Thursday, June 08, 2017

"That Thing"

by Michael Dorf

Perhaps thinking to himself "Sessions might resign, Kushner might be demoted and so no longer blocking me, and then I can become Attorney General," lame-duck NJ Governor Chris Christie yesterday attempted to curry favor with President Trump by dismissing James Comey's written testimony about how Trump repeatedly sought "loyalty" from Comey as "normal New York City." As a longtime New Yorker, I can say that this is even less plausible an account of Trump's behavior than the "locker room talk" defense of Trump's Access Hollywood boasts of sexual assaults. No doubt there are some people in New York City who talk this way, but they are all mafia dons.

Later today, Prof. Buchanan will have a non-Comey post. He'll then be back tomorrow with coverage of Comey Day on Capitol Hill. Meanwhile, I just want to blast out a quick thought in advance of today's hearing.

Comey's written testimony concludes on a cliffhanger. The last time Trump speaks to Comey, Trump says: "I have been very loyal to you, very loyal; we had that thing you know." Comey does not explain what he thought "that thing" was, but to my mind it's pretty clear. Trump interpreted Comey's earlier agreement to provide "honest loyalty" as acquiescence to Trump's prior demand for "loyalty." Comey had thought the term "honest loyalty" was sufficiently meaningless that he could promise it in order to move past a very awkward moment in the conversation, but it turned out that Trump heard something different.

"That thing"--which we might alternatively render as "our thing" or "cosa nostra"--was, in Trump's mind, a mutual understanding: Trump would be loyal to Comey by not firing Comey and Comey, in return, would be loyal to Trump by dropping the Russia investigation and working to have the Justice Department approve a public statement that Trump was not himself a target of the investigation. There is very strong post hoc evidence for this view. When it became clear that Comey was not keeping up his end of what Trump thought was the bargain, Trump fired Comey.

Whether all of this amounts to obstruction of justice under Title 18 of the U.S. Code is a matter for criminal law scholars to debate and Robert Mueller to mull over. But very little that is likely to happen in today's hearing will shed further light on what exactly Trump meant by "that thing." Comey can't testify to what Trump actually subjectively meant because only Trump knows. And even if Trump were willing to testify about what he meant, what he would say couldn't be trusted because he has an incentive to paint the encounter in self-serving ways, and he is a habitual liar.