THE BOY SCOUT AND THE BULLY

THE BOY SCOUT AND THE BULLY

Mr. Smith came to Washington DC this week.  

In the person of James Comey.

The original Mr. Smith was played by Jimmy Stewart in the 1939 Frank Capra classic Mr. Smith Goes to Washington. 

In 1989, the Library of Congress added the movie to the National Film Registry.  The Registry preserves films deemed to be "culturally, historically or aesthetically significant."  By the time Capra's Academy Award winning classic made the list, it had been recognized as the famous director's signature statement on the power of common decency over thuggish crooks as Stewart, in the person of a newly appointed and utterly underestimated Sen. Jefferson Smith, filibusters the Senate with his Boy Scout honesty in the face of crooked politicians who plant false stories to bring him down and preserve their own corrupt lucre.  

The movie has been called "one of the quintessential whistleblower films in American history. "  And in 2007, at the first "Whistleblower Week in Washington", Dr. Jeffrey Wigand celebrated  it as a seminal event in US history.  

Dr. Wigand should know.  

Because in 1996 he blew the lid on Brown & Williamson's efforts to jack up the addictive nicotine content in cigarettes.

And was subject to death threats for doing so.

On Thursday, James Comey blew the whistle on Donald Trump.

In measured tones, and after parking all 6' 8" of his Stewartesque frame squarely in front of the US Senate's Select Committee on Intelligence, Comey recounted his entire relationship with Donald Trump.  

He met Trump for the first time on January 6 at Trump Tower.Though that meeting involved a group intelligence briefing of the then President-elect "concerning Russian efforts to interfere in the election," Comey had been chosen by the Director of National Intelligence (DNI)  to give Trump a separate private briefing afterward on what Comey euphemistically referred to as "some personally sensitive aspects of the information assembled" by the "intelligence community," or what is the now infamous MI6 dossier. Comey did so, and immediately after leaving the meeting and hopping into an FBI car, he began typing up a memo of his conversation with Trump.

This was the occasion for Comey's first testimonial blockbuster.

Asked why he decided to memorialize his conversation with Trump, Comey stated that the "circumstances, the subject matter and the person I was interacting with" led him to do so. He then explained what he meant: "I was alone with . . . the president-elect . . . I was talking about matters that touch on the FBI's core responsibility and that relate to the  . . . president-elect personally . . . And then . . .  I was honestly concerned that he might lie about the nature of our meeting, and so I thought it really important to document. That combination of things, I'd never experienced before, but it led me to believe I've got to write it down, and I've got to write it down in a very detailed way."

So he did.

Write it down, that is. 

In detail . . .

When it occurred.

And then continued that practice in all his subsequent meetings and conversations with the President.

We lawyers have a term for this.  It's called "present recollection recorded" and it's considered highly credible.

The second blockbuster occurred when Comey described his January 27 dinner with the President. 

That dinner was arranged by Trump, not Comey, and though the President told Comey he had originally planned to make it with Comey's family, it turned out to be, as Comey put it, "just the two of us, seated at a small oval table in the center of the Green Room."  In that one-on-one, Trump "began by asking" Comey if he wanted to stay on as Director of the FBI.  Comey found this "strange" because the topic had already come up three times before between them and Comey had made it clear that he intended to stay on and serve out the remaining six years of his term.  Comey also thought the President was "looking to get something in exchange for granting [his] request to stay in the job."  "And then, because the set up made [him] uneasy," Comey told Trump that he, Comey, "was not 'reliable' in the way politicians use that word."  

"A few moments later," according to Comey, " the President said 'I need loyalty, I expect loyalty.'"

Comey then froze.

He didn't "move, speak, or change [his] facial expression in any way during the awkward silence that followed."

Agreeing with Virginia Sen. Warner that he'd never "had [that] kind of request before, from anyone else . . . in government," Comey explained in the Senate hearing that Congress had "created a ten-year term" for FBI directors precisely to stop any director from "feeling" the need to be "loyal[] . . . to any particular person ."  As he put it, "The . . . statue of Justice has a blindfold on because you're not supposed to be peeking out to see whether your patron is pleased or not with what you're doing."

Even if you patron is Donald Trump.  

In fact, especially if that is the case . . .

Which became manifestly evident a little more than two weeks later.

On February 14, Trump met in the Oval Office with a half dozen Administration officials "for a scheduled counter-terrorism briefing." The briefers included Comey, the Attorney General, the Secretary of Homeland Security, the CIA's Deputy Director and the Director of the National Counter-Terrorism Center, with assorted "others" sitting behind them.  When the meeting ended, Trump told the group that he "wanted to speak to" Comey "alone."  Two other people in the room -- the Attorney General and Trump' son-in-law Jared Kushner -- had to be told to leave a second time, Comey "sens[ing] . . . the attorney general knew he shouldn't be leaving, which is why he was lingering"  and "think[ing] [Kusher] picked up on the same thing."  

Comey's impression was "something big is about to happen."

He was right.  

The President of the United States was about to obstruct justice.

Once the Oval Office had been cleared , and "the door by the grandfather clock closed," he and the President "were alone." 

Trump then said he "want[ed] to talk about Mike Flynn."  

Trump told Comey that Flynn "hadn't done anything wrong in speaking with the Russians," and then riffed "about the problem with leaks of classified information." As Chief of Staff Reince Priebus "leaned in through the door by the grandfather clock," with a "group of people waiting behind him," Trump "waved" at Priebus to "close the door."  

Trump then returned to the topic of Flynn.  

"He is a good guy and has been through a lot," said the President.  

And then he lowered the boom.  

The President of the United States looked the then-Director of the Federal Bureau of Investigation "in the eye" and said: 

"I hope  you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go."

The United States criminal code makes it a crime to "corruptly" obstruct or impede an on-going investigation. What "corruptly" means in this context is that a defendant intended to interfere with the investigation.  If that was his intent, the element of acting corruptly is satisfied.  If that was not his intent, the crime is not proven.

Applied here, it is pretty difficult to imagine Trump intending anything else.  Trump is not subtle.  He kicked everyone out of the Oval Office, including two who resisted going, later shooed away yet another on-looker, and then specifically told Comey behind closed doors that he "hope[d]" the Director of the FBI could "see his way clear" to shutting down an open investigation.  Less than three months later, after Comey had not done what Trump "hope[d]" he'd do, Trump (i) fired Comey and then (ii) admitted the motive for doing so was the larger investigation into Russian interference out of which the Flynn investigation had itself been born.  If Trump's motives were pure or his intent benign, there would have been no reason to talk to Comey privately, and certainly no reason to make continuing efforts to insure that no one else heard what he, Trump, was saying.

  

Sessions, Kushner and Priebus were more than worried about what was going on behind closed doors, and they were right to be worried.  

Because . . .

Trump was committing a crime.

And knew it.

At the Senate hearing, Idaho's Sen. Risch played with the idea that Trump's "hope" did not amount to a directive but was merely a wish, and a number of Republicans have fallen back on the notion that Trump is new to Washington and just doesn't know what you can or cannot do.  The difficulty with these defenses is that they ignore Trump's own conduct and defy common sense.  

Everyone knows that Trump thinks the Russian investigation is, as he has put it, a "witch hunt," and that he also thinks Mike Flynn "did nothing wrong."  He's already told the world all of this on more than one occasion and has made it more than clear that he "hopes" all the investigations will go away. So, there was no reason for him to empty the Oval Office of witnesses if all he had decided to do was tell Comey the same thing.  

To that same point, there also was no reason for Trump to call Comey on March 30, in yet another one on one,  to find out if there was anything Comey could do to "lift the cloud" that Trump thought the Russian investigation was casting over his Administration.  Though that call ultimately led to Trump merely asking Comey to disclose that he, Trump, was not under investigation, Trump could have asked Sessions to tell Comey to disclose that "fact" and did not need to get in Comey's grill to do so.  In fact, as Comey pointed out to Trump in yet another call on April 11, going through Sessions would have been the right way to do it.

Why didn't Trump do it the right way?  Why was he always engaging Comey one on one?

The answer is simple.

Trump was trying to leverage Comey into doing what he, Trump, wanted done.  What he wanted was crystal clear -- loyalty on the one hand and an end to the Flynn (and probably the overall Russian) investigation on the other.  

And he was basically holding Comey's job over Comey's head as part of that shake down.

On the day of Comey's testimony, Trump's private attorney denied that Trump had asked Comey to end any investigation, and the day after the testimony Trump did so himself.  Trump also denied that he ever asked Comey for his "loyalty" or "allegiance."  In the past, Trump has hinted at the possibility that his conversations with Comey were taped but has refused to actually confirm this as a fact. For his part, Comey hopes there are tapes and made it clear to the Senate that if they exist, he has no problem with their immediate release.

The likelihood, of course, is that there are no tapes.  Trump is an inveterate liar and bully, and Comey is a Boy Scout.  Tapes would end the controversy over who said what to whom in a heart beat . . .

And in Comey's favor.

So the only way Trump can survive this is by claiming Comey's testimony is false, attacking the ex-FBI Director relentlessly, and then relying on the GOP cowards in Congress to thwart any effort at impeachment.  

Reliance on the GOP may well work.  They are cowards.  In the past, they have forgiven or looked past all of Trump's sins.  And they are now in the process of twisting themselves into pretzels as they deconstruct the word "hope" in an effort to separate the message from the messenger.

But attacking Comey will not work.

The Boy Scout beat the bully in Mr. Smith because one of the bad guys grew a conscience once the exhausted Senator fainted from his filibuster.  

The Boy Scout will beat the bully here because, in the "he said, he said" now unfolding . . . 

America has already decided who to believe.

And it ain't Trump.

AMERICA GOES SMALL

AMERICA GOES SMALL

On December 12, 2015, the Paris Accord was adopted at the 21st session of the Conference of Parties to the United Nations Framework Convention on Climate Change.

At the time, the agreement was considered a world-wide political and diplomatic breakthrough. Phoenix-like, it rose from the ashes of the 1997 Kyoto Protocol, whose mandated reductions in carbon emissions resulted in the rejection of  that Protocol by the second Bush Administration in 2001, and then resurrected the possibility of world-wide consensus on both the issue of climate change and a modest framework to (possibly) reduce it.

The operative words here are "modest" and "possibly."  

The Accord was not binding in any legal sense.  It did not require any nation to meet any specific reduction in carbon emissions.  And  the Accord's goal of  limiting global warming to less than 1.5C compared to pre-industrial era levels was just that -- a goal.  

But, as commentators pointed out at the time, that the Accord was ultimately aspirational did not make it meaningless.  

The hope was that nations, in agreeing to limit their specific individual emissions so as to meet their respective portions of the overall needed reduction, would create a universe in which the cost of non-compliance, measured both economically and morally, would itself engender adherence.  

For a number of reasons,  moreover, the hope was entirely rational.   

First, the scientific consensus on global warming as an established fact was itself irrefutable.   Climate deniers had been reduced to the category of cranks and charlatans, the 21st century's version of a flat earth society that continued to deny the truths of Copernicus. 

Second, the costs of global warming were being calculated and published.  The now famous Stern Review of the Economics of Climate Change reported in 2006 that unabated global warming would cause 5-20% annual  reductions in global gross domestic product for the rest of the century, and a 2015 study from Tufts University projected a loss to America alone in the range of 1-3%, along with a global loss of 10%. 

Third, the benefits themselves were large, both in terms of the improved health that would come from less pollution and in terms of the economic growth from green technologies and clean energy.

Finally, the Accord mandated transparency.  Nations could choose their individual (and different) paths to carbon reduction, allowing, for example,  China to pursue clean coal while Norway embraced hydroelectric and the United States developed plains states wind farms.  But they all had to announce their results, and those that failed would presumably suffer the shame of a global citizenry intent on insuring that our world not be destroyed in a sea of melting ice.

Yesterday, Donald Trump ended America's participation in the Paris Accord.  

We now join Syria and Nicaragua as the only two countries that are not a part of the deal.  

The reaction from around the world was swift and universally negative.  The European Union issued a statement deriding Trump's decision as "a sad day for the global community."  The UN Secretary-General called it "a major disappointment."  Leaders from Japan, China, Russia and Europe reiterated their own nation's commitment to the agreement, with France's President Macron, speaking in English, noting -- and not too subtly -- that the Accord was designed to "make the planet great again."

Trump, however, is not interested in the planet.

His speech announcing the departure was his usual bromide of exaggerated claims and rhetorical nonsense.  He trotted out statistics from National Economic Research Associates (NERA) that more than 2 million American jobs would be lost on account of the Accord, with compliance being especially damaging in heavy manufacturing sectors (including iron, steel and coal).   He claimed the Accord had no teeth and would effectively result in American compliance while India and China failed to live up to their commitments.  

The NERA study, however, had already been debunked.  It overstates job loss and doesn't remotely account for expected gains in the clean energy sector.   For that reason, it had been roundly dismissed by the business community, large sectors of which are committed to the Accord.  In fact, over thirty companies -- including notables like GE, Dow Chemical, Citigroup and B of A --  re-stated their commitments yesterday.  As one commentator noted, "This is not a tree hugger group."

The cheating claim is particularly silly.  On the one hand, it was the United States, in the presence of the Obama Administration reacting to pressure from Republicans, which refused to allow the Accord to mandate compliance or impose penalties if nations did not meet their obligations.  The Chinese actually wanted a legally binding deal and didn't get one.  For Trump to now claim that others will cheat while we blindly adhere ignores this history.  On  the other, the whole point of the Accord was to embrace a new form of diplomacy where decentralized compliance and implementation was enforced with transparency and moral suasion.  

It wasn't perfect.

But it wasn't a "nothin' burger" either.  

Nor was there an alternative.  

Trump thinks he can negotiate a new deal but the evidence for that is thin to non-existent.  In his comments yesterday, France's Macron made clear that "there is no Plan B."  And the other signatories have decided to go on without us, willing to lead as we fall behind, but hoping (with some basis in reality) that states, localities and businesses here in the US take up the baton that Trump has just thrown away.

At the end of his speech, Trump asked, "At what point does America get demeaned. At what point do they start laughing at us. We want fair treatment . . . for our taxpayers."  He then finished with a flourish, saying "I was elected to represent the citizens of Pittsburgh, not Paris."

I don't know when the rest of the world started laughing.  With Trump, there has been no shortage of opportunities.  But Hillary supported the Paris Accord and Pittsburgh voted overwhelmingly for her last November.  

So when he ended there . . .

That's when I started.