(Reuters) – A smoking gun is extraordinarily rare evidence. Think about it: the gun has been fired, the smoke is curling from the barrel, and the Federal Bureau of Investigation can see the traces. But James B. Comey, dismissed as FBI director by President Trump a month ago, delivered one in his Senate testimony Thursday. It may prove injurious – possibly fatal – to the political fortunes of the Trump administration.
The famous “smoking gun tape” that doomed President Richard M. Nixon was recorded in the Oval Office in June 1972, the week after White House operatives were arrested breaking into Democratic National Committee headquarters at the Watergate Hotel. Nixon wanted the FBI to halt its Watergate investigation. The Supreme Court ordered Nixon to give up the tape, it provided a clear-cut case of obstruction of justice, and Nixon resigned three days later, in August 1974.
The tape gave the lie to Nixon’s famous protestation that “I am not a crook.” He was.
Comey’s testimony has made it clear that the FBI is on the case again – and that one of the crime scenes is 1600 Pennsylvania Avenue. One target is retired Lt. General Michael T. Flynn, the shortest-serving national security adviser in American history. It may come to pass that the president himself will fall under investigation for publicly declaring that he fired his former director over the probe into Russia. If so, Trump handed the smoking gun over to Comey all by himself.
Comey laid down the outlines of a case of obstruction of justice that could be made by Robert Mueller III, his predecessor as FBI director and the recently appointed special counsel in the increasingly malignant case of Russian meddling in the 2016 election.
The facts are straightforward but still shocking. Mueller and his investigators now have the meticulous memoranda of conversations Comey had with Trump. Why did the former director feel compelled to make them? “I was honestly concerned that he might lie about the nature of our meeting,” Comey said, “and so I thought it really important to document.”
We learned from Comey that Flynn was under criminal investigation, vulnerable to a charge that he lied to FBI agents who interviewed him about his contacts with Russian officials, well before he was forced to resign Feb. 13. And that the following evening, face to face, one-on-one in the White House, Trump asked Comey to “let Flynn go” – to drop the case.
“Was General Flynn, at that time, in serious legal jeopardy?” asked Senate intelligence committee chairman Richard Burr, a North Carolina Republican. “Do you sense that the president was trying to obstruct justice?”
“There was an open FBI criminal investigation of his (Flynn’s) statements in connection with the Russian contacts and the contacts themselves,” Comey replied. “I don’t think it’s for me to say whether the conversation I had with the president was an effort to obstruct. I took it as a very disturbing thing, very concerning, but that’s a conclusion I’m sure the special counsel will work towards, to try and understand what the intention was there, and whether that’s an offense.”
That might be count one if any charges emerge from the probe. This might be count two: “I take the president at his word – that I was fired because of the Russia investigation,” Comey said. “Something about the way I was conducting it, the president felt, created pressure on him that he wanted to relieve.” Firing Comey with the intent of derailing an investigation Trump has constantly called a hoax could also be construed as an obstruction of justice.
“You have the president of the United States asking you to stop an investigation,” said Senator Dianne Feinstein, a California Democrat. “What was the response of your colleagues?” Comey answered: “I think they were as shocked and troubled by it as I was.”
And, perhaps most disturbing of all, Comey said for the first time that the president’s conduct may fall within “the scope” of the FBI’s investigation. That means that Mueller and the Bureau might be looking at Trump as a potential subject of a criminal case. The law makes it a crime to corruptly obstruct, influence or impede an FBI investigation.
Which brings us back to what we might learn from the case against Nixon. The Justice Department almost certainly cannot indict a sitting president. But back in June 1974, two months before Nixon resigned, news broke that he had been named as an “unindicted co-conspirator” by the federal grand jury in the Watergate case. The defendants in that case included Nixon’s former attorney general, John Mitchell, and the men who had served as his closest White House aides, H.R. Haldeman and John Ehrlichman. All three went to prison.
At that time, the House Judiciary Committee was weighing articles of impeachment against the president. The charges included obstruction of justice, which the committee defined as an abuse of power in violation of the oath of office he had sworn – to take care that the laws of the land are faithfully executed.
It is difficult – impossible, really – to contemplate a Republican Congress initiating impeachment proceedings against President Trump. Impeachment looks like a legal proceeding, but it is at root political. An impeachable offense is whatever Congress says it is.
But that decision is ultimately in the hands of the American people. If they think that the man in the White House is a crook, they will have to vote to flip the House and the Senate from red to blue in November 2018. If that happens, the first order of business for the new Congress in January 2019 might conceivably be hearings on impeachment. In the meantime, Robert Swan Mueller III will be working in secrecy on the biggest case in the history of 21st-century America.