EPTOn June 09 2017 02:26 xDaunt wrote:
Well, if you read the text, then I'm sure that you saw this:
EDIT: Sorry, I misunderstood what you were saying about the tweet length. Here's the problem with that explanation: Abramson didn't post a clarification anywhere else, and he clearly argues straight up persuasion throughout his tweet chain.
And here's the other thing that bothered me about this statute when I looked at it last night. We're focusing on the act, but the the statute itself only prohibits certain ends. In short, I don't even think that this statute really applies to this situation. Take a look at the following from Alan Dershowitz:
Source.
All of this goes to the point that I repeatedly stated since yesterday: by definition, can Trump do something illegal (and impeachable) if he is acting within his constitutional authority? Dersh's explanation is the best that I have seen yet.
Show nested quote +
On June 09 2017 02:19 Ragnarork wrote:
I actually read it and checked the actual text, so dunno what you're asking exactly. And I stand by my opinion.
On June 09 2017 02:16 xDaunt wrote:
Go read the text of the statute and not the title, which has no meaning whatsoever.
On June 09 2017 02:12 Ragnarork wrote:
I see that the same way. This was less about persuasion rather than veiled threat behind the "I hope you do X" and the fact he had everyone else leave, and can decide to actually put an end to his tenure as FBI's director.
Also, the text
(18) And under "Obstruction by Intimidation, Threats, Persuasion, or Deception (18 U.S.C. 1512), Trump DID "attempt to persuade" Comey.
Would not fit in a tweet with the word "corruptly". Which is 99% more probable to be the reason it was left out lol.
On June 09 2017 02:11 Plansix wrote:
I asked last night, but is “corruptly persuade” one of the required prongs? Is the implied threat of losing his job not enough to meet the prong of “threatening”?
Because I believe Abramson left “corruptly persuade” out of his tweets specifically because we have zero evidence of bribery or quid pro quo. It just isn’t a factor and he is explaining law to the public.
On June 09 2017 02:07 xDaunt wrote:
He turned "corruptly persuade" into "persuade." The statute that he cites in those tweets clearly says "corruptly persuade." There's a huge difference between the terms.
On June 09 2017 02:06 DarkPlasmaBall wrote:
What does he say that's incorrect? What makes you think he doesn't understand the statute?
On June 09 2017 02:02 xDaunt wrote:
Like I pointed out last night, Seth Abramson is full of shit. He either doesn't understand the statute that he cites in those tweets, or he is a hack and is intentionally misrepresenting what it says. My bet is on the latter.
On June 09 2017 01:59 DarkPlasmaBall wrote:
It's always been "I hope" rather than "I order", which means semantically, without context, it's unclear but the intention in context is clear, which may not be enough to legally convict Trump of obstruction of justice. When your boss asks you to see him privately in his office and he says "I hope you can do X for me and I demand loyalty from you", I think it's pretty clear that he's giving you a specific direction and objective that he wants you to follow, which is what Comey's understanding of the situation was as well. And then afterwards, if your boss fires you and tells everyone that he fired you because you didn't do X, that sounds pretty straightforward that the "hope" was an implied "do this or else", with the "or else" being "You're fired".
Of course, while "obstruction of justice" is a well-defined legal term, impeachment is completely political. I wouldn't be surprised if this potential obstruction of justice isn't a smoking gun for impeachment; Republicans would have to dislike Trump even more than they/ Americans do now.
I really like this breakdown of obstruction of justice: https://mobile.twitter.com/SethAbramson/status/872532952055513088
"(13) If the words Comey CONTEMPORANEOUSLY RECORDED as having been said by Trump were indeed said, Trump IS guilty of Obstruction of Justice." That's referencing the "I hope" part.
On June 09 2017 01:12 xDaunt wrote:
Here's the moneyshot on the "I hope" nonsense in case anyone missed it:
[quote]
Here's the moneyshot on the "I hope" nonsense in case anyone missed it:
[quote]
It's always been "I hope" rather than "I order", which means semantically, without context, it's unclear but the intention in context is clear, which may not be enough to legally convict Trump of obstruction of justice. When your boss asks you to see him privately in his office and he says "I hope you can do X for me and I demand loyalty from you", I think it's pretty clear that he's giving you a specific direction and objective that he wants you to follow, which is what Comey's understanding of the situation was as well. And then afterwards, if your boss fires you and tells everyone that he fired you because you didn't do X, that sounds pretty straightforward that the "hope" was an implied "do this or else", with the "or else" being "You're fired".
Of course, while "obstruction of justice" is a well-defined legal term, impeachment is completely political. I wouldn't be surprised if this potential obstruction of justice isn't a smoking gun for impeachment; Republicans would have to dislike Trump even more than they/ Americans do now.
I really like this breakdown of obstruction of justice: https://mobile.twitter.com/SethAbramson/status/872532952055513088
"(13) If the words Comey CONTEMPORANEOUSLY RECORDED as having been said by Trump were indeed said, Trump IS guilty of Obstruction of Justice." That's referencing the "I hope" part.
Like I pointed out last night, Seth Abramson is full of shit. He either doesn't understand the statute that he cites in those tweets, or he is a hack and is intentionally misrepresenting what it says. My bet is on the latter.
What does he say that's incorrect? What makes you think he doesn't understand the statute?
He turned "corruptly persuade" into "persuade." The statute that he cites in those tweets clearly says "corruptly persuade." There's a huge difference between the terms.
I asked last night, but is “corruptly persuade” one of the required prongs? Is the implied threat of losing his job not enough to meet the prong of “threatening”?
Because I believe Abramson left “corruptly persuade” out of his tweets specifically because we have zero evidence of bribery or quid pro quo. It just isn’t a factor and he is explaining law to the public.
I see that the same way. This was less about persuasion rather than veiled threat behind the "I hope you do X" and the fact he had everyone else leave, and can decide to actually put an end to his tenure as FBI's director.
Also, the text
(18) And under "Obstruction by Intimidation, Threats, Persuasion, or Deception (18 U.S.C. 1512), Trump DID "attempt to persuade" Comey.
Would not fit in a tweet with the word "corruptly". Which is 99% more probable to be the reason it was left out lol.
Go read the text of the statute and not the title, which has no meaning whatsoever.
I actually read it and checked the actual text, so dunno what you're asking exactly. And I stand by my opinion.
Well, if you read the text, then I'm sure that you saw this:
EDIT: Sorry, I misunderstood what you were saying about the tweet length. Here's the problem with that explanation: Abramson didn't post a clarification anywhere else, and he clearly argues straight up persuasion throughout his tweet chain.
Show nested quote +
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—
And here's the other thing that bothered me about this statute when I looked at it last night. We're focusing on the act, but the the statute itself only prohibits certain ends. In short, I don't even think that this statute really applies to this situation. Take a look at the following from Alan Dershowitz:
Show nested quote +
In 1992, then-President George H.W. Bush pardoned Caspar Weinberger and five other individuals who had been indicted or convicted in connection with the Iran-Contra arms deal. The special prosecutor, Lawrence Walsh, was furious, accusing Bush of stifling his ongoing investigation and suggesting that he may have done it to prevent Weinberger or the others from pointing the finger of blame at Bush himself. The New York Times also reported that the investigation might have pointed to Bush himself.
This is what Walsh said: "The Iran-contra cover-up, which has continued for more than six years, has now been completed with the pardon of Caspar Weinberger. We will make a full report on our findings to Congress and the public describing the details and extent of this cover-up."
Yet Bush was neither charged with obstruction of justice nor impeached. Nor have other presidents who interfered with ongoing investigations or prosecutions been charged with obstruction.
It is true that among the impeachment charges leveled against President Richard Nixon was one for obstructing justice, but Nixon committed the independent crime of instructing his aides to lie to the FBI, which is a violation of section 1001 of the federal criminal code.
It is against the background of this history and precedent that former FBI Director James Comey's opening statement to the Senate Intelligence Committee must be considered.
Comey himself acknowledged that: "throughout history, some presidents have decided that because ‘problems' come from Justice, they should try to hold the Department close. But blurring those boundaries ultimately makes the problems worse by undermining public trust in the institutions and their work." Comey has also acknowledged that the president had the constitutional authority to fire him for any or no cause.
President Trump also had the constitutional authority to order Comey to end the investigation of former national security adviser Mike Flynn. He could have pardoned Flynn, as Bush pardoned Weinberger, thus ending the Flynn investigation, as Bush ended the Iran-Contra investigation. What Trump could not do is what Nixon did: direct his aides to lie to the FBI, or commit other independent crimes. There is no evidence that Trump did that.
With these factors in mind, let's turn to the Comey statement.
Comey's written statement, which was released in advance of his Thursday testimony before the Senate Intelligence Committee, does not provide evidence that Trump committed obstruction of justice or any other crime. Indeed it strongly suggests that even under the broadest reasonable definition of obstruction, no such crime was committed.
The crucial conversation occurred in the Oval Office on Feb. 14 between the president and then-Director Comey. According to Comey's contemporaneous memo, the president expressed his opinion that retired Gen. Flynn "is a good guy."
Comey replied, "He is a good guy."
The president said, "I hope you can see your way clear to letting this thing go."
Comey understood that to be a reference only to the Flynn investigation and not "the broader investigation into Russia or possible links to the campaign." Comey had already told the president that "we were not investigating him personally."
Comey understood "the President to be requesting that we drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December."
Comey did not say he would "let this go," and indeed he did not grant the president's request to do so. Nor did Comey report this conversation to the attorney general or any other prosecutor. He was troubled by what he regarded as a breach of recent traditions of FBI independence from the White House, though he recognized that "throughout history, some presidents have decided that because ‘problems' come from the Department of Justice, they should try to hold the Department close."
That is an understatement.
Throughout United States history — from Presidents Adams to Jefferson to Lincoln to Roosevelt to Kennedy to Obama — presidents have directed (not merely requested) the Justice Department to investigate, prosecute (or not prosecute) specific individuals or categories of individuals.
It is only recently that the tradition of an independent Justice Department and FBI has emerged. But traditions, even salutary ones, cannot form the basis of a criminal charge. It would be far better if our constitution provided for prosecutors who were not part of the executive branch, which is under the direction of the president.
In Great Britain, Israel and other democracies that respect the rule of law, the director of public prosecution or the attorney general are law enforcement officials who, by law, are independent of the prime minister.
But our constitution makes the attorney general both the chief prosecutor and the chief political adviser to the president on matters of justice and law enforcement.
The president can, as a matter of constitutional law, direct the attorney general, and his subordinate, the director of the FBI, tell them what to do, whom to prosecute and whom not to prosecute. Indeed, the president has the constitutional authority to stop the investigation of any person by simply pardoning that person.
Assume, for argument's sake, that Trump had said the following to Comey: "You are no longer authorized to investigate Flynn because I have decided to pardon him." Would that exercise of the president's constitutional power to pardon constitute a criminal obstruction of justice? Of course not. Presidents do that all the time.
Bush pardoned Caspar Weinberger, his secretary of defense, in the middle of an investigation that could have incriminated Bush. That was not an obstruction and neither would a pardon of Flynn have been a crime. A president cannot be charged with a crime for properly exercising his constitutional authority
[b]For the same reason, Trump cannot be charged with obstruction for firing Comey, which he had the constitutional authority to do.
The Comey statement suggests that one reason Trump fired him was because of his refusal or failure to publicly announce that the FBI was not investigating Trump personally. Trump "repeatedly" told Comey to "get that fact out," and he did not.
If that is true, it is certainly not an obstruction of justice.
Nor is it an obstruction of justice to ask for loyalty from the director of the FBI, who responded "you will get that [‘honest loyalty'] from me."
Comey understood that he and Trump may have understood that vague phrase "honest loyalty" differently. But no reasonable interpretation of those ambiguous words would give rise to a crime. Many Trump opponents were hoping that the Comey statement would provide smoking guns.
It has not.
Instead it has weakened an already weak case for obstruction of justice.
The statement may provide political ammunition to Trump opponents, but unless they are willing to stretch Comey's words and take Trump's out of context, and unless they are prepared to abandon important constitutional principles and civil liberties that protect us all, they should not be searching for ways to expand already elastic criminal statutes and shrink enduring constitutional safeguard in a dangerous and futile effort to criminalize political disagreements.
The first casualty of partisan efforts to "get" a political opponent — whether Republicans going after Clinton or Democrats going after Trump — is often civil liberties. Everyone who cares about the Constitution and civil liberties must join together to protest efforts to expand existing criminal law to get political opponents.
Today it's Trump. Yesterday it was Clinton. Tomorrow it could be you.
This is what Walsh said: "The Iran-contra cover-up, which has continued for more than six years, has now been completed with the pardon of Caspar Weinberger. We will make a full report on our findings to Congress and the public describing the details and extent of this cover-up."
Yet Bush was neither charged with obstruction of justice nor impeached. Nor have other presidents who interfered with ongoing investigations or prosecutions been charged with obstruction.
It is true that among the impeachment charges leveled against President Richard Nixon was one for obstructing justice, but Nixon committed the independent crime of instructing his aides to lie to the FBI, which is a violation of section 1001 of the federal criminal code.
It is against the background of this history and precedent that former FBI Director James Comey's opening statement to the Senate Intelligence Committee must be considered.
Comey himself acknowledged that: "throughout history, some presidents have decided that because ‘problems' come from Justice, they should try to hold the Department close. But blurring those boundaries ultimately makes the problems worse by undermining public trust in the institutions and their work." Comey has also acknowledged that the president had the constitutional authority to fire him for any or no cause.
President Trump also had the constitutional authority to order Comey to end the investigation of former national security adviser Mike Flynn. He could have pardoned Flynn, as Bush pardoned Weinberger, thus ending the Flynn investigation, as Bush ended the Iran-Contra investigation. What Trump could not do is what Nixon did: direct his aides to lie to the FBI, or commit other independent crimes. There is no evidence that Trump did that.
With these factors in mind, let's turn to the Comey statement.
Comey's written statement, which was released in advance of his Thursday testimony before the Senate Intelligence Committee, does not provide evidence that Trump committed obstruction of justice or any other crime. Indeed it strongly suggests that even under the broadest reasonable definition of obstruction, no such crime was committed.
The crucial conversation occurred in the Oval Office on Feb. 14 between the president and then-Director Comey. According to Comey's contemporaneous memo, the president expressed his opinion that retired Gen. Flynn "is a good guy."
Comey replied, "He is a good guy."
The president said, "I hope you can see your way clear to letting this thing go."
Comey understood that to be a reference only to the Flynn investigation and not "the broader investigation into Russia or possible links to the campaign." Comey had already told the president that "we were not investigating him personally."
Comey understood "the President to be requesting that we drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December."
Comey did not say he would "let this go," and indeed he did not grant the president's request to do so. Nor did Comey report this conversation to the attorney general or any other prosecutor. He was troubled by what he regarded as a breach of recent traditions of FBI independence from the White House, though he recognized that "throughout history, some presidents have decided that because ‘problems' come from the Department of Justice, they should try to hold the Department close."
That is an understatement.
Throughout United States history — from Presidents Adams to Jefferson to Lincoln to Roosevelt to Kennedy to Obama — presidents have directed (not merely requested) the Justice Department to investigate, prosecute (or not prosecute) specific individuals or categories of individuals.
It is only recently that the tradition of an independent Justice Department and FBI has emerged. But traditions, even salutary ones, cannot form the basis of a criminal charge. It would be far better if our constitution provided for prosecutors who were not part of the executive branch, which is under the direction of the president.
In Great Britain, Israel and other democracies that respect the rule of law, the director of public prosecution or the attorney general are law enforcement officials who, by law, are independent of the prime minister.
But our constitution makes the attorney general both the chief prosecutor and the chief political adviser to the president on matters of justice and law enforcement.
The president can, as a matter of constitutional law, direct the attorney general, and his subordinate, the director of the FBI, tell them what to do, whom to prosecute and whom not to prosecute. Indeed, the president has the constitutional authority to stop the investigation of any person by simply pardoning that person.
Assume, for argument's sake, that Trump had said the following to Comey: "You are no longer authorized to investigate Flynn because I have decided to pardon him." Would that exercise of the president's constitutional power to pardon constitute a criminal obstruction of justice? Of course not. Presidents do that all the time.
Bush pardoned Caspar Weinberger, his secretary of defense, in the middle of an investigation that could have incriminated Bush. That was not an obstruction and neither would a pardon of Flynn have been a crime. A president cannot be charged with a crime for properly exercising his constitutional authority
[b]For the same reason, Trump cannot be charged with obstruction for firing Comey, which he had the constitutional authority to do.
The Comey statement suggests that one reason Trump fired him was because of his refusal or failure to publicly announce that the FBI was not investigating Trump personally. Trump "repeatedly" told Comey to "get that fact out," and he did not.
If that is true, it is certainly not an obstruction of justice.
Nor is it an obstruction of justice to ask for loyalty from the director of the FBI, who responded "you will get that [‘honest loyalty'] from me."
Comey understood that he and Trump may have understood that vague phrase "honest loyalty" differently. But no reasonable interpretation of those ambiguous words would give rise to a crime. Many Trump opponents were hoping that the Comey statement would provide smoking guns.
It has not.
Instead it has weakened an already weak case for obstruction of justice.
The statement may provide political ammunition to Trump opponents, but unless they are willing to stretch Comey's words and take Trump's out of context, and unless they are prepared to abandon important constitutional principles and civil liberties that protect us all, they should not be searching for ways to expand already elastic criminal statutes and shrink enduring constitutional safeguard in a dangerous and futile effort to criminalize political disagreements.
The first casualty of partisan efforts to "get" a political opponent — whether Republicans going after Clinton or Democrats going after Trump — is often civil liberties. Everyone who cares about the Constitution and civil liberties must join together to protest efforts to expand existing criminal law to get political opponents.
Today it's Trump. Yesterday it was Clinton. Tomorrow it could be you.
Source.
All of this goes to the point that I repeatedly stated since yesterday: by definition, can Trump do something illegal (and impeachable) if he is acting within his constitutional authority? Dersh's explanation is the best that I have seen yet.
Good writeup by Dershowitz. I had totally forgotten about Iran-Contra's special prosecutor and how HWBush handled things.
