On May 16, The New York Times published a piece captioned, "Comey memo says Trump asked him to end Flynn investigation."
The Times writes that "it has not viewed a copy of the memo ... but one of Mr. Comey’s associates read parts of it to a Times reporter."
According to the Times, the memo says President Trump said to Comey, “I hope you can see your way clear to letting this go, to letting Flynn go ... He is a good guy. I hope you can let this go.”
The Times ballyhoos this as the "clearest evidence yet that Mr. Trump tried to influence the government’s inquiry into possible links between his associates and Russia."
Evidence? Really?
What the Times labels as evidence is not competent evidence. It is hearsay -- indeed, double hearsay, and perhaps triple hearsay. Hearsay is an out-of-court statement, not subject to cross-examination, and not made under oath so as to render the alleged declarant liable to penalties of perjury. Without some guarantee of trustworthiness, hearsay is inadmissible in court.
What the Times has done is very similar to a police officer coming before a judge, and presenting his affidavit which says only "a reliable informant told me that he has seen President Trump unlawfully taking Russian rubles from the Russian Ambassador," and asking for a warrant to search the president's wallet for said rubles.
The Fourth Amendment requires that an affidavit for a search warrant must show probable cause to believe that the contraband is on the person or at the place to be searched. "Probable cause is determined from the "totality of the circumstances" (facts) stated in the affidavit."
Where, however, an informant's statement is used to secure the warrant, the unsworn statement is not subject to the penalties of perjury. As such, other compensating "guarantees of trustworthiness" must be presented.
Sufficient "facts" -- not "conclusions" -- must be presented to the judge so he can make his independent determination that what the informant told the officer is more probably reliable than not.
In this example, as well as in the Times' account, no facts are set out to allow the reader to reasonably find the source is reliable.
If the memo exists, it is hearsay. If it exists, what guarantees it is truthful?
What Comey's associate allegedly told the Times' reporter is also hearsay.
He read parts. Accurately? All relevant parts? Only the most damaging parts? What guarantees the associate is truthful?
Finally, there is no guarantee the reporter's account is a fair summary.
Even if the memo, and the two accounts are accurate, what's wrong with the president saying "Flynn's a good guy. I hope you can let him go."
Did Comey really think the president was pressuring him to do something wrong? Not if you read Comey's May 3 sworn testimony.
Sen. Hirono: “So if the attorney general or senior officials at the Department of Justice opposes a specific investigation, can they halt that FBI investigation?
Comey: “In theory, yes.”
Hirono: “Has it happened?”
Comey: “Not in my experience. Because it would be a big deal to tell the FBI to stop doing something that -- without an appropriate purpose. I mean where oftentimes they give us opinions that 'we don’t see a case there, and so you ought to stop investing resources in it.' But I’m talking about a situation where we were told to stop something for a political reason, that would be a very big deal. It’s not happened in my experience.”
That version of the facts is entirely consistent with the May 11 sworn testimony of acting FBI director Andrew McCabe before the Senate Intelligence Committee.
Sen. Rubio: "Has the dismissal of Mr. Comey in any way impeded, interrupted, stopped, or negatively impacted any of the work, any of the investigations or any ongoing projects at the Federal Bureau of Investigation?"
McCabe: "There has been no effort to impede our investigation to date. ... Quite simply put, you cannot stop the men and women of the FBI from doing the right thing, protecting the American people and upholding the Constitution."
If it would be a "very big deal" for somebody at the FBI to "stop something for a political reason," wouldn't it be an even bigger deal for someone in the White House to do the same?
If it happened, why didn't Comey mention it when he was sworn to tell the whole truth? Did he just forget?
Posted: QCOline.com June 4, 2017
Copyright 2017, John Donald O'Shea
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