Can Donald Trump Pardon Himself? Can He Be Indicted While Still In Office?

It has become so widely accepted that the investigations into Donald Trump’s business dealings are very likely to reveal criminal activities that subjects including whether Trump can pardon himself and whether he can be indicted while in office are now being discussed. While many disagree, Donald Trump claims he does have the power to pardon himself. The New York Times reports:

President Trump on Saturday asserted the “complete power to pardon” relatives, aides and possibly even himself in response to investigations into Russia’s meddling in last year’s election, as he came to the defense of Attorney General Jeff Sessions just days after expressing regret about appointing him.

Mr. Trump suggested in a series of early morning messages on Twitter that he had no need to use the pardon power at this point but left the option open. Presidents have the authority to pardon others for federal crimes, but legal scholars debate whether a president can pardon himself. Mr. Trump’s use of the word “complete” seemed to suggest he did not see a limit to that authority.

“While all agree the U.S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us,” he wrote on Twitter. “FAKE NEWS.”

The Washington Post reported in recent days that the president and his advisers had discussed pardons as a special counsel intensifies an investigation into whether associates of Mr. Trump and his campaign conspired with Russia to intervene in the 2016 presidential campaign.

Many Constitutional experts and lawyers disagree with Donald Trump. Laurence Tribe, Professor of Constitutional Law at Harvard Law School, Richard Painter,  a law professor at the University of Minnesota and chief White House ethics lawyer for George W. Bush from 2005 to 2007, and Norman Eisen, a senior fellow at the Brookings Institution and chief White House ethics lawyer for Barack Obama from 2009 to 2011, wrote an op-ed in The Washington Post entitled, No, Trump can’t pardon himself. The Constitution tells us so:

Can a president pardon himself? Four days before Richard Nixon resigned, his own Justice Department’s Office of Legal Counsel opined no, citing “the fundamental rule that no one may be a judge in his own case.” We agree.

The Justice Department was right that guidance could be found in the enduring principles that no one can be both the judge and the defendant in the same matter, and that no one is above the law.

The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself…

The Constitution’s pardon clause has its origins in the royal pardon granted by a sovereign to one of his or her subjects. We are aware of no precedent for a sovereign pardoning himself, then abdicating or being deposed but being immune from criminal process. If that were the rule, many a deposed king would have been spared instead of going to the chopping block…

President Trump thinks he can do a lot of things just because he is president. He says that the president can act as if he has no conflicts of interest. He says that he can fire the FBI director for any reason he wants (and he admitted to the most outrageous of reasons in interviews and in discussion with the Russian ambassador). In one sense, Trump is right — he can do all of these things, although there will be legal repercussions if he does. Using official powers for corrupt purposes — such as impeding or obstructing an investigation — can constitute a crime.

But there is one thing we know that Trump cannot do — without being a first in all of human history. He cannot pardon himself.

While it is commonly believed that Donald Trump would not be indicted until out of office, The New York Times reports that the commonly held view that a president cannot be indicted while in office is wrong:

A newfound memo from Kenneth W. Starr’s independent counsel investigation into President Bill Clinton sheds fresh light on a constitutional puzzle that is taking on mounting significance amid the Trump-Russia inquiry: Can a sitting president be indicted?

The 56-page memo, locked in the National Archives for nearly two decades and obtained by The New York Times under the Freedom of Information Act, amounts to the most thorough government-commissioned analysis rejecting a generally held view that presidents are immune from prosecution while in office.

“It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties,” the Starr office memo concludes. “In this country, no one, even President Clinton, is above the law.”

Bill Clinton was impeached, but was neither convicted in the Senate nor indicted while in office. While the investigations are at an early stage, it does appear likely that Donald Trump has committed acts far more significant than lying about an affair, and these considerations regarding indictment very well could wind up applying to him.

Investigations Of Trump Expand Along With Speculation That He Will Repeat Saturday Night Massacre

News reports discussed two avenues of investigation being pursued regarding Donald Trump. One of them, his business ties, appears to be of value. The other is of more questionable value–fake news on Facebook.

Bloomberg is reporting that Robert Mueller is expanding the investigation into Trump’s business ties:

The U.S. special counsel investigating possible ties between the Donald Trump campaign and Russia in last year’s election is examining a broad range of transactions involving Trump’s businesses as well as those of his associates, according to a person familiar with the probe.

FBI investigators and others are looking at Russian purchases of apartments in Trump buildings, Trump’s involvement in a controversial SoHo development in New York with Russian associates, the 2013 Miss Universe pageant in Moscow and Trump’s sale of a Florida mansion to a Russian oligarch in 2008, the person said.

The investigation also has absorbed a money-laundering probe begun by federal prosecutors in New York into Trump’s former campaign chairman Paul Manafort.

The Wall Street Journal has further information related to the investigation of Paul Manafort:

Mr. Manafort, a Republican political consultant, spent years working for a pro-Russia party in Ukraine. He served as Mr. Trump’s presidential campaign manager for roughly three months in 2016 before resigning.

New York Attorney General Eric Schneiderman and Manhattan District Attorney Cyrus Vance Jr. also are investigating Mr. Manafort’s real-estate transactions, The Wall Street Journal has reported, with both offices examining his dealings for possible money-laundering and fraud. Messrs. Schneiderman and Vance are Democrats.

Mr. Manafort has spent and borrowed tens of millions of dollars in connection with properties in the U.S. over the past decade, including a Brooklyn, N.Y., townhouse and California properties being developed by his son-in-law, the Journal has reported.

The nature of the investigation, along with the contempt for law enforcement expressed by Donald Trump in an interview with The New York Times, has many predicting that Trump will wind up firing Paul Manafort in a scenario reminiscent of Richard Nixon’s Saturday Night Massacre. Periodically I receive comments that such criticism of Trump comes from out of touch left wingers, so I will note that the conservative National Review also predicts, Yeah, Trump Is Probably Going to Fire Robert Mueller.

While I hope to see Manafort pursue investigations into the business dealings of Donald Trump and his associates, I question whether Congressional investigators will really find out much of value in an investigation of fake news and Facebook. CNN reports:

Virginia Sen. Mark Warner, the top Democrat on the Senate intelligence committee, met with Facebook officials in California more than a month ago as part of his committee’s investigation into potential collusion or election interference, and he’s convinced the company can explain whether anyone from the Trump campaign helped Russians boost fake news articles targeting Democratic presidential nominee Hillary Clinton. Warner is testing the theory popular among Democratic operatives that Russia was behind spikes in fake news that were anti-Clinton and that Russia had help targeting those articles from US political operatives…

At the core of Warner’s questioning is a theory among Democratic operatives and former top-level Clinton campaign staff that Russia had help from domestic political operatives to micro-target fake news articles. No evidence has been uncovered to prove that theory.

Last month, Senate intelligence staff interviewed Brett Horvath, a social media technology expert who argues it’s possible that Russian operatives got political data that could then be used for successfully micro-targeting swing voters on Facebook.

“Facebook has all the data that could prove this is happening or not happening, that’s the starting point,” Horvath, a veteran Democratic political operative, told CNN.

The key line above is, “No evidence has been uncovered to prove that theory.”

There certainly was fake news spread during the campaign, as there also was against Barack Obama and John Kerry in their presidential campaigns. Only the Clinton campaign has gone so far as to blame Russia for this, with reporters covering the campaign to write the book Shattered reporting that Clinton developed the strategy of blaming Russia and others for her loss within twenty-four hours of losing, failing to take responsibility for her own mistakes. Whether or not the fake stories being spread came from Russia, they did far less harm to Clinton than the damage caused by her violation of State Department rules (as verified by the State Department Inspector General), and then repeatedly being caught lying about the matter. The truth was far more damaging than fiction.

The questionable business ties involving Donald Trump and others in his family and campaign appears to be worth investigating, but I bet it will be a mistake to divert resources from the more important issues to pursue partisan fantasies. If Democrats rely upon such weak attacks they risk allowing the Republicans to survive the actual Trump scandals.

Clinton’s Popularity Continues To Decline, Possibly Affecting Democratic Voter Enthusiasm

Democrats lead in the generic Congressional polls, but there are warning signs for Democrats. A new Washington Post-ABC News poll shows that by a 52 to 38 percent margin voters want Democrats to control Congress to be a check on Trump. However, 65 percent of Republicans and GOP-leaning adults say they are “almost certain to vote,” only 57 percent of Democrats and Democratic-leaning voters say they are likely to vote.

There are probably many reasons why Democratic-leaning voters are less likely to vote, but the damage to the Democratic brand caused by the nomination by of Hillary Clinton in 2016 cannot be underestimated. For those who have voted Democratic in protest against the policies of the Bush administration, it was a great disappointment to see the Democrats nominate a candidate with essentially the same agenda. The undemocratic manner in which the party establishment essentially picks the nominees, despite the charade of a primary system, creates further disenchantment with the party. As bad a choice as Donald Trump was, at least he was nominated due to beating the establishment candidates in a year in which many voters from both parties did not want another Bush/Clinton, with the Republican establishment accepting the decision of its voters.

Normally losing candidates do better in the polls after the election. With Donald Trump doing such a terrible job and dropping in the polls, if she followed traditional patterns Hillary Clinton should be seeing a boost in her support. Instead a Bloomberg National Poll shows that Clinton’s support has declined and that she is even more unpopular than Donald Trump.

This is not based upon opposition to the party in general  as Barack Obama and Joe Biden’s popularity has increased since they left office, and Bernie Sanders has become the most popular politician in the country.

The poll doesn’t provide reasons for Clinton’s further decrease in popularity. Just losing to a candidate as terrible as Donald Trump further highlights how weak a candidate she was, with reports such as those in Shattered providing further confirmation. I would also bet that many people expressed positive views of Clinton in the context of an election campaign against Donald Trump, but now that the campaign is over have no reason to hide their distaste for her.

Clinton’s actions following her loss give additional reasons for an already unpopular politician to now receive even less support. Her frequent statements blaming others for her loss, while downplaying the serious mistakes she made, shows her lack of character. While her far right wing views on civil liberties has received too little attention, her call for Congressional action against fake news, which amounts to censorship of material critical of her, is alarming in light of her long standing support for restricting freedom of speech and dissent.

Clinton’s anti-Russia hysteria, going well beyond what has been proven in the investigations to date, might be fooling some Democratic partisans, but is alarming to others. Clinton does not benefit politically from the revelations involving the Trump administration and Russia when fear of world war with Russia was a motivating factor for some who voted for her. A recent study suggests that her ultra-hawkish views might have played a significant role in her loss. News out of Syria provides further reason to oppose Clinton, considering her push for greater interventionism, even to the point of risking direct conflict with Russia.

Clinton has been out of step with more liberal voters on other issues, including economics, trade, the drug war, and health care policy. While many Democratic leaning voters support a single-payer system (as promoted by people including Bernie Sanders and Al Gore), Hillary Clinton also showed she was out of step in campaigning against  Medicare-for-all.

It is hard for many independents, along with principled Democrats, to be enthusiastic about the Democrats after nominating a candidate which so many dislike for good reason. The attacks on liberals and progressives opposing Clinton from partisan Democrats, showing a gross lack of respect for the basic principles of democracy in thinking that those who oppose her had some obligation to vote for her, further alienates potential Democratic voters. If Democrats are to expand their base and win elections, they need to show more respect for the views of those who oppose their move to the right.

Democrats have done poorly in 2010, 2014, and again in 2016 after moving to the right and running as a Republican-lite party. Bloomberg reports that Democrats are again looking at promoting more conservative candidates in 2018, failing to learn that voters see no reason to turn out to vote for candidates who do not stand for anything. The Democrats should do well in 2018 in response to the Trump disaster, but they also appear capable of pulling defeat again out of what should be sure victory.

Shepard Smith Speaks Out About All The Lies From The Trump Administration

So many lies have come from the Trump administration that even an anchor at Fox is starting to complain about all the lies. Shepard Smith had this to say about the various stories being told about the meeting between Donald Trump, Jr. and Russians when speaking with Chris Wallace:

Fox News can now confirm new, more — Donald Trump Jr., Jared Kushner, Paul Manafort, the lawyer from Russia, the interpreter, this new guy we found out about today, and a mystery person. John Roberts confirms there was an eighth person in that meeting. We don’t know, there may have been more, but there was an eighth. Jared Kushner filled out his form, I think it’s an F-86, saying who he’d met with and what he had done.

Very important stuff, you can go to prison for messing it up, you know, intentionally. He went back and added 100 names and places. None of these people made it. It’s still not — we’re still not clean on this, Chris.

It’s — if there’s nothing there and that’s what they tell us, they tell us there’s nothing to this and nothing came of it, there’s a nothing burger, it wasn’t even memorable, didn’t write it down, didn’t tell you about it, because it wasn’t anything so I didn’t even remember it, with a Russian interpreter in the room at Trump Tower.

If all of that, why all of these lies? Why is it lie after lie after lie? If you’re clean, come out clean. You know, my grandmother used to say “When first we practice to — oh, what a tangled web we weave when first we practice to deceive.”

The deception, Chris, is mind boggling. And there are still people out there who believe we’re making it up, and one day they’re going to realize we’re not, and look around and go, “Where are we? And why are we getting told all these lies?”

Shepard Smith has varied from the hard line pro-Republican viewpoint at Fox at times, but it is also rare to see such outright acknowledgement about government lying including using the L-word. The Fix is calling this a “Cronkite moment” referring to when Walter Cronkite spoke out about the lies being told about the United States involvement in Vietnam.

This is a bit of an exaggeration. Walter Cronkite speaking out against the war is often seen as precipitating a turning point in public perception of the war. The majority of people in the nation is already opposed to Donald Trump and realizes he is a liar. However it would be more comparable if this leads to a change in perception of Donald Trump among Fox viewers.

Democratic Congressman Files Article Of Impeachment Against Donald Trump

It was only a matter of when. A California Congressman has introduced an article of impeachment against Donald Trump. The Hill reports:

Rep. Brad Sherman (D-Calif.) formally introduced an article of impeachment against President Trump on Wednesday that accuses the president of obstructing justice during the federal investigation of Russia’s 2016 election interference.

This is the first time a lawmaker has offered an impeachment article against Trump, and it comes as Democrats have debated whether it is politically wise to press the case for impeachment at this time…

In filing his impeachment article, Sherman argues that Trump’s abrupt firing of James Comey as FBI director in May amounts to obstructing justice and “high crimes and misdemeanors” amid the probes of whether Trump’s campaign colluded with the Russian government to swing the election…

He cites Comey’s allegations that Trump pressured him to drop the FBI’s investigation into ousted former White House national security adviser Michael Flynn, as well as Trump’s shifting story on why he fired Comey.

“In all of this, Donald John Trump has acted in a manner contrary to his trust as president and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States. Wherefore, Donald John Trump, by such conduct, warrants impeachment and trial, and removal from office,” the article of impeachment states.

So far only one other member of Congress, Al Green of Texas, is supporting the action.

Of course it is rather early and the number of members supporting impeachment could increase after the current investigations, which are still in an early stage, are concluded. The firing of James Comey does certainly appear to have been done in order obstruct his investigation. At present there is far further evidence of a cover-up on the part of Trump and members of  his administration than of the actual crime. While it is possible that evidence of collusion with Russia to swing the election will be uncovered during the course of the investigation, there is not yet clear evidence that Donald Trump did collude with Russia.

I have suspected that, at least, Trump was acting to protect members of his administration, and that any crimes very likely involved their financial dealings. The recent revelation of Donald Trump Jr.’s meeting with an attorney close to the Russian government, based upon an offer of information about Hillary Clinton, along with actions of Jared Kusnher, suggest that Donald Trump might have engaged in obstruction of justice to protect members of his family, along with members of his campaign staff and administration.

In order for impeachment to succeed it would require a simple majority vote in the House, but also require a two-thirds vote in the Senate to remove the president. Therefore it would require bipartisan support to remove Trump regardless of how well the Democrats do in the 2018 election. So far only two presidents have ever been impeached, including Bill Clinton, and technically no presidents have ever been removed from office by this route. Richard Nixon was forced to resign when his impeachment and conviction appeared inevitable.

An alternative mechanism under the 25th Amendment could also be used to remove Trump if he could be declared unfit to perform the duties of the presidency. While a quicker mechanism, this would be even more difficult to achieve as it would have to be initiated by the vice president and requires the support of two-thirds of each House should the president contest the action.

Investigate Trump, But Hold Off On Claims Of Treason

The information recently released about the meetings between Donald Trump, Jr. and others in the Trump campaign, along with the emails which have been released, show signs of violation of election laws. This is yet another in a long string of meetings which members of the Trump campaign have failed to disclose. This also gives justification for investigations of collusion between Russia and the Trump campaign, but the actual significance of this remains unclear considering that the meeting was with a lawyer who now says she never had any information on Clinton.

This opens additional avenues for investigation for both Robert Mueller and Congress. Although Sarah Huckabee Sanders denied that Donald Trump was aware of the meeting at today’s press briefing, I would bet that Mueller will be looking into this.

A huge problem with the 24/7 stream of news and constant discussion on social media is the temptation to come to conclusions immediately. We certainly need to wait and see what comes out of the investigations. That said, I have suspected from the start of this affair that Donald Trump has been trying to obstruct the Russia investigation to protect members of his campaign (along with possibly covering up financial improprieties). With Donald, Jr involved (along with Jared Jushner), this certainly raises the stakes.

As Shattered revealed, Hillary Clinton latched onto the Russia story within twenty-four hours of losing the election to place blame for her loss on others. Tim Kaine and other are now raising questions of whether Trump committed treason. Whatever crimes might have been committed by Donald, Jr. and others, treason does not appear to apply. This is discussed further at Axios and Vox. From Vox:

The revelation that Donald Trump Jr. was offered incriminating information about Hillary Clinton as “part of Russia and its government’s support for Mr. Trump,” and that Junior enthusiastically accepted and pursued the offer, is shocking. What Trump Jr. did could very well be a crime under federal campaign finance law.

But some politicians and commentators are raising the possibility that he committed an even graver offense: treason. “We’re now beyond obstruction of justice,” US Sen. and former Democratic vice presidential nominee Tim Kaine said. “This is moving into perjury, false statements, and even into potentially treason.” Richard Painter, President George W. Bush’s White House ethics lawyer, declared on MSNBC that Trump Jr.’s behavior “borders on treason” even before the worst revelations about the incidents came out. Rep. Seth Moulton (D-MA) commented, “If this isn’t treasonous, I’m not sure what is.” According to Merriam-Webster, searches for the definition of “treason” are on the upswing.

This is nonsense. Whatever Trump Jr. did, it’s definitely not treason. Treason is a very specific crime with a definition set forth in the Constitution that Trump Jr’s conduct doesn’t come close to meeting, for one simple reason: The US is not at war with Russia…

What Trump Jr. did was outrageous. But that doesn’t make it treason, and it’s irresponsible to keep throwing the term around willy-nilly.

Of course many Republicans have been guilty in throwing around the term, often with even less justification, when attacking Democrats.

White House Plans Announcement On Whether Comey Tapes Really Exist

Donald Trump and James Comey have given a different account of what happened when the two met. Trump has suggested that he has tapes to verify his side of the story while Comey has said, “Lordy, I hope there are tapes” when the topic came up during his Congressional testimony.

This is just one aspect of the Russia investigations which have raised comparisons to Watergate.

The White House has been vague as to whether such tapes actually exist, but I noted this item from the Associated Press earlier today:

The White House says President Donald Trump is expected to make an announcement this week on whether any recordings exist of his private conversations with former FBI Director James Comey.

White House press secretary Sean Spicer says he expects an announcement “this week” on the possibility of tapes. Trump fired Comey in May and has suggested — but refused to confirm — that he may have tapes of his discussions with Comey. The FBI was investigating Russia’s meddling in the 2016 presidential election and possible contacts with Trump campaign associates.

The House Intelligence Committee has asked White House counsel Don McGahn to provide an answer to the ongoing question about tapes by Friday.

It is hard to believe that the White House would actually release any tapes if incriminating, and risk suffering the same fate as Richard Nixon. In the unlikely event that there are tapes showing that it is Comey who was lying, I would expect Trump to be rushing to release them. At this time there is no evidence of collision between Trump and Russia to affect the election but there is considerable suggestion of obstruction of justice on his part. Tapes which were to show that Trump was telling the truth would take a lot of wind out of the investigations, but it is rather doubtful that this will be the case.

More Legal Problems For Donald Trump

Donald Trump’s failure to follow the Constitution is causing him further legal problems. He is now facing a lawsuit for violating the emoluments clauses of the Constitution in accepting payments from foreign governments. The Washington Post reports:

Attorneys general for the District of Columbia and the state of Maryland sued President Trump on Monday, alleging that he has violated anti-corruption clauses in the Constitution by accepting millions in payments and benefits from foreign governments since moving into the White House.

The lawsuit, the first of its kind brought by government entities, centers on the fact that Trump chose to retain ownership of his company when he became president. Trump said in January that he was shifting his business assets into a trust managed by his sons to eliminate potential conflicts of interests.

The lawsuit, a signed copy of which Racine and Frosh provided to The Washington Post on Sunday night, alleges “unprecedented constitutional violations” by Trump. The suit says Trump’s continued ownership of a global business empire has rendered the president “deeply enmeshed with a legion of foreign and domestic government actors” and has undermined the integrity of the U.S. political system.

Trump’s Restraint In Tweeting During Comey Testimony Did Not Last Long

One of the biggest surprises on the day James Comey testified before Congress is that Donald Trump’s lawyers were temporarily able to dissuade him from going ahead and responding on Twitter as he had previously planned. It had to be quite difficult considering how Comey was saying that Trump’s stated reasons for lying “were lies, plain and simple.”

After staying quiet during the testimony, Trump ultimately tweeted: “Despite so many false statements and lies, total and complete vindication…and WOW, Comey is a leaker!”

Trump is threatening legal action against Comey for releasing memos concerning the content of their meetings. Philip Bump looked into the legality of Trump retaliating against Comey:

President Trump’s declaration that the Thursday testimony of former FBI director James B. Comey was a “total and complete vindication” despite “so many false statements and lies” was the sort of brashly triumphant and loosely-grounded-in-reality statement we’ve come to expect from the commander in chief. It was news that came out a bit later, news about plans to file a complaint against Comey for a revelation he made during that Senate Intelligence Committee hearing meeting, that may end up being more damaging to the president.

As the news broke, I was on the phone with Stephen Kohn, partner at a law firm focused on whistleblower protection. We’d been talking about where the boundaries lay for Comey in what he could and couldn’t do with the information about his conversations with the president. Kohn’s response to the story about Kasowitz, though, was visceral.

“Here is my position on that: Frivolous grandstanding,” he said. “First of all, I don’t believe the inspector general would have jurisdiction over Comey any more, because he’s no longer a federal employee.” The inspector general’s job is to investigate wrongdoing by employees of the Justice Department, which Comey is no longer, thanks to Trump — though the IG would have the ability to investigate an allegation of criminal misconduct.

“But, second,” he continued, “initiating an investigation because you don’t like somebody’s testimony could be considered obstruction. And in the whistleblower context, it’s both evidence of retaliation and, under some laws, could be an adverse retaliatory act itself.”

In other words, Comey, here, is an employee who is blowing the whistle, to use the idiom, on his former boss. That boss wants to punish him for doing so. That’s problematic — especially if there’s no evidence that Comey actually violated any law that would trigger punishment…

“The constitutional right to go to the press with information on matters of public concern, as long as you’re not doing it in a way that will bring out classified information,” Kohn said, “the reason why that is protected constitutionally is that the courts — including the U.S. Supreme Court — have ruled that the public has a constitutional right to hear this information.” In other words, it’s constitutionally protected speech.

Trump now says he is willing to testify under oath about Comey’s statements. Bill Clinton was impeached for perjury related to relatively minor falsehoods unrelated to his performance as president. Any false statements made by Trump under oath with regards to the firing of the FBI Director should be an even more serious matter.

Comey’s testimony did not provide any evidence of collusion between Trump and Russia to alter the results of the election as many Democrats claim occurred, but did provide further suggestion of obstruction of justice. BBC News provided this analysis:

In one of those exchanges, the president said he “hoped” Mr Comey could “find his way” to dropping an investigation into then-national security adviser, Michael Flynn, a Trump ally who was under scrutiny over his ties to Russia.

We knew that already – Mr Comey made details of the meeting public several weeks ago – and Committee Republicans sought on Thursday to paint it as an innocent exchange: “I hope” was not an instruction, they said.

The former FBI director declined to offer his own opinion at the hearing on whether the president was attempting to obstruct justice, saying only that he found their exchange “very disturbing”. Whether the president had broken the law would be a matter for special counsel investigator Robert Mueller to decide, he said.

So what’s changed? Alex Whiting, a Harvard Law professor and former federal prosecutor, said the oral testimony gave new and legally significant insight into how Mr Comey interpreted the president’s words in the moment.

“The critical aspect of an obstruction case is assessing the intent of the speaker and whether it was corrupt,” Mr Whiting said. “People communicate with much more than words, and some of the best evidence for what a speaker meant can be how the speaker was understood at the time.”

Mr Comey’s testified on Thursday that he clearly understood Mr Trump to be pushing him to drop the inquiry. We also heard for the first time that the president cleared the room before making the remarks, removing even Mr Comey’s boss, the attorney general.

Added to that, Mr Comey, who has a long history of high-profile legal positions and who took meticulous notes directly after his meetings with the president, was a “dream witness”, Mr Whiting said. “I think if you take together his written and oral testimony together, he has now made a prima facie case of obstruction of justice.

Interpretation of the hearings comes down to whether you believe James Comey or Donald Trump. The suggestion that Trump might have tapes certainly did not scare Comey. The quote of the day out of the hearings was Comey saying:  “Lordy, I hope there are tapes.” If there are, my bet is that any tapes made by Donald Trump will be as devastating to him as the tapes made by Richard Nixon.

Matt Taibbi On How The Democrats Need A New Message

Matt Taibbi used the victory by Greg Gianforte in Montana to review what is wrong with the Democratic Party. If this was just a loss in Montana it could easily be ignored as a case of people in a deep red state voting for party regardless of how awful the candidate was. The real message is how often the Democrats have lost:

The electoral results last November have been repeated enough that most people in politics know them by heart. Republicans now control 68 state legislative chambers, while Democrats only control 31. Republicans flipped three more governors’ seats last year and now control an incredible 33 of those offices. Since 2008, when Barack Obama first took office, Republicans have gained somewhere around 900 to 1,000 seats overall.

There are a lot of reasons for this. But there’s no way to spin some of these numbers in a way that doesn’t speak to the awesome unpopularity of the blue party. A recent series of Gallup polls is the most frightening example.

Unsurprisingly, the disintegrating Trump bears a historically low approval rating. But polls also show that the Democratic Party has lost five percentage points in its own approval rating dating back to November, when it was at 45 percent.

The Democrats are now hovering around 40 percent, just a hair over the Trump-tarnished Republicans, at 39 percent. Similar surveys have shown that despite the near daily barrage of news stories pegging the president as a bumbling incompetent in the employ of a hostile foreign power, Trump, incredibly, would still beat Hillary Clinton in a rematch today, and perhaps even by a larger margin than before.

Tabbi next ran through a long list of excuses the Democrats give for losing and correctly dismissed them:

The unspoken subtext of a lot of the Democrats’ excuse-making is their growing belief that the situation is hopeless – and not just because of fixable institutional factors like gerrymandering, but because we simply have a bad/irredeemable electorate that can never be reached.

This is why the “basket of deplorables” comment last summer was so devastating. That the line would become a sarcastic rallying cry for Trumpites was inevitable. (Of course it birthed a political merchandising supernova.) To many Democrats, the reaction proved the truth of Clinton’s statement. As in: we’re not going to get the overwhelming majority of these yeehaw-ing “deplorable” votes anyway, so why not call them by their names?

But the “deplorables” comment didn’t just further alienate already lost Republican votes. It spoke to an internal sickness within the Democratic Party, which had surrendered to a negativistic vision of a hopelessly divided country.

Things are so polarized now that, as Georgia State professor Jennifer McCoy put it on NPR this spring, each side views the other not as fellow citizens with whom they happen to disagree, but as a “threatening enemy to be vanquished.”

The “deplorables” comment formalized this idea that Democrats had given up on a huge chunk of the population, and now sought only to defeat and subdue their enemies.

Many will want to point out here that the Republicans are far worse on this score. No politician has been more divisive than Trump, who explicitly campaigned on blaming basically everyone but middle American white people for the world’s problems.

This is true. But just because the Republicans win using deeply cynical and divisive strategies doesn’t mean it’s the right or smart thing to do.

After further discussion, Taibbi got to his main argument that Democrats have no message other than to attack Republicans:

They’re continuing, if not worsening, last year’s mistake of running almost exclusively on Trump/Republican negatives. The Correct the Record types who police the Internet on the party’s behalf are relentless on that score, seeming to spend most of their time denouncing people for their wrong opinions or party disloyalty. They don’t seem to have anything to say to voters in flyover country, except to point out that they’re (at best) dupes for falling for Republican rhetoric.

But “Republicans are bad” isn’t a message or a plan, which is why the Democrats have managed the near impossible: losing ground overall during the singular catastrophe of the Trump presidency.

The party doesn’t see that the largest group of potential swing voters out there doesn’t need to be talked out of voting Republican. It needs to be talked out of not voting at all. The recent polls bear this out, showing that the people who have been turned off to the Democrats in recent months now say that in a do-over, they would vote for third parties or not at all.

This is a far more realistic look at politics than we saw from Hillary Clinton last week when she called third party voters crazy, as she repeated her long list of excuses for losing. Personally I think it would have been far crazier to vote for a corrupt warmonger like Clinton or a xenophobic racist like Trump than to vote based upon principle for a third party.

Clinton is the most obvious example of a politician running with no message, beyond her gender and claims that it is her turn. This was most clearly seen at the end of the race, when she finally realized her mistake of not campaigning in states like Michigan where she was vulnerable. When Clinton finally realized at the last minute that she was in trouble, both candidates started advertising heavily. Trump’s ads contained promises of jobs while Clinton’s ads attacked Trump’s character without giving any good reasons to vote for her. Even if Trump’s promises lacked substance, it should come as no surprise that his message was more effective.

Clinton’s entire candidacy highlighted how the Democrats have no message and stand for nothing these days. Many people voted for the Democrats because of opposition to the policies of George W. Bush. Now the Democrats were running a candidate who backed all the worst features of the Bush agenda, especially support for military interventionism and a hostility towards government transparency. In 2007 Clinton attacked members of the Bush administration saying, “Our Constitution is being shredded” over their support for the surveillance state and use of private email. Now we had Hillary Clinton spending over a year lying about her own violations of policy written to promote transparency and mocking freedom of speech. Wikileaks even revealed how little difference there was on economic views between Hillary Clinton and Jeb Bush.

Democrats have been repeatedly losing by running as a Republican-lite party and refusing to stand for anything. Democratic rules since the loss by George McGovern have been rigged to support a more conservative candidate, and in 2016 the Democrats further intervened to clear the field for Clinton. The irony is that rules initially written with the intent of providing winning candidates gave them a candidate so bad that she could not even beat Donald Trump, and were used to prevent the nomination of a surprise candidate who showed he could win. Democrats failed to understand how the world has changed since 1972, and that the old left/right linear political spectrum no longer applies. At least Bernicrats now have some victories on the local level which are showing that a Democrat with a message does have a chance of beating Republicans.