According to senior government officials, as reported by the Washington Post, Trump’s disclosure to the Russians “jeopardized a critical source of intelligence on the Islamic State” and “had been provided by a U.S. partner through an intelligence-sharing arrangement considered so sensitive that details have been withheld from allies and tightly restricted even within the U.S. government.” Moreover, because of the nature of the information President Trump told the Russians, it was obvious that the source of the information was Israel—a fact subsequently confirmed in various public reports. “This is code information,” a U.S. official told the Post, using terminology that refers to one of the highest classification levels used by American spy agencies. Trump “revealed more information to the Russian ambassador than we have shared with our own allies.” The source of the information, Israel, would therefore have reason to mistrust intelligence sharing with Trump and the United States in the future, clearly to the detriment of U.S. national security.
Conclusion: Beyond Mental Disability, the Absence of Fundamental Human Values
Put aside whether Donald Trump appears to have a mental impairment that can be characterized as “malignant narcissism.” What we call his personality pattern is not important. The only way the Twenty-Fifth Amendment could be invoked—considering the need under the wording of the amendment to obtain the support of Vice President Mike Pence, a man who if nothing else has shown blind loyalty to President Trump—will be if substantial majorities of the American people are genuinely fearful of or repulsed by Trump’s personal characteristics.
Each day, each week, we have seen Donald Trump say and do things that frighten increasing numbers of Americans. His approval ratings in his first year are the lowest in the history of the presidency. By September 2017, he had shown significant deterioration in approval ratings in the heart of his Republican base—rural white men without college degrees. Given the experience in the first year of his presidency, it is likely that each week, sometimes each day, Trump will make statements or unilateral decisions that will strike fear into more and more Americans. At some point, one might expect, a critical mass of that fear will overcome Washington on both sides of the aisle, and Vice President Pence himself, not to mention a majority of the cabinet, may act to preserve America from a dire threat that they and the American people perceive if Donald Trump continues as president.
If and when we reach this point it will be a traumatic event for the American people.
* * *
I hope that this epilogue is not read as a definite recommendation that Donald Trump be impeached as president or that he lacks the mental stability and judgment to discharge his duties and powers as president. At times, the words used strongly suggest that impeachment and/or removal under the Twenty-Fifth Amendment are worth serious consideration once all the evidence is examined. I still remain presumptively opposed to removal unless it is a last resort. Yet President Trump has clearly not taken seriously his oath of office, which includes a commitment to being transparent and ethical, and acting as a fiduciary to the American people. Most important of all, as president, he should not be allowed to favor a hostile power over America or urge a foreign power to interfere in our democracy, even if it helps him get elected. And his conduct and decisions at times suggest a serious mental impairment.
Whether the evidence shows that President Trump or anyone in his family or campaign was involved in helping, coordinating, colluding with—whatever the word—the Russians remains to be seen. But one issue is not in dispute: America cannot allow a president to continue in office unless he states unequivocally that Russia interfered in our presidential election to help him, that he regards that interference as a hostile act on the borderline of an act of war, and that he favors continuing—indeed, increasing—economic sanctions and political and international sanctions against the Russian government for that meddling.
Whether to decide to impeach and remove President Trump cannot be clear until all the evidence is fully and fairly examined, giving Trump due process and the right to present his own evidence and rebuttal. But not to begin the process and conduct a bipartisan impeachment investigation, given the undisputed facts and conduct already on the public record, is not acceptable. The American people, who saw him achieve the highest office in an impaired election process, deserve no less.
* * *
*. Obstruction of justice is knowingly and purposely interfering, by word or deed, with a federal judicial proceeding or a pending proceeding before Congress or a federal agency, or even an informal investigation by an executive agency. It is easy to understand but hard to prove.
Alan Dershowitz argues that since the president has the power to fire the FBI director and could have issued a pardon to prevent any prosecution of Michael Flynn, then doing either cannot be a criminal offense. Moreover, he argues, since President Trump has that constitutional power, examining his motives is irrelevant, even irresponsible. But with all due respect, motives may be irrelevant in a strictly constitutional separation-of-powers context but not in the context of judging impeachable offenses involving the abuse of presidential powers and the public trust. If Trump’s motives included a desire to thwart the criminal justice system to protect himself and his associates from being exposed about collusion with the Russians during the campaign, then those motives would be reasons for impeachment and removal from office. See Alan Dershowitz, “Trump Did Not Obstruct Justice in Firing James Comey,” Washington Examiner, May 11, 2017.
†. Trump and his personal attorney challenged many of Comey’s assertions in this testimony, in effect accusing him of committing perjury. But their denials were not specific or documented—exactly the reason why a congressional impeachment is needed. Only that investigation can compel testimony and documents from the president.
‡. This also possibly showed that Trump was aware that he had something improper in mind when he asked to speak to Comey alone. Otherwise, why would he ask everyone else to leave the room, including and especially his attorney general, Jeff Sessions, who arguably could have insisted on staying as the appropriate thing to do?
§. It should be noted that the legal concept of treason, as defined in the Constitution and in federal law, would not be applicable here. An act can be treasonous only if it is committed when the United States is at war with another nation. Therefore, if Michael Flynn or Donald Trump Jr. or, for that matter, President Donald Trump were found to have colluded with President Putin and the Russian government to interfere in the U.S. presidential election, that would not constitute “treason” under the law or the Constitution, since the United States is not at war with Russia.
**. Those who argue that this clause was not intended to apply to the president of the United States don’t address the fact that the president is not specifically exempted, and that the exact words used do include the president: “no Person holding any Office [of the U.S. government] . . .” (emphasis added). Moreover, the context and thrust of the discussion at the convention, as can be seen from Pinckney’s remarks, were concern about “external influence.” Only the president has the power to change national policy in favor of a foreign nation in return for foreign economic favors or benefits—so it would be odd if the framers intended the president to be exempt without saying so explicitly. See Olivia B. Waxman, “What Is an Emolument? Donald Trump Has People Talking About This Part of the Constitution,” Time, November 22, 2016.
††. Section 4 of Amendment XXV reads, in full, as follows: “Whenever the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
“Thereafter, when the President transmits to the President pro tempo
re of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office” (emphasis added). See https://constitutioncenter.org/interactive-constitution/amendments/.
‡‡. In practice, with a resisting president, the Twenty-Fifth Amendment as drafted could require two separate two-thirds votes by the House and the Senate. The first two-thirds vote by both houses will be necessary if the resisting president hears ahead of time about an adverse vote from his or her cabinet and blocks the vote by firing the entire cabinet or those voting to remove him. Then Congress would pass a law designating the alternative “body,” a majority of which would then vote to remove the president. A resisting president would undoubtedly veto that law. And a two-thirds vote by both chambers would be necessary to override the veto. Then the alternative body would vote by majority to remove the president, and another two-thirds vote by both chambers would be required to effectuate the removal.
§§. Some misread the first sentence of Section 4 and believe that the Congress can designate a body to make the initial decision on inability to discharge without the support of the vice president. This is a result of ignoring the word “and” and reading the word “or” as providing for an alternative method to remove the president for inability to discharge even if the vice president is not supportive. But this is not correct. A careful reading shows that the support of the vice president is first required and also support of either a majority of the cabinet or a majority of an alternative body created by Congress by passing a law.
***. F. Diane Barth quotes psychoanalyst Dan Shaw, author of the book Traumatic Narcissism: Relational Systems of Subjugation, who described “five telltale signs of a malignant narcissist,” i.e., someone who:
• “is infinitely entitled and grateful to no one”;
• “when telling the story of his life, he ‘leaves out any trace of his own significant misdeeds and failures”;
• “never hesitates to lie for the purpose of self-aggrandizement”;
• “blames others for his own errors and failures”; and
• “is erratic, thin-skinned, belligerent, and constantly engaged in attacking and belittling perceived enemies.”
Acknowledgments
My special heartfelt thanks to my longtime literary agent and friend, Ron Goldfarb, for helping me in writing the book proposal and for inspiring me to focus on the major misjudgments of James Comey and mainstream media that cost Hillary Clinton the presidency. To my editor, Colin Harrison, literally without whom this book would not have been written. He knew how difficult a task it would be not just to write the book but to make it relevant months after the 2016 election was over. He took my calls patiently, steered me in the right direction, propped me up when I was losing heart and energy. And finally, most important, Colin took an often densely written manuscript, overly legalistic at times and duplicative, and trimmed it down and made it into what I hope some readers will find to be an interesting and informative narrative as well as an important contribution to history. My thanks also go to the whole Scribner team: Susan Moldow, Nan Graham, Roz Lippel, Brian Belfiglio, Sarah Goldberg (who rode herd on the manuscript at every phase), Katie Rizzo, Cynthia Merman, and Elisa Rivlin.
Thanks, too, to the many sources, named and unnamed, who helped me with vital information to tell this story, especially Brian Fallon, Secretary Clinton’s campaign press secretary and now an incisive CNN analyst; Joel Benenson, who took the time to put all the polling data in perspective; and the multiple sources in the media, intelligence, legal, and law enforcement communities who wished to remain unnamed but helped me understand what happened and why in the emails media coverage, the Russian investigation, and the lead-up to the James Comey October 28 letter.
I owe special gratitude to my DC law partners in Davis Goldberg & Galper—Adam Goldberg and Josh Galper—for their support; to Eleanor McManus, our other partner and cofounder of the strategic media/crisis management firm Trident DMG; to Carolyn Atwell-Davis, Drew Halunen, and Matt Stone, for their research on impeachment precedents; to Eva Bandola, who was there to relieve the tension of writing the book by teaching me about baseball elementals at a memorable Washington Nationals game; to Victoria Batts, my assistant, who assembled research materials patiently and efficiently; and of course, and especially, to Maddie Melendez, who has suffered through the boredom of working with someone for over seventeen years (!) who never has any crises or mood swings.
To my four children—Jeremy, Joshua, Seth, and Marlo—for absorbing another intense period of Dad’s life writing a book and for loving me and blessing me; and to my six grandchildren—Jake, Sydney, and Devon (from Marlo and David) and Zachary, Noah, and Gabriel (from Seth and Melissa)—who I don’t think will read this book but will still tell me they love me.
And finally, to the person to whom this book is dedicated—my wife, Carolyn Atwell-Davis—not only because she is my best friend, partner, and wife of thirty-two years (how did she do it?), but because she did so much to help me write this book. Carolyn is a great lawyer, a truly talented writer, and a great critic of her husband’s often verbose writing—and even though I argued with her sometimes, I usually ended up agreeing with her editorial suggestions.
About the Author
MATT WILLIAMS / CLUB HILL MEDIA
Lanny J. Davis is a lawyer, crisis manager, consultant, author, and television commentator who counsels individuals, corporations, and others under scrutiny on crisis management and legal issues by developing legal, media, and governmental strategies that are designed to best produce successful results for his clients. His clients have included CEOs, world leaders, and both national and international companies.
During the Clinton administration, Lanny served as special counsel to the president and was a spokesperson for the president and the White House on matters concerning campaign finance investigations and other legal issues. In 2005, President George W. Bush appointed Lanny to serve on the five-member Privacy and Civil Liberties Oversight Board, created by Congress as part of the 2005 Intelligence Reform Act.
He graduated from Yale College, where he served as chairman of the Yale Daily News, and from Yale Law School, where he won the prestigious Thurman Arnold Moot Court prize and served on the Yale Law Journal.
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Crisis Tales: Five Rules for Coping with Crises in Business, Politics, and Life
Scandal: How “Gotcha” Politics Is Destroying America
Truth to Tell: Tell It Early, Tell It All, Tell It Yourself: Notes from My White House Education
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Notes
Chapter 3: The Times Gets It Wrong Again
1 For the September 2017 study by Harvard and MIT scholars titled “Partisanship, Propaganda, and Disinformation: Online Media and the 2016 U.S. Presidential Election,” see http://nrs.harvard.edu/urn-3:HUL.InstRepos:33759251. For the New York Times article, see Jo Becker and Mike McIntire, “Cash Flowed to Clinton Foundation Amid Russian Uranium Deal,” New York Times, April 23, 2015, https://www.nytimes.com/2015/04/24/us/cash-flowed-to-clinton-foundation-as-russians-pressed-for-control-of-uranium-company.html.
Chapter 4: The FBI Criminal Investigation
1 Evan Halper, “Federal Investigators Want Justice Department Probe of Hillary Clinton Emails,” Los Angeles Times, July 24, 2015.
2 Josh Gerstein, “Dem Lawmakers Raise Doubts on IGs’ Clinton Email Review, Politico, March 10, 2016, http://www.politico.com/blogs/under-the-radar/2016/03/lawmakers-raise-doubts-on-igs-clinton-email-review-220580.
3 Karoun Demirjian, “State Department IG Slams Clinton Over Emails, Wrongly Declared Dead at the VA, Europe’s Migrant Dead Unraveling, and Obama to Trump: Stop Scaring the World,” Washington Post, May 26, 2016, https://www.washingtonpost.com/news/powerpost/wp/2016/05/26/state-department-ig-slams-clinton-over-emails-wrongly-declared-dead-at-the-va-europes-migrant-deal-unraveling-and-obama-to-trump-stop-scaring-the-world/?utm_term=.462efb2b86eb.
The Unmaking of the President 2016 Page 19
