by Michael Dorf
Prof. Buchanan will have the official DoL Comey post-mortem in a few hours. Meanwhile, I'll just raise an issue that occurred to me when Comey was testifying yesterday. I thought: "You were the FBI Director. You had access to all sorts of gadgets. After your first uncomfortable meeting with Trump, why didn't you wear a wire in person and record your phone conversations with him?"
That question in turn raised a legal question. Would it be legal? Apparently yes. Washington, D.C. is a one-party consent jurisdiction, meaning that it is legal for a person to record his own conversation with someone else, even without the other person's consent. As an article last month in Politifact explains, that means it's lawful for the president to record his conversations with others. It also works vice-versa, unless there is some federal law forbidding recording conversations with federal officials or the president in particular--but so far as I can tell, there isn't any such federal law.
As I said, I thought about this possibility while Comey was testifying, because I imagined that the White House response would be to cast doubt on Comey's version of events. I then thought that this expectation was justified when "Predisent" Trump's personal lawyer Marc Kasowitz released a clearly unproofread letter that cherry-picked the parts of Comey's testimony he liked--Trump himself was not under FBI investigation (at least not prior to his interference with that investigation); Comey was the leaker of what Kasowitz described as "privileged communications--while ignoring or contradicting the parts of Comey's testimony Kasowitz disliked--e.g. Trump's demand for loyalty. The Kasowitz letter at least partly explains why Comey said that "Lordy, I hope there are tapes." Tapes would presumably vindicate Comey's entire account.
And then this morning el Predisente tweeted that Comey's testimony provided "total and complete vindication." Trump didn't bother to contradict anything Comey said, perhaps in tacit recognition that in a swearing contest the pathological liar is at a serious disadvantage. So maybe Comey didn't need to wear a wire after all.
But that doesn't mean that others don't. Trump's modus operandi when facing unpleasant accounts of his behavior is to deny it, to attack the character(s) of the source(s), to completely mischaracterize the account, to claim that his own behavior as described was not a big deal (e.g., "locker-room talk"), and to just claim vindication in general terms. Wearing a wire won't protect against all of these moves, but it will protect against the first two.
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8 comments:
Are there security detectors in the White House that might make it difficult for someone to wear a wire? If not, recall the meeting Trump had with Russian officials covered by Russian press personnel.
As an attorney/officer of the court, what are the ethical obligations of Trump's attorney with regard to public statements on behalf of the client? Back when I started to practice law (1954), attorneys were quite cautious in making such public statements because of ethical obligations per bar codes. Over more recent years, the rules might have changed somewhat and perhaps stretched by aggressive attorneys. I assume that Trump's attorney in making public statements did so with the consent of Trump so as not to violate confidentiality requirements. Sean Spicer as press secretary, not a lawyer, has become more cautious in responding to press questions as to Trump's views on certain matters.
But I'm curious: Does the White House have rules on the use of recording devices in the White House regarding non-White House personnel/visitors?
Following up on Shag’s comment is the question of what legal responsibility/liability/jeopardy does Comey have with respect to having given his notes to a friend and asking that friend to release some of the contents to the press? Trump’s attorney seems to think this is a big issue and has threatened to fill a complaint somewhere, somehow.
The information in the notes and the notes themselves were not classified. There was no Exec Priv invoked and Comey did not have an attorney/client relationship with Trump that would make them privileged. So what, if any, is the legal issue with respect to Comey either releasing the info himself or asking a colleague to do so?
One thing flagged in the coverage is Comey's red flag about the Attorney General.
“Our judgment, as I recall, was that he was very close to and inevitably going to recuse himself for a variety of reasons,” Comey said on Thursday. “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 and so we were—we were convinced and in fact, I think we had already heard that the career people [at the Justice Department] were recommending that he recuse himself, that he was not going to be in contact with Russia related matters much longer.”
http://talkingpointsmemo.com/dc/sessions-responds-comey-testimony
Sessions pushed back but given his questionable testimony to Congress and so forth, who are you going to believe there?
As to being taped, I would hope in the 21st Century there was a way to stop people talking to the guy in the White House without the person secretly wearing a wire.
In general, even those who support Trump really don't actually take what he says on face value. Those who do are sad deluded souls.
Thanks for the post , you ignore here some more than bit problematic issues , in that suggestion of wearing a wire or recorder :
First , Comey had to prepare it , prior to the meeting . Now , only in retrospect apparently , he was upset , with the conversation . But , having prepared it , in advance , could easily prove , that , he hadn't approach the conversation , with good faith , and due innocence . So , It would have been , easier for Trump , to suggest , that , The director of the FBI , was acting with bad faith , and malicious intent . Writing a memo , after the fact , and in light of ad hoc revelation , is one thing , but , prior to it , suggests clearly , potential malicious intent .
Second , Legally , it is one thing , to record , your own conversation with another person , yet , if you record it , and meanwhile , other third parties , talk inside the room , you would record them simultaneously . This is more than problematic . And indeed , Trump , has ordered everybody in the oval office , to leave the room , prior to the conversation . So , unless , activated , on spot , right when conversation starts , it is , prima facie problematic .
Thanks
Mike's:
"Washington, D.C. is a one-party consent jurisdiction, meaning that it is legal for a person to record his own conversation with someone else, even without the other person's consent."
observation is not limited to one other person's consent but several other persons who may be present as well who may or may not engage in the conversation recorded.
There are press reports that Trump's attorney may be filing a complaint with DOJ that Comey is a "Leaker." Is it irony that President Trump can be the "Leaker-in-Chief" with respect to classified docduments, and do it legally, as he did with Russian officials at their White House meeting. Speaking of leaking, what if anything was said aby Comey in the Senate Committee's closed session about any verifications of the contents of the Russia dossier on Trump? I understand that the press is reporting some leaks from the closed session.
One thing is quite clear: the "court" of public opinion on Comey's open testimony is determined with common sense based on Trump's antics during his lifetime without the need of any prima facie legal aid.
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