Harvard Law professor Larry Tribe, the leading Constitutional scholar and practitioner of his era, has told Congress to “grow a pair” and impeach Trump. Tribe had already initiated Foreign Emoluments Clause litigation against Trump for his conflicts of interest involving foreign countries and their potential for filling what Tribe calls Trump’s “bottomless money pit.” Tribe now invokes the new evidence that Trump himself revealed of his attempted obstruction of justice with respect to firing James Comey as the occasion to take immediate action.
Tribe is not the first law professor to find Trump impeachable. But Tribe makes clear that this latest problem goes beyond a mere conflict of interest, which is what the Emoluments Clause prohibits. It goes all the way to actual bribery, much in the manner of a mobster. Trump’s own words suggest that he dangled the FBI directorship before Comey in exchange for Comey’s assurance that Trump was exempt from the Russian investigation and Comey’s swearing fealty to Trump rather than to the rule of law. Comey’s continued employment was an implicit quid pro quo. The deal implied out of Trump’s own mouth was: “You obey my will and I will keep you employed as my pet FBI Director.” Trump admitted to discussing such an implied offer three times, and indeed put a gratuitous sentence in his firing letter memorializing the conversations, probably lying in his assertion that Comey had agreed to it by telling Trump he is not under investigation.
Racketeering under RICO is committed by two or more instances of “any act or threat involving … bribery,” among other named crimes, including specifically bribery of a public official “to do or omit to do any act in violation of the lawful duty of such official.” This single incident could expose the whole Trump enterprise to investigation and discovery of other predicate acts involving racketeering crimes such as bribery or extortion of the kind involved in the Emoluments Clause litigation. Comey himself might plausibly bring a Civil RICO suit as a “person injured in his business” by the Trump enterprise. It would not be Trump’s first brush with racketeering charges.
The conversations with Comey that amounted to a bribe, Tribe argues, is itself evidence of an impeachable “high crime or misdemeanor,” far more significant than the speculations about Russian collusion in the 2016 election. Indeed it is important to separate Trump’s attempted influence on Comey from both the “Russian Hacking Fiasco” – for which no credible evidence has yet been made public – and also from the merits of firing James Comey. Trump could be absolutely right about the “Russia thing” being a Democratic “total hoax” and “excuse for having lost the election,” and little more. But this does not affect his attempted bribery of Comey in exchange for his loyalty and his exemption of Trump from investigation.
What is most interesting about this attempted bribe is the way that Trump revealed evidence of the bribe completely gratuitously in a press interview. He said that he was going to fire Comey irrespective of the perfectly good cause that Deputy Attorney General Rod J. Rosenstein provided in his Memorandum to the Attorney General dated May 9, 2017. The Memorandum had been forwarded to Trump with some superfluous boilerplate added by Attorney General Sessions, which seemed inconsistent with his promised recusal. But the Memorandum was formally accepted by the first and operative paragraph of Trump’s firing letter. Unfortunately the second paragraph irrelevantly included Trump’s equivalent of an exculpatory tweet referring to, and probably lying about the connection between the firing and the Russian investigation. In his press interview, Trump again contested his statement about firing Comey irrespective of the grounds charged in the Memorandum by again making reference to the Russian investigation.
Trump’s actual reason for firing was, according to his own words, not those stated in the original Memorandum, and more or less properly accepted by Trump’s letter. That reason was Comey’s blatantly unprofessional “handling of the conclusion of the investigation of Secretary Clinton’s emails.” It must be emphasized that, as detailed elsewhere, Rosenstein’s analysis of the errors Comey made presented more than adequate cause to fire Comey, even if it did not include all of the available reasons. Indeed Rosenstein’s reasons were so powerful that it would have been improper not to fire Comey for playing politics by usurping power he did not have. So to say that Trump obstructed justice in his communications with Comey is not to say that Trump was wrong in firing Comey. Trump was merely stupid in talking about his reasons for firing Comey which alluded back to conversations that amounted to bribery rather than adhering to the perfectly good reasons provided to him in Rosenstein’s Memorandum. Rosenstein is Comey’s boss and had every right to clear him out soon after Rosenstein was sworn in as Deputy.
There is no rational excuse for Trump to have undermined the mostly proper manner in which the complaint against Comey reached his desk by suggesting that he was going to fire Comey for entirely other reasons. Any connection to the Russian investigation would have been mere partisan speculation if Trump had only kept his mouth shut and stuck with the program. His puerile impetuousness gained him nothing while it created what Tribe would like to see included in Articles of Impeachment, a demand that will doubtless grow. Tribe notes: “Obstruction of justice was the first count in the articles of impeachment against Nixon and, years later, a count against Bill Clinton.”
Another tactical disadvantage resulting solely from Trump fatuously flapping his gums is that it might well also require appointment of an independent prosecutor to investigate the attempted bribe of Comey. Tribe explains that, since Rosenstein and Sessions 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 the attempted bribery matter. Since they can both be called as principal witnesses it is elementary ethics that they cannot also serve in the chain of command of prosecutors in the case.
Sessions was already supposedly recused from dealing with all Trump campaign matters, including the Russian investigation implicated by Trump but not by the Memorandum. Now Rosenstein must also be recused from the Comey bribe matter leaving no plausible alternative but a special prosecutor to pursue the obstruction of justice charge. Rosenstein had already leaked his view that no special prosecutor is needed for the Russian investigation. But a different calculation might apply to the Comey bribe, which Tribe suggests cannot be separated from the Russian investigation.
Comey will get to be a “showboat … grandstander” at least one more time to reveal whether he will implicate Trump as not just “crazy,” but also as a racketeer. For impeachment and even prosecution Trump’s own words only need confirmation that Comey understood Trump’s blandishments as an attempted bribe. This is Comey’s China shop if he wants to take the bull down.
The larger issue involved here is not even Trumps’ record of daily impeachable offenses, to be expected from any would-be authoritarian. It is rather his rank incompetence. He cannot carry out the simple executive act of firing a highly flawed public official for manifestly good cause without committing a senseless criminal act in the process. This suggests the level of incompetence with which he will conduct other public matters. Tribe sees it as Trump’s authoritarian tendency to violate the law. Either way, leaving Trump unsupervised is clearly dangerous. Tribe hopes this will the issue of the 2018 election.