Monday, June 12, 2017

The Most Damning Testimony: The Words Unspoken

For all the public testimony by James Comey, some of the most significant conclusions from the hearings lie in the words that were not said. Here is Steve's take on Comey's day on Capital Hill.

Every word of James Comey’s Senate Committee appearance has already been parsed, fileted, and seasoned by pundits, anchors, and the constitutional lawyers imported to weigh in on whether the testimony on Comey Central rose to the level of obstruction of justice or an impeachable offense.

But much of the significance of Thursday’s Dancing with the Star Witness lay in the words not spoken, and in the conclusions that were only to be inferred. 

The most significant words unspoken? No one on the Senate Committee – Democrat or Republican -- ever challenged Comey’s core narrative.  No senator attempted to jostle or question his recollection. None baited him with hypotheses about why a fired employee might be motivated to embellish or even wholly concoct a juicy story.  No one rolled their eyes theatrically to convey doubt that anyone could be so absolutely certain of his memory of specific phrases and words.

Let us indeed hope there are tapes, but we doubt they exist, and if they ever did, Trump holds the law in so little regard that we can bet they have already been destroyed. If so, the question of what was actually said in a closed door meeting between the two men will, by definition, come down to “he said, he said,” and the only issue will be who is believed.  By dinner time Thursday it was clear that pretty much everyone residing in the non-alternative fact universe has put their money on Comey.

The most partisan Republicans resorted to defending their President with a strategy that we might call “hope and charity.” They debated the meaning of the word “hope,” and offered wobbly charitable interpretations of how Trump’s words could be viewed as the coarse and unrehearsed  musings and maneuvering of a man accustomed to the rough and tumble of business rather than the legally charged guardrails of executive government.  

Most notably in this regard, Republican Senator Jim Risch of Idaho offered a fascinating prologue before launching his true line of inquiry:

“I want to drill right down, as my time is limited, to the most recent dust up regarding allegations that the President of the United States obstructed justice. Boy, you nailed this down on page 5, paragraph 3. You put this in quotes. Words matter. You wrote down the words so we can all have the words in front of us now. There's 28 words now in quotes. It says, quote, I hope -- this is the president speaking — I hope you can see your way clear to letting this go, to letting Flynn go. He is good guy. I hope you can let this go. Now, those are his exact words, is that correct?”

What is remarkable here is the length that the Senator goes to acknowledge that he believes that Comey has precisely and accurately “nailed” Trump’s quote.  Risch would then shift gears and embark on a challenge to Comey on whether the use of the word “hope” in the phrase made the comment a benign suggestion rather a direct order. But the significance of his opening was the wholesale concession by a Republican that Comey had perfectly and precisely quoted the President.

Referencing this aspect of the testimony, Trump’s son proved that legally damaging tweets run in the family. Donald Trump, Jr. tweeted “Knowing my father for 39 years when he ‘orders or tells’ you to do something there is no ambiguity, you will know exactly what he means.” This, of course, establishes that the younger Donald – like Senator Risch -- has wholly accepted Comey’s version of the precise words, and is only questioning how to interpret them.

Comey’s response was one of his strongest moments in the day. He demanded that the words be assessed in context. You don’t need a master’s degree in hermeneutics to know that the true meaning of words cannot be drained and sanitized by abstracting them from the specific historical context in which they appear. When the President of the United States demands to see a man in a subordinate position alone, and then uses the closed door meeting to make one point and one point only – “I hope you can see your way to letting this go” – the word “hope” has a very narrow meaning, more like “I hope you understand that I am actually issuing you a direct order.”

Indeed, this is an excellent example of the law of unintended consequences: Senator Risch had "hoped" to defuse the impact of Comey's testimony by questioning his interpretation of Trump's phrasing. Instead, his line of inquiry accomplished three things: (1) it provided an extended laser focus on the precise phrase that is ground zero for a charge of obstruction of justice, (2) it served to seal the fact that the Republicans wholly accept Comey’s transcription of the exact language, and (3), it provided the perfect forum for Comey to spell out exactly how he interpreted the meaning inherent in the words.

Perhaps the most fascinating implication of this is the inference that the Republicans are willing to concede the same assumption of accuracy to all the individual memoranda that Comey created after each meeting. The Republicans essentially issued a carte blanche that Comey’s carefully written summaries will stand as the undisputed factual accounting of Comey’s one-on-one meetings with the President – until someone produces actual recordings.

The word “hope” is a recurring motif in this drama, bearing directly on the issue of audio recordings. On May 12, shortly after firing Comey as FBI Director, Donald Trump had issued a strange and seemingly ominous tweet:

“James Comey better hope that there are no "tapes" of our conversations before he starts leaking to the press!”

Comey, in his testimony Thursday, seized a moment to gush “Lordy, I hope there are tapes.”  This direct counter-punch at Trump – echoing and yet inverting the exact same phrase that Trump had used in the tweet – was a brilliant challenge. Bring it on, Mr. President. Produce those tapes.  If tapes don’t exist, it proves you were being intentionally misleading and threatening in your May 12 tweet.

And if they do exist, Lordy, Mr. President, you are in deep shit.

Trump’s overall response to the Comey testimony was pretty much exactly what we have come to expect from this White House: you punch me, I will punch you back harder. Unlike all the Republican senators (and even his son!) Trump alone appeared to be taking the position that Comey was lying under oath in his characterization of the private meetings, asserting that he never directed Comey to drop the investigation of Flynn. At some point – either through tapes or in a sworn deposition to Special Prosecutor Mueller – we will learn whether Trump means that Comey literally fabricated the exchange, or is simply hiding behind Senator Risch’s weasel that the word “hope” should not be construed as a direct order. Trump would then be in the position of, well, hoping that people buy into Risch’s logic. If not, his “hope” to Comey is a pretty cut and dried example of obstruction.

Of all things said and unsaid, there is one fact that surfaced for the first time in the Comey hearings, and while it is not legally damning, it was nonetheless  a very damaging commentary on the priorities and concerns of this President.  Again, it is the words unspoken that have so much significance.

Martin Heinrich, a Democratic senator from New Mexico, took a portion of his allotted seven minutes to focus on the issue of what Trump was not discussing with Comey. He asked the former FBI Director whether the President of the United States had ever in the course of nine private one-on-one conversations raised the issue of what the FBI was discovering about the core task of its investigation: understanding how Russian hacking was compromising our democracy.

Senator Heinrich:  “Did the President in any of those interactions that you’ve shared with us today ask you what you should be doing or what our government should be doing or the intelligence community to protect America against Russian interference in our election system?”

Former Director Comey: “I don’t recall a conversation like that.”

Senator Heinrich:  “Never?”

Former Director Comey: “No.”

We thereby learned the President of the United States spoke one-on-one with the head of the FBI nine times in 2017, and not once did the President show the slightest interest in the FBI’s investigation into how a hostile nation waged cyberwarfare against the United States.  Instead, Trump chose to spend his moments of one-on-one time with Comey asking the FBI Director to lay off Flynn, and repeatedly berating Comey to publicly state that Trump was not under investigation.  The words unspoken speak the loudest: Trump was far more concerned with how the FBI investigation was threatening him than how Russian hacking was threatening our democracy.

The Fox News faithful emerged from the hours of hearings with one morsel of new information to put at the front of their newsfeed: that Comey had shared his write-up of a meeting with Donald Trump with a law professor at Columbia University for the express purpose that the memo be forwarded to The New York Times.  Comey was brazenly forthright in the hearings in offering the explanation that he felt sharing the memo would ensure the appointment of a special prosecutor.  Trump’s lawyer wasted no time in trying to condemn Comey as a sleazy “leaker” of government secrets who should now be the subject of an investigation.

There isn’t much of a case against Comey on this front.  Comey is now a private citizen, none of the information in his memo was classified, and Donald Trump did not even try to exert executive privilege over Comey's testimony.

Attempting to defame Comey as a “leaker,” however, illustrates the degree to which Trump’s White House fails to understand the rights and actions of citizens in a democracy.  “Leaking government secrets” conjures an illegal action carried out under cover of darkness in which a paid government employee secretively contacts a reporter and passes along information as an “anonymous source.” That’s quite a distance from James Comey swearing an oath of truth on national television and freely volunteering this information in an open assembly. If you believe what Comey did in this regard has any whiff of illegality, you’d be wrong – but you should acknowledge that your accusation is not “leaking information” but is “civil disobedience.” That’s when people stand up in the public square and break a law in public to call attention to government wrongdoing.

For all the frothy MSNBC salivation about potential obstruction of justice charges, impeachment is simply a political judgment by Congress of the legal issues.  The question of whether Donald Trump serves out his full term will be largely based on whether a requisite number of Republicans in the House and the Senate conclude that Donald Trump has become a hindrance to their agenda and their own re-election, not because they feel any moral or ethical adherence to the rule of law and constitutional democracy.

And yet, in this regard, these hearings represented a very significant shift.

There was a great deal of time devoted to discussing the word “hope,” and there were many “charitable” interpretations of why the President’s actions should be viewed as neither criminal nor grounds for impeachment. What there was not was a whole lot of faith in this President.

No Republican senator dared go where Trump no doubt wished, a full frontal assault on his motive and credibility: “Former Director Comey,  just a few short months ago, my Democratic colleagues were screaming for your head, accusing you of horrendous judgment in the handling of the Anthony Weiner emails. The Democratic candidate for President blamed your erroneous judgments for her loss.  President Trump took office, and, despite grave misgivings about your leadership and competence, allowed you to keep your job until he realized that you no longer had the confidence of government leaders across party lines. He fired you. Then, and only then, you immediately took what is clearly retaliatory action by slandering the reputation of the President who fired you. Director Comey, is that not exactly the line of reasoning you would employ if you were the Prosecutor interviewing you as a witness? Why, sir, should anyone believe you?”

And, no Republican senator raced to defend the President based on their deep belief in his moral stature.  Perhaps had there been a different occupant of the White House – one who the senators actually respected – we would  witnessed a full throated endorsement: “Former Director Comey, the President of the United States has publically and on the record denied that he ever gave you any direction to discontinue the investigation of Michael Flynn. Yet you come here today and ask that this august body believe you over the word of the President of the United States, a soul whose integrity is unassailable, whose word is bond, who seeks only truth, justice, and honor, and who holds the duty to preserve, protect, and defend the Constitution above life itself.”

No, you didn’t hear anything like that on Thursday, either.  More words unspoken.

The future of this presidency does not lie in legal definitions of the words “hope,” “let it go,” or even “obstruction of justice.”

It lies in the court of public opinion, as a steady drip, drip, drip of startling evidence accumulates, and ordinary voters attempt to sort out their own feelings by collecting input from trusted sources… like their own senators and congressmen.

The words unspoken on Thursday – the refusal of Republicans to stand by their man, and their obvious acceptance of Comey’s version of the truth – sent a message to the rank and file of the Republican Party.

We don’t believe the President.

And neither should you.

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