The Volokh Conspiracy
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Three sentences worth contemplating
I am well aware that we have a president who, as even his supporters would surely acknowledge, is less assiduous than most in his use of the English language. I've complained about it before and will continue to do so, and I will continue to try as best I can to apply rigorous standards to what President Trump writes and says, because I believe that careful use of our common language is a bulwark against foolishness and evil.
Here are three sentences from recent news reports, all of which are, I predict, destined to become among the more celebrated sentences in U.S. presidential history, and therefore worth taking a closer look at.
Sentence 1. "While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau."
This now-familiar sentence was sentence No. 3 in Trump's five-sentence letter to FBI Director James B. Comey, relieving the latter of his duties.
To begin with, it rather transparently contradicted the notion, originally advanced by the White House, that Comey's firing was completely unrelated to the FBI investigation into Russian interference with the 2016 election and possible coordination between officials of the Trump campaign and the Russian government. If Trump was, as he claimed at the time, just following the Justice Department's recommendation to fire Comey because of the manner in which Comey had conducted the Hillary Clinton email server investigation, of what possible relevance was the reference to whether Trump was under investigation in a separate and unrelated probe? The Justice Department's supporting memorandum made no mention of the Russia investigation—why was Trump bringing it up?
We now know the answer to that one, of course, courtesy of Trump himself, who has conceded not only that he was "going to fire [Comey] regardless of recommendation," but that "this Russia thing" was indeed foremost in his mind when he decided to fire Comey. As he put it in an interview with NBC's Lester Holt:
And in fact when I decided to just do it [fire Comey], I said to myself, I said, "You know, this Russia thing with Trump and Russia is a made-up story." It's an excuse by the Democrats for having lost an election that they should have won.
It also opens Trump up to charges of obstruction of justice. Helen Murillo at Lawfare has analyzed federal obstruction of justice law in detail, and it's not all that complicated:
Under 18 U.S.C 1505, a felony offense is committed by anyone who "corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States" …
An accompanying code section, 18 U.S.C. § 1515(b), defines "corruptly" as "acting with an improper purpose" …
As the Department of Justice U.S. Attorneys' Manual explains, the crime is found on proof of three elements: "(1) there was a proceeding pending before a department or agency of the United States; (2) the defendant knew of or had a reasonably founded belief that the proceeding was pending; and (3) the defendant corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law under which the proceeding was pending."
If Trump's "purpose" in firing Comey was to interfere with, or end, an ongoing ongoing investigation, he has committed a federal crime.
This sentence in Trump's letter was completely unnecessary, and has all of these unpleasant consequences for him. Why did he put it in? And how in heaven's name could White House Counsel Donald McGahn, who I assume reviewed the letter—I know Trump is a bit of a loose cannon and all that, but surely he got legal advice from counsel before sending it out—have let him put it in?
A charitable reading (not that I'm feeling terribly charitable toward Trump at the moment) of the sentence might be that it was an inartful and clumsy attempt to say: "I couldn't possibly be firing you to interfere with your investigation of me, because you've told me you're not investigating me." But no lawyer worth his salt would let a sentence like this through in a termination letter. Here's a little free legal advice: If you're the owner of, say, a grocery store, and you're firing an employee for some valid reason (poor performance, or bad customer relations) having nothing to do with race or ethnicity, don't write in your firing letter: "I appreciate you informing me, on three separate occasions, that you don't think I'm a racist, but nevertheless…" It just looks bad, you know?
So it makes me wonder whether Trump did, in fact, show the letter to McGahn, or whether he sought McGahn's advice but didn't follow it. (The third possibility—that McGahn was consulted but raised no objections—is too awful to contemplate.)
But there's more deconstructing we can do here:
• "While I appreciate you informing me…" This just happens to be a pet peeve of mine. I know it has absolutely nothing to do with the very important questions on the table, but I can't let it pass. "While" implies duration of time: "While James Comey was giving a talk to FBI agents in Los Angeles, he found out that he had been fired." "While I was swimming, I got a cramp in my right leg." Many people, however, use it the way Trump used it here—as a substitute for "although." (Similarly, many people use "since," which is also a durational preposition—"Since 1980, the crime rate in the United States has been in a steady decline"—as a substitute for "because"—"Since I had to be at the meeting anyway, I figured I'd try to ingratiate myself with my boss.") I know this is a battle that has already been lost, and, as I said, it's not really germane to the larger constitutional issues raised by Trump's sentence, but it really bothers me.
• "… on three separate occasions …" We're surely going to be hearing a lot more about these four words. Did the president really ask the FBI director, straight out, whether he was "under investigation"? And that was appropriate because…? And did Comey really answer?! I must say, I find that difficult to believe, though it is possible. As acting FBI director Andrew McCabe testified the other day, it is not standard FBI practice to respond to such a question (though I'm not aware of any specific policy it would have contravened had Comey responded). Comey is scheduled to testify, under oath, next week, and that will help clear this matter up. (It would be nice to think that we might get the president's views on this under oath as well, but that's probably asking for too much.) And of course—see Sentence 3—there might be tape recordings.
• "… under investigation …" One reason I think it's unlikely that Comey responded to Trump's question is that it appears to lack definite meaning. What does it mean to be "under investigation"? The FBI's Domestic Investigations and Operations Guide defines the "target" of an investigation as someone about whom there exists "substantial evidence linking him or her to the commission of a crime," and the "subject" of an investigation as a "person whose conduct is within the scope of" an investigation. Which (if either) of them did he mean?
• "… I nevertheless concur … that you are not able to effectively lead the bureau." Trump's use of "nevertheless" here strikes me as peculiar. "Nevertheless" overrides a statement pointing in one direction with one that points in the opposite direction:
Although I've always thought you were a good guy, I nevertheless concur with the recommendation that you be fired.
Although Smith was a committed pacifist, he nevertheless enlisted immediately after the Pearl Harbor attack.
Although Jones played in an obscure intramural league, he nevertheless came to the attention of major league scouts.
Trump's sentence, then, can be read to say: "You are not investigating me; because of that, I'd like to keep you on as FBI director; nonetheless, I am going to fire you."
Sentence 2. "Having concluded those meetings [with senior Justice Department officials] today, I have decided to recuse myself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States."
This comes from Attorney General Jeff Sessions's official statement, on March 2, issued immediately after a story in The Washington Post revealed that Sessions had, notwithstanding his denials under oath during and after his confirmation hearings, indeed met—twice—with the Russian ambassador during the 2016 campaign.
Was Sessions's involvement in the firing of Comey a violation of the terms of his recusal? Was it, in other words, an "investigation" into a "matter" relating "in any way" to the 2016 presidential campaigns. (Note the use of the plural—"campaigns"—indicating presumably that a matter related to either the Trump campaign or the Clinton campaign—or the Gary Johnson campaign, for that matter—would be off limits to Sessions.)
Surely the Comey firing was a matter related to the 2016 election; Sessions's recommendation was explicitly based on Deputy Attorney General Rod J. Rosenstein's accompanying memo, and Rosenstein's memo is about nothing other than Comey's actions during the 2016 campaign.
But Sessions's recusal only covers "investigations of" matters relating to the 2016 campaign. Was Sessions improperly involving himself in an "investigation" of that matter?
On the one hand, one wouldn't think that asking the attorney general to evaluate the performance of the FBI director, including his actions during the 2016 campaign, would constitute an "investigation," particularly at the Justice Department, where "investigation" has a rather carefully considered meaning. Comey wasn't being "investigated," Sessions was not "investigating" when he evaluated Comey's performance as FBI director, and I wouldn't think that he was obliged to recuse himself when the president asked him for his recommendation.
On the other hand, if Trump's purpose in firing Comey was to interfere with the Russia investigation—see Sentence 1—things are not quite so clear. Sessions's recusal clearly means that he can't involve himself in that investigation, and consulting about firing the person responsible for that investigation because of the manner in which the investigation is being conducted is surely in the bulls-eye of the prohibition.
Sentence 3. "James Comey better hope that there are no "tapes" of our conversations before he starts leaking to the press!"
This is from Trump's tweet on May 12. Even for a president who has said many nasty things—about everything from grabbing women to Mexican immigrants to Rosie O'Donnell—this seems to cross over the line of appropriate commentary. Does Trump have tapes that are relevant to the Russia investigation? I know the Richard Nixon analogy can sometimes be pressed too far, but really. And if he doesn't have tapes, is he just trying to intimidate a potential witness in that investigation?
And inasmuch as some of our readers here at Volokh Conspiracy seem to have a better understanding of the workings of our president's mind than I have, can anyone explain why there are inverted commas around "tapes"? I cannot for the life of me figure out what that might mean, or why Trump put them in there. Your thoughts welcome.