• What matters in Comey’s Testimony . . . and what doesn’t

    What was in the brew Comey stirred up and served to the world on Thursday?

    There was some red meat for both Democrats and Republicans. So you can expect them to emphasize different things.

    • In the media world, that means ABC, NBC, CBS, PBS, the New York Times, the Washington Post, Boston Globe, Los Angeles Times and others will see it one way.
    • Fox News commentators will see it another. Fox News’ flagship program, Special Report with Bret Baier, plays it straight. The other shows feature a lot more conservative, pro-Trump commentary.

    The Washington Post thinks the big news is Comey’s statement that “Trump lied” about the reasons for Comey’s firing since he, Comey was doing a great job and the FBI was not demoralized, as the president said. That was Trump’s lie, said Comey.

    That is a headline grabbing statement. But it is not what’s important.

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    Remember, there are ultimately two big legal issues:

    1. Did the Trump campaign collude with the Russians to throw the 2016 election?
    2. Did Pres. Trump obstruct justice in the FBI’s investigation of the Russian matter, Michael Flynn, or any other politically-sensitive issue

    There is one big political issue: Can the Democrats damage the Trump Administration? 

    • To do that, they need to find enough material to keep Trump on the defensive.
    • While Trump is on the defensive, he’s have a harder time moving appointments and legislative agenda (a gain for the Democrats)

    A weakened and vulnerable President will increase the Democrats’ chances of winning the House in 2018.

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    Turning to Comey’s testimony. . . he

     Confirmed that Trump has never been the subject of an FBI investigation and said he told that to Trump several times (as Trump claimed)

    Effectively stirred up the Russia issue again without offering anything substantive

    • Comey simply said what he now thinks 

    “It’s my judgment that I was fired because of the Russia investigation,” Comey said. “I was fired, in some way, to change — or the endeavor was to change the way the Russia investigation was being conducted.”

    Comey’s testimony threatened to deepen the legal and political crisis engulfing the White House, which has struggled to respond to growing questions about the president’s conduct. -Washington Post (link here)

     Said Trump did not try to slow or stop the FBI’s investigation of Russia’s role in the 2016 US election

    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.

    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.” –Washington Post

    • Comey offered no evidence of obstruction, which he would have been legally required to report contemporaneously.
    • He tried to square the circle by saying he now thought it might be obstruction
    • And, by raising the issue’s profile, he made set it high on Mueller’s agenda (and gave the Democrats talking points)

    ◆ Reaffirmed the leaks of “people familiar with Comey’s thinking” that Trump had privately told him he “hoped” Comey would be able to conclude the Flynn investigation and clear Flynn. But he did not order him to end the investigation.

    • At the time, he did not think that was obstruction, did not tell the President he was uncomfortable or that the conversation should end, but he did feel some pressure

    Confirmed that, in one disputed conversation, Trump asked AG Sessions to leave the room. 

    • Trump’s desire for secrecy supports those who think he was doing something improper. (Note, however, that improper is not the same as illegal.)

    ◆ But–and this is crucial–Comey changed his mind after being fired: now Trump was “directing” him to end the investigation of Flynn

    • His public statements about this pressure and his carefully chosen term, “directed” will force Special Counsel Mueller to look at the matter as possible obstruction
    • Mueller might have done that anyway
    • It won’t come to anything legally, but Democrats will seize on “possible obstruction” as a political hammer

    ◆ Admitted that he had orchestrated leaks of his private conversations, as FBI director, with the President.  

    • These documents almost certainly did not belong to Comey but to the government (but that is a legal matter)
    • He lacked the courage to leak the documents himself or simply disclose them in a press conference. He gave them to a “cutout,” a friendly law professor at Columbia and had him leak them to the New York Times.
    • Under questioning from Congress, he effectively outed the professor without naming him directly. NBC names the professor as Daniel Richman. (NBC)
    • Comey’s statement that he took the memoranda, which belong to the government, and converted them to private use is potentially a legal violation in its own right.

    Claimed his leaks were done for an explicitly political reason: to get a special counsel appointed. An extraordinary admission

    Admitted that Attorney General Loretta Lynch (in Obama’s final years) ordered him not to call an ongoing criminal investigation of Hillary Clinton’s emails what it was: “an investigation.” She told him to call it only a “matter.”

    • Comey said he knew Lynch’s terminology was deliberately false and misleading,
    • Comey acknowledges bowing to this order. Apparently, he did not push back.
    • Comey thinks Lynch’s order was to ensure the DOJ and FBI used the same language the Clinton Campaign was using, even though they knew it was false.
    • This is clear evidence that Lynch was using her office to try and influence the 2016 election.

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    The most interesting comment on the Comey-Trump fight

     Matthew Continetti writes a fascinating opinion column in the Washington Free Beacon, entitled:

    This One Tweet May Lead to Donald Trump’s Impeachment

    The logic is this:

    • A Trump tweet after firing Comey further angers the former director; this is the one that said Comey better hope there are no “tapes.”
    • Comey decides to leak his Cover Your Ass memos (via a friend) with the goal of getting a Special Counsel
    • He succeeds
    • The investigation by that Special Counsel, Robert Mueller, could ultimately undermine the Trump administration and even lead to impeachment

    Continetti writes:

    It now looks like the most consequential Tweet of his presidency to date came a few days after he fired James Comey as FBI director. At 8:26 a.m. on Friday, May 12, Trump wrote: “James Comey better hope that there are no “tapes” of our conversations before he starts leaking to the press!”

    That tweet, Comey told the Senate, prompted the now-private citizen to instruct a friend, Columbia Law professor Daniel Richman, to share with the New York Times the contents of contemporaneous memos he had written describing his interactions with the president. The article, published a week to the day Comey was fired, revealed that the president had asked the FBI director to end the criminal investigation into former national security adviser Michael Flynn.

    Why did Comey have Richman call the Times? Because, he told the Senate, he hoped that the disclosure of the memo would prompt the appointment of a special counsel to investigate Russia’s involvement in the 2016 election and possible collusion with associates of the president’s campaign. That is exactly what happened May 17, the day after the Times piece, when Deputy Attorney General Rod Rosenstein named as counsel former FBI director Robert Mueller. –Continetti in the Washington Free Beacon

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  • The “Comey firing” story is going according to script: A comment

    ◆ The Partisans are saying exactly what you expect them to say

    • The Democrats are calling the firing Nixonian, an obstruction of justice because, they say, it was designed to block the Russian investigation.
    • The Republicans are saying that the FBI director’s appointment is within the President’s responsibilities and that Comey’s immediate boss at the Dept. of Justice, a highly-regarded, non-political attorney, lacked confidence in him.

    • The Republicans are stressing the role of Rod Rosenstein, as I expected. Rosenstein memo to his superiors clearly says he lacked confidence in Comey, who, he says, not only made serious mistakes (for which the Democrats had lacerated him) but was still saying he did nothing wrong. By failing to acknowledge his mistakes and learn from them, he raises the likelihood that he will keep making them.
    • The memo, plus news that Trump was frustrated with the continuing Russia investigation (d’uh!), are among the few nuggets of real news since the initial story broke.
    • I explain the basic logic of the two parties’ positions in a previous post here.

    The Democrats are clearly on the offensive, but they have a problem. You cannot coverup a crime–which is essentially their charge against Trump–unless there is a crime.

    So far, there is simply no evidence of such a crime involving Trump or his campaign. Yes, there is a serious investigation into Michael Flynn and perhaps into others, and, yes, the Russians meddled in our election, but so far there is nothing to suggest Trump collaborated with the Russians. (Related story: The Senate committee investigating the Russia issue has ordered Flynn to turn over relevant papers after he failed to do so voluntarily. BBC)

    The Democrats’ call for a special independent counsel will fail unless they can come up with some evidence to support their basic allegation.

    Meanwhile, Trump absolutely must appoint a top-notch, apolitical, experienced law enforcement leader to the FBI. The best names I have heard are Bill Bratton and Ray Kelly, people who have run large police departments very successfully.

    That appointment is not only crucial for Trump politically. It is crucial for the country, which wants to restore confidence in the justice system. And it will be crucial down the line for Trump, who needs to be able to say that the Russia connection was bunk and that a serious FBI inquiry proves it. If the FBI leader doesn’t pass the tests for neutrality and competence, Trump won’t be able to say that.

    ◆ Related story: In the meantime, Trump has hung a nickname on Schumer: “Cryin’ Chuck Schumer” (The Hill) Before deriding Trump’s childishness, remember that he has a real knack for picking nicknames that highlight an opponent’s vulnerability. They stick and they work–not always, but mostly. Jeb Bush was low energy. Marco Rubio did seem too little in the campaign. Hillary was and is corrupt. The Schumer nickname highlights his whining negativity–and Trump could make it stick.

  • ZipDialog Roundup for Tuesday, March 21

    Hand-picked and farm-fresh–
    Linked articles in bold purple

     The top three stories all involve public testimony by FBI Director James Comey

    1. Comey confirms his agency is conducting a counter-intelligence investigation into Russian interference in the 2016 Presidential Election, including any possible contacts with Trump campaign officials. He said no one was excluded from the investigation, but said little beyond that. (Washington Post report here.) 
    2. Comey said no US Government agency authorized any wiretaps or surveillance of Trump Tower. He added that no foreign agencies have been discovered doing such surveillance. Democrats focused on stories #1 and #2. (New York Times report on take-aways from the hearing here.)
      • Comment: Comey’s testimony directly contradict’s Pres. Trump’s tweet. So do the comments of senior members of Congressional Intelligence committees, who have been briefed on the matter. The White House is refusing to back down from its allegations and says it will present evidence later. Perhaps. But no one outside the White House is convinced.
      • Sidenote: Fox News judicial analyst, Judge Andrew Napolitano, asserted last week that British intelligence had done the surveillance and had done so at the request of the Obama White House. That has been vigorously rejected by the British and has not been confirmed by another else. For that reason, Fox News has temporarily taken him off the air, according to the New York Times.
    3. Comey said that a major criminal investigation is being conducted into the “unmasking” of Gen. Michael Flynn’s name from an intercepted phone call with a Russian diplomat.  Republicans focused on this crime, led (as they are so often) by Rep. Trey Gowdy’s skilled prosecutorial questioning. (Los Angeles Times story here.)
      • Comment:
        • The release of Flynn’s name is a felony. US intelligence agencies charged with surveillance of foreign countries sometimes capture their conversations with US citizens. By law, the names of those citizens are supposed to be “masked,” that is, kept secret since they were captured without an appropriate court warrant.
        • VERY few people in the intelligence community, White House, and Department of Justice have access to these “unmasked names.” Professionals say it is probably less that two dozen, all senior political appointees of the Obama Administration, such as National Security Adviser Susan Rice, her number 2, Ben Rhodes, Director of National Intelligence James Clapper, CIA Director James Brennan, former Attorney General Loretta Lynch and former acting Attorney General Sally Yates, as well as the President.
        • One of those senior people leaked Flynn’s name to selected reporters, leading to a bombshell story in the Washington Post (link here), and then to Flynn’s resignation. It is possible, but less likely, that another senior administration official learned the information and then leaked it. But the crucial point is that the information itself was tightly held.
        • The FBI is now under enormous pressure to solve this.
      • My Advice: Once the groundwork has been laid, the Department of Justice should convene a Grand Jury and take testimony, under oath. Every official who had access to Flynn’s unmasked name should be questioned.

     Healthcare Bill: House Republicans unveil changes to bill, on which they expect to vote this Thursday. According to the Washington Post,

    The tweaks addressed numerous GOP concerns about the legislation, ranging from the flexibility it would give states to administer their Medicaid programs to the amount of aid it would offer older Americans to buy insurance. They are the product of two weeks of negotiations that stretched from the Capitol to the White House to President Trump’s Florida resort.

    The bill’s proponents also appeared to overcome a major obstacle Monday after a key group of hard-line conservatives declined to take a formal position against the bill, known as the American Health Care Act. –Washington Post

    Comment: With these changes, the bill should pass the House. It will likely require significant changes to gain 50 votes in the Senate (the number needed for a Reconciliation Budget Bill, with VP Pence breaking the tie). The bill will then go to a conference committee to produce a single joint bill, repealing and replacing Obamacare. That bill will then have to pass both Houses before Pres. Trump can sign it.

    Comment: If this process seems unfamiliar, it is only because Pres. Obama never used “regular order,” even when he controlled both Houses. Until then, it had been the normal way to pass legislation (which, in turn, is the normal way the US passes its laws, not via bureaucratic rule-making).

     Neil Gorsuch hearings for Supreme Court  The NYT lists six highlights. Actually, there were zero.

    Comment: Gorsuch made a calm opening presentation, following by Republicans preening (accurately saying he is supremely well qualified) and Democrats complaining (accurately saying they would not be sitting here if Pres. Obama’s nominee had been given a hearing and a vote).

    That’s why Republicans are secretly so grateful to Mitch McConnell, who saved this seat for them. 

     Kudos to the University of Chicago:

    Free tuition for any children of Chicago Public School employees admitted to the University.

    The parents can be children of teacher, nurse, janitors, counselors–anyone employed by CPS, and do not have to be graduates of Chicago Public Schools. (WBEZ)

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