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.