One Democrat who previously called for Comey to resign said after the Comey Memo leak that Comey now has a chance to serve his country and do honor to a life of public service. Politics … it’s a disgraceful way to make a living. Once again, the forces of knee-jerk, anti-Trumpers find themselves washing and wearing their Comey jerseys. If it were Christmas, they’d be singing his tune. What Comey’s memo mess calls for is some objective analysis.
First, it’s bad for a sitting President to have ANY discussion that hints at trying to influence, impede, or stop an ongoing criminal investigation. It’s particularly bad if that investigation relates to your campaign, you, or one of your appointees. For stone cold Trumpers, if you don’t get that, you are as guilty of partisanship as the army of anti-Trumpers on the hard-left and the establishment right.
For some, the illegal and improper leak of an unsubstantiated “memo” purported written by the fired FBI director is suddenly religious doctrine. It is to be taken on faith, unquestioned, and preserved as fact. That’s nonsense. Let’s see it, read it, and analyze it. After we do that, let’s bring Mr. Comey in to question him about it.
The purported Comey memo is fascinating drama, if only because Comey loyalists at the FBI are leaking materials to damage a President … one whom they say disgracefully asked for Comey’s loyalty. Make no mistake, Mr. Comey must be loyal to the law, and the President has no right to make such a request. Likewise, Comey loyalist in the FBI must be loyal to the law, and to the policies that prevent such political leaking.
We need more law loyalists, and fewer partisan loyalists.
I both posted and tweeted out yesterday that of all the phony scandals and manufactured outrage, the purported Comey memo is the first piece of information I have heard about that gives rise to the “possibility” of a scandal for the President. It’s the first and only. However, when I said that, I was not suggesting that it is proof of wrongdoing, or that the memo as reported, by itself, gives rise to a crime or impeachment.
The accusation of obstruction of justice by a President on these facts warrants consideration “if” all elements of a crime are present. Then it would be a problem for Trump. Wow, we are a long way from that. Still, the charge has the veneer of legitimacy, which is a first. That is why it is news.
The Comey memo itself, to the extent it exists as reported, raises many questions. Not all those questions are bad for Mr. Trump.
Here are a few questions I have:
- If Mr. Comey thought Trump “obstructed justice” in February, why didn’t he open an investigation then?
- What else was actually said between these two men in that meeting? For example, did Mr. Comey follow on by saying, “Mr. President, it’s not appropriate for me to discuss this with you?” Did the President say something like, “It’s up to you, Mr. Comey, this is your investigation.”
- Is anything like that in the memo? Was anything like that left out of the memo?
- Why was only one snippet of a memo leaked to a reporter … and read to the reporter … rather than providing it all? Doesn’t that hint at a selective, out of context, political hit?
- Why would Trump interfere with an investigation when he holds the pardon power for Mr. Flynn?
- Does the Comey memo also say that Mr. Trump isn’t subject to or a target of the FBI investigators? If the Comey memo has every conversation and interaction, wouldn’t it include that?
- If Trump obstructed Justice, why would two US Senators as late as the first week of May confirm Mr. Trump’s assertion that he was not a subject of an FBI investigation after being briefed by Comey?
- Mr. Comey has a legal obligation to report a crime or facts that give rise to obstruction of justice by anyone, including the President. Why didn’t he do that? Or did he, and to whom?
- Given that Mr. Comey cleared Mrs. Clinton of a flagrant violation of the law under 793(f) for her mishandling of classified material, and in so doing he insisted that she showed no “intent” to break the law … did Comey come to the conclusion that Mr. Trump’s purported remark to him did not and could not rise to the level of “obstruction of Justice” based on the legal requirements to prove such a charge?
Indeed, under any theory of obstruction of Justice, the known facts of this single, purported statement by President Trump does not rise to the level of obstruction. In fact, the most applicable statute, 18 USC 1512(b) would be impossible to prove on these facts. I’d say, more pointedly, “No reasonable prosecutor” could take such a case to a grand jury.
However, with a wounded, unpopular president, under attack and mired in manufactured scandals, the appearance of impropriety, and the naked legal ignorance of the average American, a well-crafted FBI leak might lead partisans to “feel” like this is obstruction of justice. The Comey memo is both a hint of possible impropriety by the President, and proof of impropriety by the FBI.
On this memo snippet alone, we have no evidence of a crime. We do have evidence that Mr. Trump walked into a subject area about which he should have stayed clear. To the extent Mr. Trump was going to say anything to Mr. Comey about Flynn after his resignation, it should have been, “Director Comey, we trust the professionalism and judgement of the FBI. I look forward to your team completing its investigation as it sees fit.”
Trump’s inability to show this type of judgment and his unfamiliarity with legal and government norms of “avoiding the appearance of impropriety” are chief complaints by serious people against him from the beginning. It is why he can’t win the confidence of all Americans. However, being bad at one’s job, and failing to understand the rules, by themselves, do not rise to the level of a crime.
The President has opened the door for legitimate inquiry into his conduct. Likewise, Mr. Comey’s loyalist leakers have presented a partisan, unfair, carefully manipulated leak they designed to politically wound the President.
The Comey memo raises more questions than it answers, and ironically, the entire memo leaking incident proves that the FBI has deep-seeded problems with its leadership and remaining, high-level, Comey loyalists. That hurts the 36,000 employees, the vast majority of whom are true pros doing their job everyday. Mr. Comey was its Director, and his termination looks even more legitimate given the conduct of his loyalists. That is the only reasonable conclusion we can reach.
Political partisans are singing on high about Comey today … and the newly faithful are joyful and triumphant. However, the leak proves no crime by President Trump. It proves the FBI is a dysfunctional, politically motivated, deeply divided agency. That, we already knew. It proves this President has judgement and temperament issues, which we likewise already knew.
Now, tell us something we don’t know.
Author: Richard Kelsey
Richard Kelsey is the Editor-in-Chief of Committed Conservative.
He is a trial Attorney and author of a #11 best-selling book on Amazon written on higher education, “Of Serfs and Lords: Why College Tuition is Creating a Debtor Class”
Rich is also the author of the new Murder-Mystery series, “The ABC’s of Murder,” book one is titled, “Adultery.”
Rich is a former Assistant Law School Dean and Law Professor. At Mason Law Kelsey conceived of, planned, and brought to fruition Mason’s Center for the Protection of Intellectual Property, known as CPIP, drawing on his expertise as a former CEO of a technology company specializing in combating cyber-fraud.
In 2014 he was elected by the graduating class as the faculty speaker at their graduation.
He is a regular commentator on legal and political issues in print, radio and on TV. Rich has appeared on hundreds of stations as a legal expert or political commentator. He provided the legal analysis for all stages of the Bob McDonnell trial and appeal for numerous outlets including NPR and WMAL.
Rich also writes on occasion for the American Spectator and CNSNews.com.
In his free time, Rich is part of the baseball mafia of Northern Virginia, serving on numerous boards and as a little league and travel baseball coach.
His Twitter handle is @richkelsey.