The Five Lines of Defense Against Comey—and Why They Failed

Trump’s supporters attacked the former FBI director’s testimony, but didn’t manage to discredit it.

Brendan Smialowski / Getty / Zak Bickel / The Atlantic

Thursday was a bad, bad day for Team Trump. Things looked even worse at the end of the day than they did when the Senate Intelligence Committee adjourned midday.

The first line of defense—revealed by the president’s own team yesterday—is that Comey somehow vindicated Trump by confirming that he told Trump in January that Trump was not personally a target of an investigation. But if that assurance had been enough for the president, Trump would not have added the demand that Comey end the investigation of Michael Flynn. Trump evidently felt strongly motivated to protect Flynn—more strongly motivated than he had been to protect any of his other associates.

Line two of defense is that the president’s expression of a “hope” that Mike Flynn could be “let go” merely expressed a wish, not an order. But Adam Liptak, Supreme Court reporter for The New York Times, almost instantly produced an example of an obstruction of justice conviction that rested precisely on “I hope” language—and the all-seeing eye of Twitter quickly found more. Anyone who has ever seen a gangster movie has heard the joke, “Nice little dry cleaning store, I hope nothing happens to it.” The blunt fact is that after Comey declined to drop the investigation or publicly clear the president, Trump fired Comey. A hope enforced by dismissal is more than a wish.

A third line of defense is the attack on Comey personally: that he somehow discredited himself by not speaking out or resigning when he first felt the president had asked for something improper. I wonder how those in the Trump White House who have not yet spoken out or resigned felt about this argument. Comey stayed for the same reason that non-venal people throughout the Trump administration stay: in the hope of protecting not only the country, but also the president himself, from the worse people (or the no people at all!) with whom the president would likely replace them.

Paul Ryan tried a fourth line of defense during the hearings: that Trump had merely committed a protocol violation due to his inexperience in government. But if Trump were such an ingénue, why did he take such extraordinary care always to be alone with Comey when he made his improper demands?

The final line of defense was presented by Trump’s personal lawyer after the hearing ended: Comey was the villain of the story for leaking “privileged” conversations with the president. The premise here seems to be that executive privilege somehow forever silences a terminated federal employee. This is an extremely weird argument:

  • Trump did not invoke executive privilege to prevent Comey from speaking to Congress, the usual place where executive privilege is asserted.
  • Trump himself had spoken and tweeted about the conversation, which is usually taken to void executive privilege.
  • Executive privilege has never before been thought to impose a lifetime obligation of silence upon former members of the executive branch.
  • The Supreme Court case most directly on point, U.S. v. Nixon, established that executive privilege cannot be used to conceal evidence of crime, which is what Comey’s leak and subsequent sworn testimony, purportedly revealed.

Michael Isikioff of Yahoo News reported that four top D.C. lawyers had refused to handle Trump’s defense.

“The concerns were, ‘The guy won’t pay and he won’t listen,’” said one lawyer close to the White House who is familiar with some of the discussions between the firms and the administration, as well as deliberations within the firms themselves.

If accurate, Isikoff’s reporting suggests that a lifelong habit of skipping out on bills has saddled Trump with an attorney ill-prepared for the task ahead.

Friends of the president will reply that the Comey hearing did not produce a smoking gun. That’s true. But the floor is littered with cartridge casings, there’s a smell of gunpowder in the air, bullet holes in the wall, and a warm weapon on the table. Comey showed himself credible, convincing, and consistent. Against him are arrayed the confused excuses of the least credible president in modern American history.

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