Jonathan Turley: This Comey memo is pretty thin soup for all the impeachment talk

Headshot image of Dan Calabrese
Published by: Dan Calabrese on Wednesday May 17th, 2017

And it reflects as badly on Comey as it does on Trump, assuming it's real and accurate.

Geez. I can't even go to a Tiger game without the Beltway exploding into another crisis du jour. Matt Boyd is trying to get out of the third inning and a bunch of morons in our sightline don't know enough to sit down. So while I'm trying to find new seats for us, here come the notifications.

Trump in trouble!

Trump faces impeachment!

They've got Trump now!

Now pitching for the Tigers, number 64, Chad Bell.

Trump going to prison!

Against my better judgment, I read up on the Comey memo between innings. The initial takeaway is this: If the memo is real, and Pence and Sessions corroborate they were asked to leave the room so Trump can speak to Comey privately, it won't matter a whit that Trump will deny (as he already has) the contents of the memo. Why? Because congressional Republicans would love to see Trump gone and they can draw up their own articles of impeachment using whatever standard of proof they want. The memo and Comey's testimony will be good enough for them.

Hello Mike Pence, 46th president of the United States. (Oh my, be careful what you wish for, Beltway.)

The fact that Fox News couldn't find any Republicans to come on and defend Trump last night is seen as proof of his imminent doom.

I am not in the prediction business, although I am in the observation business and I would observe that this feels a lot like the immediate aftermath of the Access Hollywood tape, when no one would defend Trump and there was no sense even having the election because Hillary was going to carry all 50 states maybe even pick up some electoral votes in Botswana.

The initial spasms always feel like that.

But I have questions, and so does Hill legal analyst Jonathan Turley, who is no conservative and no Trump fan. Let's start with Turley's:

Not surprising, within minutes of the New York Times report, the response was a chorus of breathless “gotcha” announcements. But this memo is neither the Pentagon Papers nor the Watergate tapes. Indeed, it raises as many questions for Comey as it does Trump in terms of the alleged underlying conduct.

A good place to start would be with the federal law, specifically 18 U.S.C. 1503. The criminal code demands more than what Comey reportedly describes in his memo. There are dozens of different variations of obstruction charges ranging from threatening witnesses to influencing jurors. None would fit this case. That leaves the omnibus provision on attempts to interfere with the “due administration of justice.”

However, that still leaves the need to show that the effort was to influence “corruptly” when Trump could say that he did little but express concern for a longtime associate. The term “corruptly” is actually defined differently under the various obstruction provisions, but it often involves a showing that someone acted “with the intent to secure an unlawful benefit for oneself or another." Encouraging leniency or advocating for an associate is improper but not necessarily seeking an unlawful benefit for him.

Then there is the question of corruptly influencing what? There is no indication of a grand jury proceeding at the time of the Valentine's Day meeting between Trump and Comey. Obstruction cases generally are built around judicial proceedings — not Oval Office meetings.

Of course, that does not change the fact that the question by Trump was wildly inappropriate. Yet, it also raises questions of Comey’s judgment. The account suggests that Comey was so concerned about the conversation that he wrote a memorandum for record. But that would suggest that Comey thought the president was trying to influence the investigation but then said nothing to the Justice Department or to his investigation team. The report says that, while Comey may have told a couple of colleagues at the FBI, he did not tell the investigation team “so the details of the conversation would not affect the investigation.”

Why? If he thought the president was trying to derail the investigation, that would seem relevant to the scope of the investigation. It is like a bank president seeking to close a fraud investigation, but the contact in the FBI decided not to tell bank investigators. One explanation would be that Comey did not view Trump as a potential target of the Flynn investigation, and thus did not view the uncomfortable meeting as relevant to the investigation team (and Trump has maintained that Comey told him three times that he was not a target). However, that would make the case even weaker for allegations that Trump was trying to protect himself or his inner circle by seeking closure for Flynn.

It is highly concerning that Trump has described how Comey actively campaigned to keep his job during this period. As usual, Trump has created the most problematic record for judging his own actions. If Comey was pleading for his job as suggested by Trump, the impropriety of the alleged statement in the Oval Office would be exponentially increased. Trump categorically denies that the statement was ever made. That alone could support an immediate demand for any and all tapes in the possession of Trump and he would be required to turn them over.

Don't forget, of course, that Turley is looking at this strictly in the context of the criminal code. If the House decided to impeach Trump, it would not need to prove a violation of the criminal code to get a conviction. It simply has to decide how it will define "high crimes and misdemeanors" in its articles of impeachment, and then it would take 67 senators to decide Trump should be convicted as charged.

I have no doubt that, all things being equal, most congressional Republicans would prefer President Pence to President Trump - and not necessarily for admirable reasons as we discussed earlier today. But all things are not equal. Mike Pence did not run for president and win the Republican nomination. Donald Trump did. Mike Pence was not on the top of the ticket that won 306 electoral votes. Donald Trump was, with the full support of Mike Pence.

When a president has truly committed a high crime, then Congress has a responsibility to remove him. The situation here is more like this: At worst, Trump asked a very ill-advised question in a private meeting with the FBI director, who then documented it in case he would ever need to go back and make use of the information. For a Congress looking for a pretext to remove a duly elected president, it might just barely do the job. But is it required? Would it be wise?

Those are a few questions I have. Here are some others:

Others have asked this one, but I will too: If Trump asked Comey to do something inappropriate, why didn't Comey resign in protest?

If the investigation of Flynn in particular, and Russia in general, is so important then what evidence has the FBI come up with that anyone did anything wrong?

Did Trump pull an I'm-your-boss-and-you'd-better-give-me-what-I-want routine here? Or did he simply ask for Comey's consideration of the matter? You can argue that it makes no difference in a political context, but if you want to understand what actually happened it makes a world of difference. If Trump acknowledged throughout that it's Comey's call but wanted to nonetheless make the request on Flynn's behalf, that's nowhere near the same thing as pulling rank to kill an investigation.

Did Trump ask because he was worried Flynn would go down? Or did he ask because he thought the whole thing was a ridiculous waste of time that was based on nothing, and he didn't think Flynn deserved that type of harassment? Again, you can say it makes no difference politically, but if you want to understand what happened it's crucially important.

Since Trump has already denied asking Comey to shut down the Flynn investigation, and only the two of them were in the room, how can anyone determine with certainty which one is telling the truth? Just because Comey wrote a memo and dated it doesn't mean he can prove its contents are accurate. Let's say Comey was worried from the beginning about his job security from the moment Trump took office, and realized that he could make any claim he wanted about a personal one-on-one meeting with the president, and if it wasn't accurate, the only person who'd be in a position to refute it would be the widely reviled Donald Trump. Would Comey do something like that? I don't know. He came up with a pretty weak pretext for letting Hillary Clinton off the hook, so who knows? And that brings us to this question:

GDP growth for Obama's final year? A measly 1.6 percent

Are we supposed to believe Barack Obama never communicated his desire for Hillary to not be charged? Perhaps Obama plays the game more cleverly than Trump, and he wouldn't call Comey personally into his office and make the request. He would do it with a wink and a nod such that Loretta Lynch would know exactly what was expected, and could make sure Comey knew. So Obama was more sneaky about doing it, while Trump was ill-advisedly straightforward in simply asking. Why do we now reward sneaky and impeach straightforward?

When Obama's Justice Department was blatantly sabotaging the FBI's Hillary investigation, did Comey write any memos to file about that? Could we see them if he did? And if he didn't, why not?

Who was the anonymous source who leaked this to the New York Times, actually reading the memo to them over the phone? Was it Comey himself? If not, who else did he allow to see the memo?

Last night's media pants-wetting made it sound like, if this memo is for real, Trump's presidency is over. A day later, given time to think it through for those actually interested in doing so, that seems far less clear. But this much is clear: The Beltway establishment is out for this man's head, and they will jump on the first thing they think they've got to try to take him down. I'd be surprised if Trump is impeached over this. But I'd be even more surprised if the next rationale for impeaching him isn't right around the corner.

Dan's new novel, BACKSTOP, is a story of spiritual warfare and baseball. Download it from Amazon here!