Is the Cover-up Worse than the Crime?

March 29, 2017–Just back from a research trip. There were many days I longed to post here–so much has happened in the past several weeks. There was President’s Trump’s sudden accusation, leveled at predecessor Barack Obama, for personally wiretapping him last year. Then Trump’s dark hint evidence would emerge within a short time corroborating his charge. Then Representative Devin Nunes, chairman of the House Permanent Select Committee on Intelligence (HPSCI) trotting up to the White House, mysteriously to be permitted to see the “evidence,” so he could step outside and run interference for the president yet again. That’s not the half of it. The fabulous Michael Flynn, it turns out, failed to register as a foreign agent while pocketing money from abroad, even while working with the Trump campaign. He also failed to obtain the required permissions from his former military colleagues. The president’s son-in-law, Jared Kushner, held meetings with the Russian ambassador, as well as bankers linked with the Kremlin, during the presidential transition. Impressario Roger Stone now concedes he was in touch with Russians as well as the web presence (individual? organization?) the Russians used as cut-out to toss hacked American political emails to Wikileaks last year. The FBI has affirmed in pubic that it  is conducting an investigation of the Trump campaign’s ties to Russia. And Paul Manafort, erstwhile Trump campaign manager, has now been tied to cash transfers from Russia through Cyprus.

Meantime the selfsame Congressman Nunes has, deliberately or not, robbed HPSCI of all its credibility in investigating the Russian caper, since–despite his responsibility to be even-handed as committee chairman–Nunes has now repeatedly rushed to defend Trump and his political campaign even while supposedly investigating that very entity. Nunes has also cancelled open hearings that were intended to gather evidence. This sounds like nothing other than a pre-emptive defense.

Over the past few days there has been a veritable rush to volunteer testimony to congressional investigating bodies. Among those suddenly clamoring to be witnesses–where before they insisted there was no there there–are Messrs Kushner, Manafort, Stone, Carter Page and others. Beware the Iran-Contra poly–during the Reagan administration’s Iran-Contra scandal the fact of having testified before Congress became a protection against criminal prosecution, because multiple courts dismissed prosecutors’ declarations they had obtained the same evidence independently of what had transpired before Congress.

Events also evoke the old Watergate adage: the cover-up is worse than the crime. Playing with the Russians, so long as it did not involve espionage or embezzlement, violated only limited numbers of statutes. Apart from a possible cut-out on the American side (Roger Stone?), for whom hacking and computer information laws may be implicated, legal liabilities remain fairly limited. But lying to the FBI is a felony crime, as is obstructing justice (say, by interfering with an investigation), or manufacturing “evidence” on a different allegation with an intent to distract or mislead an inquiry. The president’s spokesperson, Sean Spicer, skates on thin ice here. God knows what it cost Ron Ziegler, Mr. Nixon’s spokesman, to follow his boss during Watergate.

For those who favor investigation by a 9/11-style panel or a special prosecutor, so far the allegations lack in drama what they actually do possess in importance. Absent such a dramatic development–along the lines of the 18-minute gap in Mr. Nixon’s audiotapes, or the Oliver North destruction of evidence–the administration should be able to confine inquiries to conventional paths. My bets for the locus of such developments are (1) evidence of positive acts taken to backstop Mr. Trump’s tweets; or (2) concrete confirmation of deals between Trump campaign figures and the Russians.

For the moment everything rides on the Senate Select Committee on Intelligence (SSCI), which, unfortunately, found itself emasculated during Barack Obama’s dark hours trumping the CIA torture investigation. Under its current chairman, Republican Richard Burr, there is not a lot of confidence the SSCI can investigate a paper bag.

Hold on to your hats!