise phrase that is ground zero for a charge of obstruction of justice, (2) it served to seal the
fact that the Republicans wholly accept Comey’s transcription of the exact language, and (3), it provided
the perfect forum for Comey to spell out exactly how he interpreted
the meaning inherent in the words.
Perhaps the most fascinating implication of this is the
inference that the Republicans are willing to concede the same assumption of
accuracy to all the individual memoranda that Comey created after each meeting.
The Republicans essentially issued a carte blanche that Comey’s carefully
written summaries will stand as the undisputed factual accounting of Comey’s
one-on-one meetings with the President – until someone produces actual
recordings.
The word “hope” is a recurring motif in this drama,
bearing directly on the issue of audio recordings. On May 12, shortly after
firing Comey as FBI Director, Donald Trump had issued a strange and seemingly ominous
tweet:
@realDonaldTrump:
“James Comey better hope that there are no
"tapes" of our conversations before he starts leaking to the press!”
Comey, in his testimony Thursday, seized a moment to gush
“Lordy, I hope there are tapes.” This
direct counter-punch at Trump – echoing and yet inverting the exact same phrase
that Trump had used in the tweet – was a brilliant challenge. Bring it on, Mr. President. Produce those
tapes. If tapes don’t exist, it
proves you were being intentionally misleading and threatening in your May 12
tweet.
And if they do exist, Lordy,
Mr. President, you are in deep shit.
Trump’s overall response to the Comey testimony was
pretty much exactly what we have come to expect from this White House: you
punch me, I will punch you back harder. Unlike all the Republican senators (and
even his son!) Trump alone appeared to be taking the position that Comey was
lying under oath in his characterization of the private meetings, asserting
that he never directed Comey to drop the investigation of Flynn. At some point
– either through tapes or in a sworn deposition to Special Prosecutor Mueller –
we will learn whether Trump means that Comey literally fabricated the exchange,
or is simply hiding behind Senator Risch’s weasel that the word “hope” should
not be construed as a direct order. Trump would then be in the position of,
well, hoping that people buy into
Risch’s logic. If not, his “hope” to Comey is a pretty cut and dried example of
obstruction.
Of all things said and unsaid, there is one fact that surfaced
for the first time in the Comey hearings, and while it is not legally damning,
it was nonetheless a very damaging
commentary on the priorities and concerns of this President. Again, it is the words unspoken that have so much significance.
Martin Heinrich, a Democratic senator from New Mexico, took
a portion of his allotted seven minutes to focus on the issue of what Trump was
not discussing with Comey. He asked
the former FBI Director whether the President of the United States had ever in
the course of nine private one-on-one conversations raised the issue of what
the FBI was discovering about the core task of its investigation: understanding how Russian hacking was
compromising our democracy.
Senator Heinrich:
“Did the President in any of those interactions that you’ve shared with
us today ask you what you should be doing or what our government should be
doing or the intelligence community to protect America against Russian
interference in our election system?”
Former Director Comey: “I don’t recall a conversation
like that.”
Senator Heinrich:
“Never?”
Former Director Comey: “No.”
We thereby learned the President of the United States
spoke one-on-one with the head of the FBI nine times in 2017, and not once did
the President show the slightest interest in the FBI’s investigation into how a hostile nation waged cyberwarfare against the
United States. Instead, Trump chose to
spend his moments of one-on-one time with Comey asking the FBI Director to lay
off Flynn, and repeatedly berating Comey to publicly state that Trump was not
under investigation. The words unspoken
speak the loudest: Trump was far more concerned with how the FBI investigation
was threatening him than how Russian hacking was threatening our democracy.
The Fox News faithful emerged from the hours of hearings
with one morsel of new information to put at the front of their newsfeed: that
Comey had shared his write-up of a meeting with Donald Trump with a law
professor at Columbia University for the express purpose that the memo be forwarded
to The New York Times. Comey was brazenly forthright in the hearings
in offering the explanation that he felt sharing the memo would ensure the
appointment of a special prosecutor.
Trump’s lawyer wasted no time in trying to condemn Comey as a sleazy “leaker”
of government secrets who should now be the subject of an investigation.
There isn’t much of a case against Comey on this front. Comey is now a private citizen, none of the
information in his memo was classified, and Donald Trump did not even try to
exert executive privilege over Comey's testimony.
Attempting to defame Comey as a “leaker,” however,
illustrates the degree to which Trump’s White House fails to understand the
rights and actions of citizens in a democracy. “Leaking government secrets” conjures an
illegal action carried out under cover of darkness in which a paid government
employee secretively contacts a reporter and passes along information as an
“anonymous source.” That’s quite a distance from James Comey swearing an oath
of truth on national television and freely volunteering this information in an
open assembly. If you believe what Comey did in this regard has any whiff of
illegality, you’d be wrong – but you should acknowledge that your accusation is
not “leaking information” but is “civil disobedience.” That’s when people stand
up in the public square and break a law in public to call attention to government
wrongdoing.
For all the frothy MSNBC salivation about potential
obstruction of justice charges, impeachment is simply a political judgment by
Congress of the legal issues. The
question of whether Donald Trump serves out his full term will be largely based
on whether a requisite number of Republicans in the House and the Senate conclude
that Donald Trump has become a hindrance to their agenda and their own
re-election, not because they feel any moral or ethical adherence to the rule
of law and constitutional democracy.
And yet, in this regard, these hearings represented a
very significant shift.
There was a great deal of time devoted to discussing the
word “hope,” and there were many “charitable” interpretations of why the
President’s actions should be viewed as neither criminal nor grounds for
impeachment. What there was not
was a whole lot of faith in this President.
No Republican senator dared go where Trump no doubt
wished, a full frontal assault on his motive and credibility: “Former Director
Comey, just a few short months ago, my
Democratic colleagues were screaming for your head, accusing you of horrendous
judgment in the handling of the Anthony Weiner emails. The Democratic candidate
for President blamed your erroneous judgments for her loss. President Trump took office, and, despite
grave misgivings about your leadership and competence, allowed you to keep your
job until he realized that you no longer had the confidence of government
leaders across party lines. He fired you. Then, and only then, you immediately
took what is clearly retaliatory action by slandering the
reputation of the President who fired you. Director Comey, is that not exactly the line
of reasoning you would employ if you were the Prosecutor interviewing you as a
witness? Why, sir, should anyone believe you?”
And, no Republican senator raced to defend the President
based on their deep belief in his moral stature. Perhaps had there been a different occupant of
the White House – one who the senators actually respected – we would witnessed a full throated endorsement: “Former
Director Comey, the President of the United States has publically and on the
record denied that he ever gave you any direction to discontinue the
investigation of Michael Flynn. Yet you come here today and ask that this
august body believe you over the word of the President of the United States, a soul
whose integrity is unassailable, whose word is bond, who seeks only truth,
justice, and honor, and who holds the duty to preserve, protect, and defend the
Constitution above life itself.”
No, you didn’t hear anything like that on Thursday,
either. More words unspoken.
The future of this presidency does not lie in legal
definitions of the words “hope,” “let it go,” or even “obstruction of justice.”
It lies in the court of public opinion, as a steady drip, drip, drip of startling evidence
accumulates, and ordinary voters attempt to sort out their own feelings by
collecting input from trusted sources… like their own senators and congressmen.
The words unspoken on Thursday – the refusal of
Republicans to stand by their man, and their obvious acceptance of Comey’s
version of the truth – sent a message to the rank and file of the Republican
Party.
We don’t believe the President.
And neither should you.
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