Trump’s Inner Nixon: Is It Possible To Have a Cover Up Without An Actual Crime?

Below is my column in the Hill Newspaper on the Comey termination and comparisons to the Nixon presidency.  Those analogies deepened this weekend after the President repeated that he thinks that they should just get rid of the daily press briefings that have been such a central part of White House operations for decades.  What is most striking is how, again, the White House has engineered its own undoing.  Many people had called for Comey to be fired, particularly Democrats. However, the timing and manner of the termination has created yet another scandal for the Administration. Only 27 percent of citizens support the decision according to a NBC/Wall Street Journal poll.  The growing credibility crisis has made the appointment of a Special Prosecutor (or even the resurrection of the Independent Counsel Act) a priority for many. While I have been a dissenting voice regarding the need for a Special Prosecutor, the Comey debacle has changed my view.  The public deserves an independent investigation into these allegations and related issues.  Perhaps people will be satisfied with the FBI investigation under a new director, but the last week has been so damaging to public confidence that the need for an independent investigation is obvious. Having said that, I am still unsure of the major crime being investigated under the facts that are currently known.  For the moment, this Administration appears intent of self-incriminating actions in the absence of an actual crime.

Here is the column:

Teddy Roosevelt once quipped, “When they call the roll in the Senate, the senators do not know whether to answer ‘present’ or ‘not guilty.’ ”

It seems this week that presidents can face the same dilemma. President Trump’s obsession with the Russian investigation has been widely taken as proof of his guilt. The night of the firing of FBI Director James Comey, CNN legal analyst Jeffrey Toobin declared that the only explanation was that the investigation was getting too close to the president.

Echoing what has become a mantra in the media, Sen. Patrick Leahy (D-Vt.) declared that Trump’s conduct is “nothing less than Nixonian.” Of course, the difference is that the Nixon scandal cover-up began with an actual crime. The Trump scandal appears to be a cover-up in search of a crime.

History may ultimately be faced with one of the greatest curiosities in presidential politics: how the Trump White House convinced a nation that it was hiding a crime that was never actually committed. Former Director of National Intelligence James Clapper and others have expressly stated that they have seen no evidence of collusion between the White House and the Russians in the election. The focus of the investigation remains the Russian hacking of Clinton campaign emails.

However, that is not likely a crime committed by Trump or his associates. Indeed, no one is likely to seek the indictment of Vladimir Putin for the very same offense committed by our own government in hacking countless foreign accounts, including those of our closest allies like Germany’s Chancellor Angela Merkel.

Thus far, the only clear criminal allegation centers on reporting or disclosure violations by former National Security Advisor Michael Flynn. However, the Foreign Agents Registration Act (FARA) is rarely actually prosecuted. The Justice Department prefers administrative enforcement over criminal prosecution. The result is that there have been only seven prosecutions under FARA since 1966, when the law was revised, and only four such cases in the last decade.

Likewise, the Logan Act (which is often referenced) is a virtual dead letter. Passed in 1799, the act is widely viewed as unconstitutional. It makes it a crime for citizens to intervene in disputes or controversies between the United States and foreign governments. It has never been used to convict a single U.S. citizen and Flynn would have compelling defenses if it were suddenly resurrected. There could be false statement prosecutions to either Congress or federal investigators, but that is hardly worthy of Watergate analogies.

Yet, if there is no “noose closing around the neck” of the president, why does he constantly look like he is playing the perpetual bad guy George Raft in “Background to Danger” who, when asked what he was doing in Moscow, sneered, “We’re gonna cement Russian-American relations.” The irony is that the bizarre conduct this week could be the manifestation of paranoia rather than guilt.

Reports suggest that Trump was irate over the failure of Comey to support him on the Obama wiretapping allegations and to dismiss the allegations in the Russian controversy. Comey had been quoted by sources as saying that Trump was “outside the realm of normal” and possibly “crazy.”

Other sources allege that Trump demanded that Comey assure him of his “loyalty” as a condition of his retaining his position at the FBI. Trump himself admitted that he asked Comey to confirm that he was not a target of the FBI at a dinner where he said Comey was lobbying him to keep his job. Trump insists that Comey assured him that he was not a target of any investigation.

Ironically, if true, Trump finally came up with a bona fide reason to fire Comey. If Comey actually did repeatedly assure Trump that he was not a target, Comey deserved to be fired. It was a grossly improper question for the president to ask and an equally improper question for Comey to answer. Of course, the president’s account would contradict everything that we know about James Comey.

Trump actually embodies a harsher Nixon than Nixon himself — like Nixon without Checkers.  He conveys Nixon’s paranoia without the pet. He tweeted today that “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!”

Where Nixon proclaimed after an election defeat that the media would not “have Nixon to kick around anymore,” Trump seems intent on out-Nixoning Nixon. Friday, he also threatened that “maybe the best thing to do would be to cancel all future ‘press briefings.’ ”

Of course, Trump may not have Checkers but, thus far, he also does not have a crime. He may have achieved the impossible in making a case for a special counsel without evidence of serious criminal conduct on his part.

The irony is that the only way that Trump can now clear his name would be the one thing that he seems most eager to prevent: a new independent investigation. He has succeeded in convincing millions of citizens that he is hiding his guilt. That view is not likely to be changed by conclusions of congressional investigations in the GOP controlled houses or an FBI investigation after he fired its director.

The White House itself has undermined any other path to exoneration for the president. This week, Principal Deputy Press Secretary Sarah Huckabee Sanders stated, “We want [this investigation] to come to its conclusion. We want it to come to its conclusion with integrity. And we think that we’ve actually, by removing Director Comey, taken steps to make that happen.”

In case such statements were not suspicious enough, the White House arranged for Trump to meet with Russian Foreign Minister Sergey Lavrov and Russian Ambassador to the United States Sergey Kislyak in the Oval Office on the day after the termination of Comey.

As the public debated whether Trump was a puppet of the Kremlin, the president had his picture taken in the Oval Office with a grinning Kislyak — the very Russian at the heart of the collusion allegations. Not only did the White House admit that the meeting was held at the request of Vladimir Putin, the pictures of the meeting were taken by the state-run Tass organization because the White House barred U.S. media.

An independent investigation could reveal the evidence of criminal conduct that is so conspicuously missing today. It might also find nothing but a bizarre anomaly: a president who exhibited the most incriminating conduct in history without actually committing a crime.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.