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Commentary | Tweets Have Consequences

To the people of these United States and in the interest of our republic,

It has been a roller coaster couple of days and, believe it or not, the sum total of what we’re seeing is little more then a “he said, she said” merry-go-around with multiple sides seeking to force-shove facts into their chosen narratives and few people taking a step back to try and ascertain reality.

So, let’s take a look at what we know.

(note: the following fits neither the narrative that President Trump is an illegitimate Putin puppet, nor that he is a political genius under attack by fake news and left-wing hoaxers.  I have attempted to sort through this mess with intellectual honesty and have gone where the facts take me, regardless of my political or philosophical predispositions.  I simply ask that if you choose to continue reading my analysis, you read it to its completion before offering a verdict of my efforts)

  1. Russia sought to influence our election, mainly by pushing fake news crafted to aid Donald Trump and by obtaining and releasing information damaging to Hillary Clinton.  Claiming anything beyond these two known facts is speculative and in some cases pushing into the realm of conspiracy.
  2. Despite Russia’s attempts to influence American voters, they did not taint the actual election process.  The result of the 2016 election is sound and Donald Trump is our legitimate president.
  3. There has been an ongoing investigation into Russia’s attempts to influence American voters by several entities, including the FBI and both houses of congress.  It should be noted that the FBI’s investigation has been a counterintelligence investigation and reports that the investigation may now be criminal are unconfirmed.
  4. The FBI investigation has revealed that several people connected to Trump have had connections to Russia they failed to disclose or were less then truthful in their disclosure.  The consequences for these discoveries have been political (Flynn resigning, Sessions recusal) or personally embarrassing (Kushner and Manafort), but as of yet there have been no criminal charges and we are not aware of any ongoing criminal investigations into any of them. While circumstances have revealed that some of these associates may have conducted themselves in a criminal manner in relation to Russia, they were cursory actions and do not appear connected to their positions in Trump’s campaign.
  5. We have heard now from multiple sources, including President Trump himself, that he has grown increasingly frustrated with the Russia situation and that he feels it is hampering his ability to effectively govern.  President Trump believes the Russia situation is a “fabrication” and a “hoax” created by Democrats to delegitimize his presidency and explain away their failure to beat him in the election.
  6. As of James Comey’s last day as FBI director, President Trump was not under FBI investigation.
  7. Memos purportedly written by James Comey at the time conversations with President Trump occurred have been corroborated by his sworn testimony.  President Trump denies using the language James Comey alleges, though some of the information coming from White House surrogates are creating confusion as to what the Trump administration is alleging actually occurred.  It should be noted that because the memos were written contemporaneously (ie as the conversations allegedly took place and before Comey was fired) it does give more weight to Comey’s version of events.
  8. We first learned about President Trump allegedly asking James Comey for his loyalty from a New York Times story published May 11, two days after Comey was fired.  This story makes no mention of memos and is based on verbal recollections of the event from at least two unnamed sources.  There has been some confusion on twitter and other social media, especially among die hard Trump supporters, as to the order of events on those few days, they falsely point to this story to demonstrate that James Comey lied under oath when he said he didn’t have his memos given to the media until after Donald Trump’s tweet about tapes (see point 10).
  9. Donald Trump’s tweet on May 12 alluding to the possibility of the existence of tapes of conversations between himself and James Comey may be the most costly tweet of Donald Trump’s political career.  It not only placed the shadow of Watergate over the entire affair, but according to James Comey’s testimony it was this tweet that instigated his decision to reveal the existence of his memos and have them shared with the New York Times.
  10. The New York Times story revealing the existence of James Comey’s memos was published on May 16, four days after Trump tweeted about tapes and five days after the New York Times story about Trump requesting Comey’s loyalty (these stories are being conflated and creating confusion as to the proper timeline of events).  James Comey’s testimony that he revealed the existence of his memos in response to Trump’s tweet about tapes is plausible based on the actual timeline of events.
  11. Donald Trump has denied both asking James Comey for his loyalty and requesting an end to the Flynn investigation, stating he would be willing to deny using the language James Comey alleges under oath.

In summary, we can ascertain the actual reality we are facing at this time:

It is now verifiable that Donald Trump has never been under investigation for collusion with Russia and it seems very clear that if evidence of his personal collusion has yet to surface in nearly a year of investigation it is because there is none and Donald Trump is actually innocent of any collusion.

However, the President’s obsession with ending the Russia story has led him to perform actions which are inappropriate at best and do provide a basis of *reasonable suspicion for obstruction of justice.  While Comey’s memos and testimony are credible evidence, they are not yet verifiably true and the White House and its surrogates are mostly denying what Comey has said.  We do know, however, that the President has removed James Comey from his position and has stated (albeit not while under oath) that the manner in which Comey conducted the Russia investigation was his main frustration that led to removal.  Each action President Trump took would only be either inappropriate or negligent if taken separately, but as a running history of connected events (A request to drop an investigation, a request of personal loyalty, and a removal from his post for displeasure with conduct relating to an investigation politically damaging to the President) does provide a basis for reasonable suspicion of obstruction of justice.

But, probable cause for obstruction of justice would require the President’s clear motive to obstruct justice, and it is likely the President was simply operating as he is used to operating, that is as the head of a business with a reasonable expectation of loyalty from his employees and the ability to direct the actions of his employees.  While it would be embarrassing for the President and his staff, it would be easy and believable to claim he didn’t understand how his requests and language could be construed by James Comey.  Generally speaking, ignorance of the law is not a legitimate defense but in the case of obstruction of justice the clear intention to obstruct is necessary for conviction.  This means that, while the President may actually now be under investigation by Robert Mueller (or may shortly be) for obstruction of justice, it is highly doubtful that President Trump will face any criminal charges from such an investigation.

It is my opinion that if the President had admitted to saying the things that Comey alleges, this episode would have proven to be nothing but a politically damaging and distracting episode, but the President’s flat-out denial and statement that he would be willing to contradict James Comey’s testimony under oath may create a third act in this play.  If the President were to indeed deny asking Comey for loyalty or asking him to drop the Flynn investigation while under oath, it creates a dilemma where either the President of the United States or a former director of the FBI will have lied under oath, meaning one of them, at that point, would be guilty of perjury.  Perjury is currently punishable by a fine and up to five years in prison, and there is established precedent that Congress is willing to consider perjury as a high crime and misdemeanor worthy of impeachment (Indeed, it was this crime that led to the impeachment of Bill Clinton).

In conclusion, if President Trump is telling the truth that James Comey is fabricating these alleged conversations then the former FBI director is guilty of perjury and the President has not colluded with Russia, has not sought to obstruct justice, and does not face a serious possibility of impeachment.  But, if James Comey is telling the truth we have a situation where Donald Trump was never under investigation for collusion but he grew impatient with the political fallout of the Russia investigation and created a sticky situation that could be construed as obstruction of justice by asking for the personal loyalty of the man conducting the investigations and requesting an investigation into an associate be dropped, compounding the dangers of the circumstances by summarily firing James Comey and, in an attempt to threaten the fired director, warned of possible tapes (which we still don’t know actually exist) which prompted James Comey to reveal the existence of his memos.  And, in an attempt to hit back at James Comey, Donald Trump called him liar and said he would say as much under oath, a scenario that Donald Trump’s political opponents will now only be too happy to call him out on.  Should Donald Trump actually testify under oath and should James Comey’s version of events be proven true, Robert Mueller would have no choice but to conclude that the President had committed perjury.  And, while Bill Clinton survived impeachment for such an offense it appears unlikely Republican’s in Congress would remain steadfast in the President’s defense as the Democrats did in Clinton’s.

The short of it is, tweets have consequences…as do hitting back at political opponents off-the-cuff with little consideration to what you’re saying or promising may eventually mean.  There is a definite possibility that Trump’s erratic off-the-cuff style may have turned something that was nothing, into something that doesn’t look good, into something that may actually become criminal.

Some advice for the President?

It’s time to end the campaign behavior, it’s time to listen to the smart men and women around you, and it’s time to put twitter down and stick to prepared statements.  A man who has dug himself into a hole may argue he didn’t need a ladder to get to where he is, but he sure as hell needs a ladder to get back out.

-The Millennial Federalist

*It should be noted that reasonable suspicion, probable cause, and beyond a reasonable doubt are very different requirements of evidence under law.  The decision in Illinois vs. Gates (1983) allows for hearsay to be used as a basis of evidence for reasonable suspicion and can trigger investigation.  Comey’s contemporaneous memos combined with his corroborated testimony under oath more then meet the requirements of reasonable suspicion but much more evidence (such as motive) would be needed to meet the higher requirements of probable cause (required to trigger charges) or beyond a reasonable doubt (required for conviction).

Update: According to the Washington Post, the President is now under criminal investigation for Obstruction of Justice, an eventuality this article predicted.  This is a major development, as the Supreme Court has ruled in the past that executive privilege has no authority to halt testimony in a criminal investigation.

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