Another tactical disadvantage resulting from Trump's fatuous flapping of his gums is that it might well also require appointment of an independent prosecutor to investigate the attempted bribe of Comey for purposes of obstructing justice. Tribe explains that, since Sessions and Rosenstein were witnesses to the meeting where Trump formulated his plan to fire Comey, they both need to step out of the chain of command by appointing a special prosecutor for investigating and potentially prosecuting the attempted bribery matter. Since they can both be called as principal witnesses in that matter it is elementary legal ethics that they cannot continue to serve in the chain of command of prosecutors conducting the case.
Sessions was already supposedly recused from dealing with all Trump campaign matters, including the Russian investigation which was implicated in the Comey firing by Trump's later musings, though not by the Memorandum. The Memorandum on its face when it reached Session's desk had nothing to do with the Russian investigation and arguably had nothing to do with the Trump campaign. After Trump linked Comey's firing to the Russian probe, the necessary recusal of Sessions and Rosenstein from the Comey bribe matter left no plausible alternative but the appointment of a special prosecutor to pursue the obstruction of justice charge against Trump. Rosenstein had leaked his view that no special prosecutor was needed for the Russian investigation on its own. But a different calculation now applied to the related Comey bribe matter. Rosenstein accordingly acted quickly to appoint former 2001-20013 FBI Director Robert Mueller to be special counsel over the " FBI investigation of Russian government efforts to influence the 2016 presidential election and related matters ." Trump's attempted bribe of Comey would be a "related matter."
Comey will get to be a "showboat ... grandstander" at least one more time when he reveals whether he will implicate Trump as not just "crazy," but also as a racketeer. The revelation that Trump specifically attempted to obstruct justice with respect to Flynn disclosed that Comey has, like the experienced political player that he is, kept contemporaneous notes of these discussions with Trump which would therefore be admissible in court. Congress is already asking for these notes. It is highly unlikely they or Comey's interpretation of them in congressional hearings will support Trump's account.
Trump's naà ¯vete in publicly disclosing his subjective motivation is spinning out of control. It gave Comey power over Trump in his ability to characterize the nature of the three conversations as attempted bribery to obstruct justice. For purposes of impeachment and even prosecution, Trump's own words only need confirmation and contextualization by Comey to constitute testimony that Comey understood Trump's blandishments as an attempted bribe to divert him from carrying out his official duties.
Unnecessary statements to NBC and Trump's later rationalizations have resulted in giving Comey the keys to the China shop with the capacity to take the bull, El Torumpo, down. Trump's alleged interceding for Flynn simply adds the impression that Trump's relationship with Comey consisted of little other than a pattern of obstruction.
The more troubling issue involved here is not even Trump's record of nearly daily impeachable offenses. That might be expected from any would-be authoritarian leader testing the constitutional checks and balances on his power. The larger issue is about Trump's demonstrated lack of ordinary ability to handle the job. He could not carry out the simple executive act of firing a highly flawed public official for manifestly good cause that was carefully presented by a competent professional aid without, in the process, making needless disclosure of evidence of his own criminal motive for the firing. That the disclosure did him absolutely no good whatsoever suggests a troubling level of incompetence, or worse. If he will do that, it is fair to inquire, can Trump be expected to bring the same incompetence to his conduct of other similarly serious public matters? It took little time for him to carelessly disclose official secrets in international negotiations for no good reason that can be shown, but apparently to the detriment of important foreign intelligence operations.
Like many, Prof. Tribe sees the problem as Trump's authoritarian tendency to violate the law. The reality may be even more troubling than that.
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