Not Quite Watergate

The Watergate hearings were a long time ago. They were great television. Everyone watched. Sam Ervin was charming – just a simple country lawyer, but deadly. Fred Thompson got to ask “what did the president know and when did he know it?” Then he went on to star in a few Tom Clancy movies and then on television, in Law & Order of course. Alexander Butterfield dropped a bomb – there was a White House taping system and there were tapes. There really was a smoking gun in there – Nixon working out a cover-up. There was nowhere for Nixon to hide. The Supreme Court later forced him to hand those over. The decision was unanimous. Firing Archibald Cox hadn’t helped. They had Nixon on obstruction of justice of the nastiest of kinds – but the star witness in the hearings was John Dean, the White House attorney. Dean knew everything. Dean revealed everything, because he wasn’t going to take the fall for Nixon. He too had participated in obstruction of justice, at the edges. He’d cop to that – he spent a few months in prison – but he knew he wasn’t the problem, and then everyone knew he wasn’t the problem. Nixon was the problem. The House introduced articles of impeachment. There would be a trial in the Senate and Nixon would be convicted – there were more than enough votes for that. Barry Goldwater and the rest of the Republican leadership walked over to the White House and told Nixon it was over. Nixon resigned.

That will never happen again – maybe. Presidents really shouldn’t fire the guy investigating what they’ve been up to. That looks bad. Trump firing James Comey, the head of the FBI, looked bad. Comey was heading the investigation into what the Russians had been doing, messing with our election, the one Trump won, and possible coordination between the Trump campaign and the Russians. Much of this centered on Michael Flynn, Trump’s oddball national security advisor, who lasted all of twenty-three days. Flynn later registered as a paid agent of the Turkish government – retroactively – and he had taken a lot of money from the Russians, and hadn’t mentioned that. There was no smoking gun, but this had the feel of Watergate. Presidents really shouldn’t fire the guy investigating these sorts of things.

Is this Watergate again? James Clapper, the director of national intelligence until early this year, who had already fired Michael Flynn in the last months of the Obama administration, thinks this is worse than Watergate:

“Watergate pales really, in my view, compared to what we’re confronting now,” said Clapper, a former lieutenant general with a long career in intelligence under Republican and Democratic presidents alike. He added: “I am very concerned about the assault on our institutions coming from both an external source – read Russia – and an internal source – the president himself.”

As Clapper suggested, Trump has been undermining the institutions and mores that undergird our political process; whether or not his conduct was felonious, it has been profoundly subversive.

Nixon was covering up a second-rate break-in. Trump seems to be covering up far more, and that called for a hearing. That called for another John Dean – who is still around, on CNN and MSNBC discussing the parallels to Watergate this time around. That’s useful, but Dean often says the parallels are inexact. That was then. This is now. There is only James Comey, the fired head of the FBI – but he will do. There was a hearing. On national television he called Donald Trump a liar:

Former FBI director James B. Comey on Thursday used a dramatic appearance before a national audience to sharply criticize the character of the president, accusing Trump of firing him over the Russia investigation and then misleading the public about the reasons for the dismissal.

Trump and his team, Comey said, told “lies, plain and simple,” about him and the FBI in an effort to cover up the real reason for his sudden sacking last month. Comey said that after one particularly odd private meeting with the president, he feared Trump “might lie” about the conversation, prompting him to begin taking careful notes after each encounter.

Comey revealed that after he was fired, he leaked notes on his interactions with Trump to the media, hoping that sharing the information would prompt the appointment of a special counsel to investigate the administration over possible links to Russia.

Richard Nixon shouldn’t have messed with John Dean, and Donald Trump shouldn’t have messed with James Comey, and it was great television:

The hearing, broadcast nationally by at least twelve television networks, was held in a cavernous space in the Hart Senate Office Building with hundreds of seats to accommodate the intense interest. Several lawmakers who do not serve on the committee took seats in the audience, a rarity on Capitol Hill. Most were Democrats eager to hear Comey’s claims of presidential impropriety.

Inside the hearing room, people audibly groaned or gasped when Comey said he had “no doubt” that Russian government officials were behind the hacking of the Democratic National Committee last year.

Trump didn’t tweet as this was happening. He didn’t dare. No one was asking him what he thought. No one cared, so there was only this:

“I can definitely say the president is not a liar,” said White House deputy press secretary Sarah Huckabee Sanders after the hearing. “I think it’s frankly insulting that that question would be asked.”

That’s not an argument about anything, one way or the other, but this is:

Over nearly three hours of testimony in a packed hearing room, Comey grimly recounted the events that he said showed the president sought to redirect the Russia probe away from his former national security adviser, Michael Flynn, and get the FBI to publicly distance the president himself from the probe.

As Comey spoke, most senators on the dais sat spellbound. Republican members of the Senate Intelligence Committee sought to soften Comey’s version of events, noting that Trump never ordered him to drop the Flynn investigation but merely “hoped” he would. Democrats tried to build a case that Trump had obstructed justice by firing Comey.

There’s an interesting argument there. A robber grabs you and pulls you into an alley. It’s just the two of you. He pulls a gun as says he “hopes” you give him all your money, but he doesn’t “demand” your money. Is that a robbery? Trump “hoped” for “loyalty” and “hoped” Comey would drop the Flynn investigation. Trump “demanded” nothing. Trump implied he could fire Comey. That’s the gun. Was this obstruction of justice? That was argued at the hearing. That was argued on Fox News. That will be argued for weeks, or months, but Comey sidestepped that argument:

Comey declined to say whether he thought the president had obstructed justice, saying that was a determination to be made by Special Counsel Robert S. Mueller III.

Josh Marshall thinks Comey may have been saying this:

I’m not going to say he robbed the bank. I’m going to say what I saw, which is that he came into the bank with the gun, demanded the money and then left in the getaway car. But it’s not my place to draw any conclusions. But if my warning about what I’m not going to say gives you a conceptual model through to understand what I will say, I guess that’s not the end of the world.

Trump shouldn’t have messed with James Comey – he’s smarter than Trump – but Nixon had the same problem with John Dean. All Trump has is his personal lawyer:

In response to Comey’s testimony, Trump’s personal lawyer, Marc Kasowitz, released a statement saying the president “never, in form or substance, directed or suggested that Mr. Comey stop investigating anyone.”

Kasowitz also accused Comey of trying to “undermine this administration with selective and illegal leaks of classified information and privileged communications.”

Josh Marshall is not impressed:

This sounds like someone trying to make an executive privilege argument without knowing how executive privilege works. Or perhaps it sounds like someone who knows how executive privilege works and is trying to pretend it applies here. There are two ways to interpret Comey’s actions – one that he wanted to retaliate for being fired or two that he believed the DOJ leadership was compromised and sought to release information that would lead to the appointment of a special counsel. (I see no real reason to choose between the explanations.)

I have no doubt that Comey’s political enemies will use this admission to attack his character. But as a legal matter, this isn’t how it works. Comey can tell people what he wants. From the beginning, Trump and his team have conflated leaks which people have every legal right to do (they can also be fired for it) with classified leaks, which are illegal. Trump and Kasowitz come out of a world of pervasive non-disclosure agreements and attorney-client privilege and want to think that people who work in the executive branch have that kind of obligation to the President Trump. They don’t.

This kind of stuff works if you’re trying to keep the money of the people you fleeced at Trump University, or to intimidate women alleging assault. But this kind of lawyering can get you into a lot of trouble in this kind of investigation.

And meanwhile, back at the hearing:

Comey began his testimony by saying he became “confused and increasingly concerned” about the public explanations by White House officials for his firing on May 9, particularly after the president said in an interview that he was thinking about the Russia investigation when he decided to fire him.

The former director wasted little time repudiating White House statements that he was fired in part because of low morale among FBI employees who supposedly had soured on his leadership. Comey said the administration “chose to defame me and more importantly the FBI.”

“Those were lies, plain and simple,” Comey said. “And I’m so sorry that the FBI workforce had to hear them, and I’m so sorry the American people were told them.”

There he goes again, but for a reason:

Comey’s account made clear that his relationship with Trump was fraught from their very first meeting, which occurred before the inauguration, when he told the president-elect that a dossier of unsubstantiated allegations against him had been circulating around Washington.

“I didn’t want him thinking that I was briefing him on this to sort of hang it over him in some way,” Comey said. “He needed to know this was being said, but I was very keen to not leave him with the impression that the bureau was trying to do something to him.”

Comey acknowledged, as the president has claimed, that he repeatedly told Trump that he was not personally under investigation. But he also said that in private meetings and one-on-one phone calls, the president repeatedly asked him to say publicly that he was not personally under investigation – something Comey did not want to do.

John Dean wasn’t going to take the fall for Nixon and James Comey wasn’t going to shill for Donald Trump, doing Trump’s PR work for him – and if there are tapes, as Trump warned Comey there might be, Comey said that would be wonderful. Trump really shouldn’t tweet so much:

When the hearing was over, Sens. Richard Burr (R-N.C.) and Mark R. Warner (D-Va.), the two senior members of the committee, walked out to greet reporters camped in the hallway outside.

“This is nowhere near the end of the investigation,” Burr said.

Nixon knew that after the first Watergate hearings, and now Trump knows that too, and Josh Marshall adds this:

From close to the beginning, Comey believed President Trump was untrustworthy, a bad actor. True or not, that was there in really everything he said, every assumption, every decision he describes making. One can certainly interpret his remarks to mean that he thought Trump was a liar. “I was honestly concerned that he might lie about the nature of our meeting, so I thought it important to document.” This comes out just in the fullness of everything Comey said: the immediate decision to start keeping detailed notes, the entirety of the way he described the President, his descriptions of his own reactions in the moment when dealing with the President. They all paint a picture of Trump as dishonest, scheming and predatory. That is Comey’s take and he went out of his way to make that clear.

But there’s more:

Also highly surprising was that brief aside that suggested that there was some other problem we don’t know about with Attorney General Sessions and Russia. Here’s the quotation: “We also were aware of facts that I can’t discuss in an open setting that would make his continued engagement in a Russia-related investigation problematic.”

I thought about this. I think it’s possible that this is a reference to the then-unknown but subsequently reported additional meetings with Russian Ambassador Kislyak. In that case, he’s only referring to things we already know or know in their outlines from published reports. But that’s a strained interpretation that is hard to square with the context. It sounds like there’s something else that we don’t know about. That’s another big deal.

This really is nowhere near the end of the investigation, but things have fallen into place:

What I think we have here is some major wrongdoing, possibly of various different sorts. That is matched by a President who acts as though the government is something like his own possession, his own company. He acts like it. His lawyer talks like it. Whatever the nature of the original bad acts – which I am assuming occurred based on a lot of information but which we do not know with certainty – the President has managed to stumble into a massive scandal with almost unbelievable speed. As was really clear throughout the campaign, he is predatory, bad-acting and impulsive and even self-destructive in a way that compounds and in some respects makes less effective the underlying malignant behavior. He and his lawyer are in way over their heads and will cause untold damage before this is done, however it ends.

This puts Republicans in a bind, but as Mike DeBonis reports, they may have an answer for that:

As former FBI director James B. Comey held the political world in thrall Thursday from inside a packed Senate hearing room, House Speaker Paul D. Ryan walked into an unusually empty press briefing across the Capitol.

Before Comey’s testimony about his private interactions with President Trump had even concluded, Ryan joined an effort already underway among GOP lawmakers to place it in the best possible light for Trump.

“Of course there needs to be a degree of independence” between federal law enforcement and the White House, Ryan said. But he added, “The president’s new at this. He’s new to government, and so he probably wasn’t steeped in the long-running protocols that establish the relationships between [the Justice Department], FBI and White House. He’s just new to this.”

Ryan later made clear that he was “not saying it’s an acceptable excuse” and that his remark was “just my observation.” But he was one of many GOP lawmakers willing to minimize Trump’s alleged meddling and demands for loyalty as the fumbling of a political tyro – or the behavior of a real estate mogul accustomed to having his orders followed.

That might work:

To substantiate an obstruction of justice case under criminal law, a prosecutor has to prove a person acted corruptly. If Trump was merely acting foolishly, he would be legally okay.

“It’s just another way of saying that maybe he had innocent intent, just didn’t appreciate how inappropriate or wrongful it would appear to people who have been around law enforcement,” said Kelly Kramer, a white-collar criminal defense attorney at the Mayer Brown law firm.

That might not work:

On Capitol Hill, at least one lawmaker said ignorance of the law and Washington norms are not excuses.

“That’s why you have a chief of staff. That’s why you have legal counsel,” said Rep. Mark Sanford (R-S.C.), who endured a scandal over an extramarital affair when he was governor of his state in 2009. “The idea of ‘I’m new’ probably doesn’t pass muster in the corporate world, the nonprofit world, much less the body politic.”

No one’s going to cut Donald Trump some slack because he doesn’t know anything about anything, not even Republicans. They might have to impeach him themselves, but Jonathan Chait argues that no one should get their hopes up:

Since the beginning of Donald Trump’s presidency, or even before, Democrats have been waiting for the moment when the Republican Party’s indulgence would snap. In every incremental advance of the Russia story, many hear the ticking hands of an “impeachment clock.” But there is no clock, and there will probably be no impeachment, at least not based on the field of Trumpian misdeeds currently at play. To imagine Republicans might turn on Trump over the Russia scandal to the point of deposing him from office is to misunderstand how they have been thinking about Trump and the presidency all along.

The metaphor of the ticking impeachment clock presupposes some relationship between the evidence that comes to light and the behavior of Congress. There is little evidence that the two are linked. Or, at least, the link is so weak that there is hardly enough room for additional evidence to produce the necessary response in Congress.

This isn’t Watergate:

Trump repeatedly demanded loyalty from the FBI director, asked that he halt his investigation into the Russia scandal, instructed other intelligence officials to pressure him to end the investigation – the precise action that forced Richard Nixon to resign – and then fired Comey for refusing to do so. Many of his associates have been caught lying about their meetings and financial ties with Russia and what they said at those meetings. His son-in-law and close adviser tried to establish a secret line of communication to Russia. All of this took place after Trump appeared on camera during the campaign asking Russia to hack his opponent’s emails. (This is not even to mention the ongoing profiteering from his office that, in a normal presidency, would be an all-consuming mega-scandal in its own right.)

The vast majority of the Republican Party has absorbed these developments, a numbing procession of leaks and shocking news developments, with no diminished confidence in Trump whatsoever.

Democrats will have to deal with that:

While it may seem puzzling to liberals, this kind of behavior is consistent with the method of the conservative movement. The conservative movement takeover of the Republican Party began in the 1960s and took decades to complete. Conservatives still have not lost their sense of being an insurgent movement that might at any moment be betrayed by the party Establishment. Conservatives think of their role as quasi-independent, but they also imagine it as focusing exclusively on enforcing fealty to their doctrine by politicians who might otherwise be inclined to wander. The scenario they are built to fight against is the Republican president who colludes with Democrats, not one who colludes with foreign dictators. If the president is fighting against the opposition party, they assume he is acting correctly.

And he is one of them:

Many conservatives opposed Trump during the primaries because they suspected, with good reason, that his conservatism was shallow or insincere. They worried that once elected Trump would abandon their priorities and pursue the most expedient course.

But Trump has not done that at all. The policies or talking points Trump has abandoned are the centrist ones: He would protect Medicaid from cuts, give everybody terrific coverage, hammer the big banks, spend a trillion dollars on infrastructure, and cut deals with both parties. This week, Trump formally abandoned the last possible area of ideological compromise in infrastructure, “clarifying” that his plan relies on private industry, states, or cities ponying up the money. Trump’s budget actually cuts federal investments in infrastructure. He has positioned himself to the right of even House Republicans on domestic spending, and continues to push for their grossly unpopular plan to cut a trillion dollars from Obamacare. “The Never-Trump conservative argument that Trump is not a conservative – one that I, too, made repeatedly during the Republican primaries – is not only no longer relevant, it is no longer true,” points out the popular conservative talk-show host Dennis Prager.

It comes down to this:

Trump is faithfully supporting the conservative agenda, so most conservatives faithfully support him. Their concerns are pragmatic ones about his effectiveness on behalf of their common agenda, rather than moral objections to the legitimacy and propriety of his actions. Trump may have committed impeachable offenses, but the impeachment clock has not even begun to move.

Martin Longman disagrees:

Trump could not convince the Director of National Intelligence Dan Coats to intervene with Comey despite having nominated Coats and seen him confirmed just days earlier. He couldn’t prevent his Attorney General Jeff Sessions from recusing himself from the Russia investigation and now Sessions is threatening to resign rather than continue to serve at the displeasure of the president. He put Rod Rosenstein in place at the Justice Department to kill the Russia investigation in Sessions’ stead, and Rosenstein promptly named Bob Mueller as a special counsel to broaden the investigation. He put Mike Pompeo in to head the CIA, but the CIA seems as committed to Trump’s political demise as ever.

It needs to be remembered that the FBI has been running a counterintelligence investigation against Trump and his associates for about a year now. That’s not a good place to be. There are grand juries now looking into the activities of Michael Flynn and other associates of the president. Even if the congressional Republicans wanted to sweep all of this under the rug, they don’t have the unilateral ability to do that.

And there is the national security establishment:

Trump started out by going to the CIA and disrespecting their dead. He then ignored the Justice Department’s warnings that his National Security Advisor was compromised by the Russians. He tried to compromise the integrity of the FBI director and then fired him. He tried to compromise the integrity of the head of the National Security Agency and his Director of National Intelligence. He infuriated the Israelis by giving sensitive information to the Russians in the Oval Office. He refused to commit to coming to our NATO allies’ defense if they are attacked. Most recently, he put our air base in Qatar at risk by siding against them in their dispute with other Arab nations.

This is really just a short list to get the point across. I could go on at great length about his refusal to staff up the State Department or all the messes he’s created for them to clean up by insulting foreign leaders. I could talk about his horrible security as he continues to use an insecure Android phone and conducts sensitive foreign policy in public areas of Mar-A-Lago. Without any real effort to be thorough here, I just want to convey how unsatisfactory he’s been as president from the point of view of anyone who works on national security, defense or intelligence matters. Even if he hadn’t compared these folks to Nazis, they’d be scared and angry.

This is the Nixon scenario:

To predict that the Republicans won’t impeach Trump is to assume that they will make apologies for anything they find, no matter how outrageous or indefensible. And I won’t dispute that they are powerfully inclined in that direction for all the reasons that Chait mentions, and more.

But we should consider a few more things. Almost no members of Congress endorsed Trump in the primaries. The Speaker of the House effectively disowned Trump after the Access Hollywood tape came out in October. They tolerate him much more than they support him. And they tolerate him because they want things from him. They already got a Supreme Court Justice. They want tax cuts, too. They want to finish off the Affordable Care Act. Individual members have their own to-do lists. The problem here is that Trump is failing to deliver in rather spectacular fashion. Everything is piling up in Congress. There’s no budget, no appropriations, no tax reform plan, no infrastructure plan, no workable health care plan, and a looming debt ceiling fiasco. Congressional Republicans are publicly pessimistic about their chances of achieving anything this year and are vocal about the prospect of a looming fiscal and budgetary disaster in September. Things aren’t going to get better. They will assuredly get worse as looming catastrophes became actual real-time debacles. And that’s the context in which the Trump-Russia investigation will unfold.

In truth, Republicans have very little use for Trump at this point.

We’ve been here before. As with Nixon, so with Trump:

I expect that Trump will make things worse for himself every single day and the drumbeat of leaks will be amplified by televised testimony and grand jury indictments and people copping pleas with Bob Mueller. And all of it will happen in the context of a Republican Party that can’t budget or appropriate or pay our bills on time or pass bills even when they control every lever of power in Washington.

The forces that want Trump gone are simply far more powerful than the forces that want him to stay, and the balance will keep moving away from Trump until his thin line of defense breaks. He could survive for quite some time yet, but his own glaring flaws make it a decent bet that he won’t.

And at that point a small group of key Republicans, perhaps even led by Paul Ryan, will stroll over to the White House and tell Trump it’s over – maybe. This isn’t quite Watergate – yet. Meanwhile, it is great television.