WASHINGTON – It’s the political nailbiter Washington has been awaiting. A local bar is opening early to serve Russian vodka and an ‘FBI’ breakfast — French toast, bacon and ice cream. All the U.S. TV networks will cut into their live programming.
The reason: Public testimony that carries high stakes for Donald Trump’s presidency.
After weeks of anticipation, rumour, and the drip, drip, drip of leaks to the media, James Comey, the fired director of the FBI, will testify at a live public hearing Thursday.
It’s part of a two-day affair starting Wednesday as a Senate committee first hears from heads of the National Security Agency, the Department of Justice, the Director of National Intelligence and the interim boss of the FBI.
A former Watergate investigator calls this a big moment.
He says based on what’s already known publicly, Trump is in a precarious legal place: ”I’d say he’s in deep trouble,” says Nick Akerman, who was assistant special prosecutor in the Watergate scandal.
He said that as a federal investigator, then as a New York State prosecutor, he never had a witness say so much, so publicly, that could be construed as obstructing justice as the current president.
Akerman lists the examples: Trump reportedly asked Comey to lay off an investigation into Russian election-meddling; fired Comey; told NBC News the investigation actually entered into his thinking as he fired Comey; reportedly told the Russians that, after Comey’s firing, the pressure was off; and appeared to threaten Comey on Twitter, by hinting at the existence of some kind of recording.
Some of these details were based on anonymous leaks to the press.
Now the questions will be aired publicly, by Comey. And what the old Watergate investigator will be listening for is whether there’s any evidence to suggest someone very important violated 18 U.S. Code Section 1503.
“What you need for obstruction of justice is intent. The key is the intent — to show you’re trying to stop (an) investigation,” Akerman, now a partner at Dorsey and Whitney, said in an interview.
“The bottom line is, the crime is whoever, ‘endeavours to influence, obstruct or impede the due administration of justice,’ commits a crime. It’s a 10-year felony. Here, you’ve got an overwhelming case. …
”(What Trump told NBC) is a super-damning admission. When I was a prosecutor you never got that kind of admission from someone that so nailed their intent.”
He says it doesn’t matter what the original allegation was — whether or not there was election collusion with Russia, what role aides like Mike Flynn and Paul Manafort played in the controversy, what financial transactions they might have had and what the president knew, because, he says: ”(Obstruction) in and of itself is a felony.”
Washington will be hanging on every word. It’s an adrenalin injection into a town whose heart pulses for politics.
Will Trump also be watching? Will he continue to provide running commentary on an ongoing investigation? That’s a big question hanging over the event. Sources told the Washington Post he was considering tweeting during Comey’s testimony.
Trump tweeted Tuesday about his need to tweet.
”The FAKE (News) is working so hard trying to get me not to use Social Media. They hate that I can get the honest and unfiltered message out,” Trump wrote on Twitter. ”Sorry folks, but if I would have relied on the Fake News of CNN, NBC, ABC, CBS, Washpost or NYTimes, I would have had ZERO chance winning (the White House).”
He offered one gracious line when asked by a reporter at the White House whether he had a message for Comey: “I wish him good luck,” Trump said.
Some of the president’s fans want to get tougher.
A Republican radio host pressed the party’s Tom Cotton on whether he’d be looking for inconsistencies in Comey’s testimony and whether his side would ask Comey for any memos he kept about Barack Obama’s administration.
Yes, Tom Cotton replied.
Another Republican radio host urged his side to pound Comey with tough questions like: Did your notes contain classified information? Did you share these notes illegally? Did you witness obstruction of justice and fail to report it? Did you also take, or destroy, notes of conversations with Obama?
”To me, the scandal is what’s in these notes,” said radio host Mark Levin, a Justice Department official under Ronald Reagan.
”It’s a potential felony (to sit on evidence of a crime).”
Partisanship isn’t the only obstacle to investigating a president.
Akerman notes two other complications, drawn from experience. One is the possibility that public testimony taints evidence in a criminal case. In Watergate, Akerman said he worked to gather evidence before a witness testified under immunity in Congress, so it wouldn’t later be dismissed in court.
Second, it’s unclear whether courts would ever hear a case against a sitting president. That’s why Watergate investigators planned to let lawmakers weigh impeachment against Richard Nixon, before proceeding with charges.
”There were a number of things (Nixon) could have been indicted for,” Akerman said, including obstruction and tax evasion.
In the end, Nixon resigned; he was pardoned by successor Gerald Ford.