This morning Donald Trump sent a nebulous tweet directed at former FBI Director James Comey:
James Comey better hope that there are no "tapes" of our conversations before he starts leaking to the press!
— Donald J. Trump (@realDonaldTrump) May 12, 2017
I have to confess not knowing what this means. Does it mean that Trump is saying he has recorded Comey? Is it a play on Trump’s previous claim that he was under surveillance by the NSA? Does it mean anything? I certainly think classifying it as a “threat” as CNN does is so profoundly silly that it self-discrediting. What is the threat? To expose actual conversations with Comey? One would think that would be a public service if it happened.
Regardless of intent, what the tweet did was bring back images of Watergate and Nixon’s Oval Office tapes. To the historically illiterate and the press, this would be a major crime. It not only wouldn’t be illegal, in fact, every president from FDR to Nixon recorded, at a minimum, their own phone calls and their official conversations and meetings. JFK salted the White House with microphones. Nixon’s tapes were a departure from the norm because he recorded everything… including an ongoing criminal conspiracy.
It is entirely possible Trump does have tapes of his meeting with Comey. Personally, given what we’ve seen of Trump’s personality, I’d peg the probability closer to “likely” than “possible.” And there is nothing illegal about that. It isn’t all that bright, in my opinion, but bright and legal aren’t same thing. As one of Obama’s White House lawyers tweets:
If Trump is actually taping convos, the Pres Records Act requires they be archived, and would violate criminal law (18USC641) to delete them
— Daniel Jacobson (@Dan_F_Jacobson) May 12, 2017
What is making the likelihood of taping seem higher is today’s White House press conference starring Sean Spicer
BREAKING: White House refuses to confirm or deny if Pres. Trump has recording devices in Oval Office or Residence. https://t.co/pjNmuI4M0E
— NBC Nightly News with Lester Holt (@NBCNightlyNews) May 12, 2017
White House Press Secretary Sean Spicer is declining to say whether President Donald Trump taped conversations he had with fired FBI Director James Comey.
Spicer says: “The president has nothing further to add on that.”
Spicer was asked multiple times during the daily White House briefing about the president’s Friday morning tweet stating that, “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!”
Spicer said the tweet was “not a threat” warning Comey not to talk to the press.
But Spicer insists that, “the tweet speaks for itself.”
There is talk among Senate Democrats of a subpoena:
The Senate Intelligence Committee is exploring ways to compel President Donald Trump to hand over any potential audio recordings of now-former FBI Director James Comey, an aide with the committee told HuffPost.
But officials are grappling with two potential hurdles: They don’t actually know if the tapes exist, and likely will face fierce pushback from the White House if they request them.
“There’s no simple mechanism, but you can be sure we’ll take a look at it,” the committee aide said.
The Senate Intelligence Committee ― which is also probing connections between the Trump team and Russian officials ― does not necessarily need to have proof that the tapes exist in order to subpoena them, Bradley Moss, a national security lawyer, told HuffPost. Senate investigators could ask for “any recording devices or backup copies that were referenced in the post made by President Trump on the morning of May 12, with respect to recordings with President Trump and Director Comey,” said Moss.
But the chairman of the committee has final say over whether any subpoenas will be issued, and it was unclear as of Friday afternoon if Sen. Richard Burr (R-N.C.) is on board.
On the House side, meanwhile, a spokesperson for the chair of the Intelligence Committee, Mike Conaway (R-Texas), declined to comment. Rep. Adam Schiff (D-Calif.), the ranking member of the House Intelligence Committee, called on Trump to “immediately provide any such recordings to Congress or admit” that his statement was not true. But Schiff notably did not mention using subpoena power to compel Trump to turn over recordings.
Even though investigators have the authority to subpoena the tapes, there is no guarantee the White House will agree to give them up ― or even say definitively whether they exist. Matthew Miller, a former spokesman for the Department of Justice, questioned whether Congress could successfully subpoena all of the tapes, citing a potential “separation of powers issue.”
“It’s why Cabinet officials testify, turn over the emails to Congress, but White House staffers never do,” Miller emailed.
What makes the current situation markedly different from the Nixon precedent is that Nixon’s tapes were subpoenaed by the special prosecutor in the case, Archibald Cox, not by a congressional committee and the Comey conversations are obviously not associated with any criminal investigation. While IANAL, my opinion is as valid as any lawyers’ because these are uncharted waters.
The only thing we know for certain is that this involves Trump and that means the possibilities are endless.