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.


David Ricardo said...

We appreciate the fact that Professor Buchanan will post on a non-Comey issue because there are some very significant non-Comey issues out there. Foremost is health care and tax reform(?) and debt ceiling legislation, and not just the components of a Republican bill but the process.

The House rammed through a tax cut/health care bill; no hearings, no debate and the bill wasn’t even public until just before the vote on it and there was no scoring by the CBO. Now it appears the Senate may largely repeat the process, no hearings, no testimony, no debate although they will have to have a CBO score.

To many of us the process by which the Republicans and Trump are trying to pass health care is as dangerous to democracy as is the Flynn/Russian/Hacking/Campaign Coordination activity, maybe even more so if future legislation is dealt with in this manner. As highly respected legal, constitutional and economic experts we hope Mr. Buchanan, Ms. Colb and Mr. Dorf will turn to the process issue as it impacts the constitutional democracy that we think we have.

el roam said...

Thanks for the post , many complications , and it is bit early , yet :
The general subject of the dinner ( shared by Trump and Comey at the white house ) was mainly it seems , around that notion of " loyalty " . However :

Comey , was replying , for the general demand of Trump ( being loyal to him ) by :

" Honest loyalty " . Now , we must presume apparently , that loyalty and honest , don't refer to the Russian probe from Comey's point of view . Then , why to use that terminology : loyalty , and , being honest ( with it ) .

I Believe , that Comey , was facing dilemma , and picked or chose the wrong terminology ( that may implicate him finally ) instead of stating :

" Reasonable ( loyalty ) he was stating : " Honest " . What has happened there probably then :

For Comey , as an old public servant , it is in his blood . He needs to be loyal to his superiors , yet , there is a limit :

The limit is : legality , ruling of law , and public interest ( national security ) . That dilemma , between , loyalty to his superiors , and public interest , has been solved by that wrong terminology :

" Honest loyalty " . Yet :

Trump , is a person , seriously lacking , any : skills , knowledge , and experience , in that matter of : law , public law , and : governance . Yet , it is in his blood : loyalty , is almost , the highest priority . But , here , we are at the white house , not in any campaign race for presidency, or in building any tower nowhere . he doesn't yet comply with the differences .

So , so far , it seems , that : that " thing " refers to the general demand of being loyal , and , not concerning concretely , that Russian investigation. What may support it , is his direct quote , while talking to Comey at the Oval office , and it was stated as saying to him ( concerning former national security adviser Michael Flynn ) :

"I hope you can let this go….."

of course , it is wrong , yet ,it is expressing rather , general hope , general assertion , and not direct request , no coercion of that kind of direct link , between the job of Comey , and sticking to it , and such investigation . So far then , not yet proven , that firing him , has to do with those investigations .

Yet ahead …. Thanks

Bob Hockett said...

Utterly brilliant comparison, Mike - thanks. Waiting now for delivery of a wax-paper-wrapped can of spray tan, assuring us that the Orange Don is, politically speaking, sleeping with the fishes.

Better yet, a long baptismal sequence with Don Don, Don Pence, Consiglieri Sessions, Don McCon, Don Ryan, and more all receiving subpoena papers.

Shag from Brookline said...

The "many complications" cannot be uncomplicated by means of complicated comments. There's an old saying in America, and perhaps the rest of our planet, "Life is complicated enough; don't make it more complicated."

Joe said...

The other issues (including the judges being nominated and Gorsuch himself) are all important but it is a whole united thing too. For instance, the sort of people who are willing to aid and abet Trump are likely to legislate in a bad way, both as a matter of process and a matter of content.

Likewise, keeping the pressure on Trump and those around him will in some fashion make it harder for them to succeed as much and as fast as otherwise possible. This includes tainting them in the media, the political process and so forth. The harm they can do can still be great, but as I once noted, triage is the best we might hope for.

To me, this includes providing damage to the other side when possible, winning when you can, and setting seeds for the future. The place we are at now didn't just come about, even when those in power looked to be losing certain battles.

el roam said...

Just the same drill :

One can only imagine , how I would reply to that comment of Shag . My comments in this regard , are automatically almost deleted , a disgrace by itself .

Unknown said...

Idk. If I were talking to someone and saying that "I was loyal to you" and "You were loyal to me" and then I said we had "that thing," it would refer to a time when maybe we were not so loyal, when maybe there was some sort of problem or misunderstanding.

Joe said...

"That Thing You Do!" ... directed by Tom Hanks, going dark.

Unknown said...

I was born and raised in NYC. After I read Comey's statement yesterday, I called my 88 year-old mom and said (with appropriate mumbled accent): "I'm gonna make him an offer he can't refuse." She immediately understood what I was talking about, having just read Comey's statement herself.

My mom and I have been following Trump's antics for over 40 years. During that time, my mom and I have come to the crystal clear conclusion that he is nothing more than a thug, just like The Teflon Don and other mafioso figures.

They put there arm around their target (in private, of course, so there are no witnesses): "Carmine, can you step outside for a minute. I wanna have a word with John."

They praise there target with phrases such as "I like you Johnny. I think your a good fella."

They subtly tell there target that they "hope" they can count on them to get something done: "Johnny, you know that big construction job on the West Side. I really hope some of the boys can get a piece of the action."

They again praise their target: "Johnny, you have always come through for me and the fellas. I hope you can find a way to make this happen."

They then work a subtle (or not so subtle, if you know how these guys speak and act) threat into the private meeting: "Johnny, how are the wife and kids. That Johnny, Jr. looks just like you. Send them my best. Maria and I will have to have you over for supper soon, Maria will make some of that eggplant that you and your family love."

They then return to the task at hand: "I know I can rely on your loyalty, Johnny. Your honest loyalty. You have always come through."

Anyone who can't read between the lines and see the thug's quid pro quo ("You like your job, You wanna keep your job. Make that thing (the Flynn thing; the Russia thing) go away."), hasn't watched The Sopranos, The Godfather, Good Fellas or The Bronx Story (an under the radar great movie by the way). Maybe someone should get all the members of the Senate Intelligence Committee a free subscription to Netflix?

el roam said...

Just forgotten to " accomplish the dish " with certain prima facie legal analysis :

Here is the relevant provisions ( only the fitting part ) :

18 U.S.C.
United States Code, 2011 Edition
Sec. 1505 - Obstruction of proceedings before departments, agencies, and committees

§1505. Obstruction of proceedings before departments, agencies, and committees

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—
Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

End of quotation :

It seems , prima facie ( on the face of it ) that , such investigation that had been conducted by Comey , can hardly be defined as " pending proceeding " this is because , it may be considered as preliminary one , until fully accomplished and examined by justice department of course . Now , one may wonder , whether such spontaneous wording of Trump , orally made , during a dinner , would fit such definition of obstruction of justice . Flow of information principle , let alone , orally and spontaneously made , may exclude such statement , as obstruction of justice . And indeed , it looks as if the legislator insist on : " threats or force, or by any threatening letter or communication influences …. " not such spontaneous statements , like : " I hope that …. " or : " will you be loyal to me " or : " he is a good guy " .


el roam said...

Just again to clarify and emphasize it :

This is only , first impression analysis , so readers will have , initial lead or impression , for further developments and deeper analysis .


el roam said...

Just adding important one :

" Flow of information " means : first amendment right of course .


P.S : One may read in " nytimes" here , proffessor of constitutional law , here :


Joe said...

John Smith says it well.

I don't really think there is a good cause for confusion here & distrust the good faith when offered. Also, Comey helped prosecute the Gambino crime family. Finally, Trump had dealings with the mob in his business dealings.

Shag from Brookline said...

Apparently some newcomers to the law feel obliged to remind those longer in the field [and in the tooth] of certain latin legal phrases (e.g., prima facie) and translating them into English, often out of context.

Shag from Brookline said...

I share Joe's observation of John Smith's comment. Recall during the Republican debates in 2016 references to some challenges of Trump's shady business practices in dealing with state and local agencies/officials as well as with the making of political contributions and reminding elected politicians of such in order to obtain political juice for projects. Trump turned this into what he thought was a positive, boasting that he knew the system, that he worked the system for "winning" for his projects, that only he could fix the system. But it seems Trump's idea of fixing the system is via the fix for systemizing his business and political interests. And Trump's only into the 5th month of his presidency.

el roam said...

Shag , no reader or observer , can be mistaken here . You post your comments ( and very long period so ) just only for trying ridiculously to defy mines . So again , if you are so brave , and probably claim to have good moral reasons , why don't you put your real and complete name , so , we shall know , who is to be praised here , for such braveness.