The political elite’s view of President’s Trump alleged
obstruction of justice in the Flynn investigation may be more complex than what
meets the public’s eye. As the existence of former FBI director James Comey’s
memo on a talk with President Trump on the Flynn investigation came to light,
the Republican elite began to buckle before it enforced party discipline. Yet
there is reason to suspect that the elite as a whole supported the president,
or would continue to do so, given the cascade of controversies spilling out of
the White House. Very subtly, in fact, the Republican elite in Washington
doubtless had little respect for the populist element of the president’s
political base; that “such people” could have their man in the White House may
have been a drag on the Trump presidency even with respect to his own party in
Congress. Yet “such people” are American people, and thus part of the popular
sovereign, so part of the tension may have been an eruption of what is normally
rather subdued—namely, the antipathy between a political elite and the People,
even in a democracy. In evaluating a political elite, I submit that a bit of
translucent light never hurts, especially when charges of obstruction of
justice are in the air.
Under federal (U.S.) statutes, sections 1503, 1505, and 1512
of Title 18 make it a crime if someone “obstructs, influences or impedes any
official proceeding,” including FBI investigations.[1]
Although the White House put out the following statement on May 16, 2017, “The
president has never asked [former FBI director] Comey or anyone else to end any
investigation, including any investigation involving General Flynn,” Comey had
written a memo following a meeting with President Trump in which Comey quotes
the president, “I hope you can see your way clear to letting this go, to
letting Flynn go.”[2] A
day earlier, the president had accepted Flynn’s resignation following
revelations that Flynn had lied to Trump’s transition team regarding contact
with the Russian ambassador. So the president knew that Flynn had lied and was
under investigation and yet still asked the FBI director to drop it. I submit
that the president’s request satisfies the statutory prohibition against
influencing an investigation so as to impede it. In fact, given the fact that
the FBI director serves at the pleasure of the president—the latter being the
chief law-enforcement office in the U.S. Government—the president’s request can
be taken as an attempt to pressure the director from a higher position of power
(i.e., to obstruct or block an investigation). Even if the president did not intend to do so, the making of the
statement was itself obstructing or impeding.
James Comey, as director of the FBI, testifying before Congress before being fired by President Trump in part due to his handling of the Russian investigation. (Source: NYT)
Lest it be countered that assessing what was actually said
at the meeting comes down to one man’s word against another’s word, Comey’s
memo “was part of a paper trail [that the FBI director] created documenting
what he perceived as the president’s improper efforts to influence a continuing
investigation.”[3]
That is to say, Comey presumably had other indications of improper efforts.
Even without contemporaneous memos of such efforts, an FBI agent’s
“contemporaneous notes are widely held up in court as credible evidence of
conversations.”[4]
Furthermore, that Comey wrote the memo of his meeting with the president at the
time means that the writing of the memo could not have been retaliation for
Trump eventually firing him. In short, Comey took the customary measures to
ensure that his memo could be regarded as credible.
It is important that the investigation into Flynn was
separate from the “broad investigation into possible collusion between Russia
and the Trump campaign.”[5]
So the appointment of Robert Mueller as special counsel in the FBI for the
second investigation should be distinguished from the question of whether the
president obstructed justice regarding the Flynn investigation. That is to say,
the appointment of Mueller did not tuck the matter of the obstruction away,
even if the public is led to believe that the problem had been solved by the
appointment of an independent counsel. Put another way, Mueller could find no
evidence of collusion between the Trump campaign and the Russian government and
yet separately the president
attempted to obstruct, influence, or impede justice in regard to the Flynn
investigation.
Unfortunately, the “official narratives” provided by the
news media can “smooth over” even important distinctions. Even just
unintentionally, the “sound-bite” approach to news can itself give the false
impression that the fact that an independent counsel had finally been appointed
just after the Comey’s memo came to light sufficed as sufficient
accountability.
Forces less than transparent to the general public at the
time, such as from powerful elements of the political elite, were likely
playing a formidable, albeit stealth, role. Congressional lawmakers of the
president’s political party doubtless had reason to resist Democratic calls for
impeachment proceedings. Hence just days after requesting that the FBI turn
over records of communications between Comey and the president—even indicating
that he was willing to issue a subpoena to obtain Comey’s memo as possible evidence
of obstruction of justice!—Rep. Jason Chaffetz, chairman of the U.S. House
Oversight Committee, suddenly felt the need to resign from Congress at the end
of the next month. To be sure, he had earlier announced that he would not seek
re-election in 2018, but the fact that he had no immediate career plans after
June 30th suggests that he was pushed out even just for having tweeted,
“I have my subpoena pen ready.”[6]
How brutal and stealth the elite’s hard hands are on the levers of raw power! I
bet an example had to be made, either by the Trump White House or its allies in
the Congressional leadership. It is strange that the public was so beguiled
this connection did not become transparent. Had it been so, the credibility of
the memo as evidence against the president would have appreciated considerably
in value, for why else would chairman with a subpoena pen need quickly to be
shown the door?
Yet it is possible that some elements of the political elite
in Washington, even paradoxically Republican lawmakers, may privately have been
wanting to impeach President Trump and remove him from office in favor of VP
Pence. “For Republicans reeling at a daily stream of troubling revelations
about President Trump, the prospect that Vice President Mike Pence would assume
power . . . [was] a remote possibility” at the time.[7]
Sen. McConnell, the Republican Majority Leader of the U.S. Senate, had just
days earlier said out loud (to journalists!) that he was worried that the
litany of continuing controversies coming out of the White House—bottom line,
Trump’s fitness to handle the job—was becoming a distraction, and thus an
obstacle to the Republican policy agenda being enacted into law.
Wall Street and evangelical Christian leaders—representing two
major parts of Republican base—would I strongly suspect prefer the stable and
authentic Pence to Trump. In fact, those parts and their power brokers in the
Washington elite likely have little respect—and plenty of disdain—for the
salient populist part of Trump’s political base of unskilled and uneducated angry
people, who can be so easily manipulated and used. We are now into the murky
undercurrents that can unfortunately run between an entrenched and centralized
political elite and the popular sovereign in a representative democracy. The
impact at this level is admittedly subtle, even unconscious, rather than
direct and predominant, yet important nonetheless.
A political elite naturally has little if any respect for
people it views as behaving at the
outer fringes of society. It is perhaps a perceptual matter of degrees of
civilization, not to mention manners. Even while exclaiming a commitment
to democratic principles, political insiders tend to look down on
outsiders, especially those who are disgruntled and not socialized
into the mores of the polite, rarified society of country clubs and K
Street (i.e., the corporate world of lobbyists in Washington, D.C.). If
the “masses” have their aim set on knocking the political elite off its perch,
this is all the more reason for power-brokers to resist even the elected
officials whose elections the populists made possible.
This underlying tension pertains to intra-party dynamics as
well. The schism between the DNC insiders and the Bernie Sanders "grass
roots" supporters in 2016 is a case in point. So too, the Republican
Party's elite likely had scant regard, truth be told, for what must assuredly
had been referred to at D.C. dinner parties as the party's "trailer
trash" that had voted in droves for Donald Trump—a billionaire miles
above, and thus qualitatively unlike, those voters. In fact, President Trump’s
rather unpresidential conduct during at least the first several months of his
presidency may have been viewed in some Washington-elite, even Republican circles
as reflecting back on his populist base's ignorance, gullibility, and lack of good
judgement in deciding whom to put in the White House.
Put another way—one considerably more charitable to Trump’s
uneducated, angry, and unwealthy populist supporters—the question of President
Trump’s “suitability for office” may come down to whether the political elite
in Washington could continue to stomach a president whose support comes
directly from average Americans. In other words, I wonder whether that elite—especially
the portion thereof (in both major parties!) that has business interests as
political paymasters—even respects those
Americans. They may not have made the best judgment on which candidate is most
conducive to (i.e. could survive in) the presidency, but in the American
philosophy of representative democracy such people are more than worthy to have
their man (or woman) in the White House, for the government is tasked with
representing the people rather than a political or financial elite. It cannot help
itself from looking down its nose on people living on the other side of the
railroad tracks on Main Street. How easy it is for the raw power at an elite’s disposal
to follow from even just dislike under the subterfuge of respectable-sounding “Congressional
hearings” and even “Impeachment proceedings.” It is the use of such subterranean
power by the elite even of Trump’s own party that I suggest we track, for a
variety of motives can easily be in play in disturbing obstacles even in the
same party. Interestingly, an obstruction of democracy (e.g., distain for the
unique element in Trump’s own base) may turn out to fuel efforts—which are
themselves fully legitimate!—to go after an obstruction of justice by a
president who had never been welcomed by the political (or New York business)
elite. To be sure, the predominant elite-mentality is for a party to protect
its own—but as an Italian scholar visiting New York once told me, there’s a
limit to everything.
1. Charlie Savage, “What
Is Obstruction of Justice? An Often Murky Crime, Explained,” The New York Times, May 16, 2017.
2. Ibid; Michael S. Schmidt, “Comey
Memo Says Trump Asked Him to End Flynn Investigation,” The New York Times, May 18, 2017.
3. Ibid.
4. Ibid.
5. Ibid.
7. Julie H. Davis, “Amid
Trump Turmoil, Some Begin Eyeing Mike Pence,” The New York Times, May 18, 2017.
