Former FBI Director Comey’s much ballyhooed written statement and oral testimony before the Senate Select Committee on Intelligence did little to shift the intensely partisan battle lines of the ongoing Trump wars. In its aftermath, Trump and his supporters claimed complete “vindication” while the anti-Trump forces asserted that Comey’s testimony bolstered their case that the president obstructed justice. Both sides cherry-picked his testimony and occasionally grasped at straws to re-enforce their preferred narratives. This post is an attempt to offer a more dispassionate assessment.
By way of summary, I’d suggest the following key takeaways:
- Comey’s version of the facts (as distinguished from some other aspects of his testimony) is entirely credible.
- Many of Trump’s interactions with Comey violated important norms of presidential behavior but they fell within his constitutional authority as president.
- The facts Comey presented do not show obstruction of justice by Trump either as to Michael Flynn or the broader Russia investigation.
- Comey’s testimony supports the conclusion that Trump was not complicit in Russian election meddling.
By way of an overall conclusion, I’d submit that the time has come to take a break from hyper-politicizing the Russia investigation. Special counsel Mueller should be trusted to do his job and the appropriate authorities should concentrate on pursuing the important counterintelligence aspects of the investigation free of political distractions.
Comey’s factual testimony is highly credible.
The narrative of Comey-Trump interactions comes down mainly to a “he said, he said” contest. On one side is Comey, a seasoned investigator of largely unquestioned integrity (albeit questionable judgment) who testified under oath based on contemporaneously recorded notes about his conversations with Trump. On the other side is Trump, a serial fabulist who regularly tells verifiable falsehoods. Given this, the credibility contest between Trump and Comey is not a close call. Tellingly, there was little push-back against Comey’s factual presentation during the hearing or in the post-hearing analyses. Trump and his attorney have challenged Comey’s veracity but they offered no specific rebuttal. While there is every reason to credit Comey’s version of the facts, some of his interpretations of the facts and other assertions are more debatable.
Trump’s interactions with Comey violated presidential norms but were consistent with his constitutional authority.
Trump’s dealings with Comey supply further evidence, if any was needed, that he is either ignorant of or indifferent to the norms of presidential behavior. Enforcement of the criminal law in our democracy is supposed to be above politics. For this reason, we expect the president to deal with the FBI director on more of an arm’s-length basis than he would with other executive branch officials. Based on these expectations, Trump critics and supporters generally agree that he acted inappropriately in demanding “loyalty” from Comey, asking Comey to drop his investigation of Michael Flynn’s misstatements, and pressuring Comey to publicly announce that Trump was not the target of a criminal investigation. Moreover, it is clear from Comey’s testimony that Trump has repeatedly lied about what transpired between them.
The damning picture of Trump that emerges from Comey’s testimony hardly amounts to vindication, but was his conduct illegal? Trump violated important principles that reflect generally accepted notions of how our government should work. However, these principles are not legal mandates. As a matter of constitutional law, the president has just as much supervisory authority over the FBI director as any other executive branch subordinate. Comey acknowledged this in his testimony:
“I’m not a legal scholar. So smarter people answer this better, but I think as a legal matter, the president is the head of the executive branch and could direct, in theory, we have important norms against this, but direct that anybody be investigated or anybody not be investigated. I think he has the legal authority because all of us ultimately report in the executive branch up to the president.”
Alan Dershowitz, a retired Harvard law professor who is a legal scholar and certainly no Trump fan, confirms this point. Dershowitz notes that in the exercise of their constitutional authority, presidents can and occasionally have acted to stop, preempt, or otherwise impede potential or ongoing criminal investigations for policy reasons, equitable reasons, or other reasons. Among the many ways they can exercise this authority is by ordering an FBI director to end an investigation or, ultimately, by exercising their indisputable constitutional authority to pardon individuals who are targets or potential targets of an investigation. Dershowitz maintains that a president’s exercise of this broad constitutional authority can never constitute obstruction of justice.[1] This may be an overstatement, but there is no basis to conclude that Trump’s actions here are beyond any obvious boundaries to his constitutional authority.
The same constitutional authority gives the president essentially unfettered discretion to fire the FBI director. Comey recognized this as well in his testimony:
“When I was appointed FBI director in 2013, I understood that I served at the pleasure of the president. Even though I was appointed to a 10-year term, which Congress created in order to underscore the importance of the FBI being outside of politics and independent, I understood that I could be fired by a president for any reason, or for no reason at all.”[2]
The facts outlined in Comey’s testimony provide no reasonable basis to charge Trump with obstruction of justice.
Even apart from the foregoing constitutional considerations, it’s apparent from the facts Comey laid out that Trump’s actions would not amount to obstruction of justice. The Comey hearing focused on two potential areas of obstruction—one involving Michael Flynn and the other relating to the broader Russia investigation.
Michael Flynn. On February 13, 2017, Trump reluctantly fired Flynn as his National Security Advisor for allegedly misrepresenting to Vice President Pence (and perhaps others) a telephone conversation he had with the Russian ambassador about sanctions the Obama administration had imposed on Russia. According to Comey’s written statement, Trump asked him to stay alone following an oval office meeting the very next day (February 14) to talk about Flynn. After Trump initially complained about leaks, Comey described the key part of their conversation as follows:
“The President then returned to the topic of Mike Flynn, saying ‘He is a good guy and has been through a lot.’ He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, ‘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.’ . . .”
Comey went on to say that he understood Trump to be asking only that the FBI drop its investigation of Flynn regarding false statements; he did not interpret the request as encompassing the broader Russia investigation. Elaborating on this incident in his oral testimony, Comey said that he took Trump’s words as a direction rather than a request but he did not comply with it. Comey also testified that Trump never brought up the Flynn matter again with him and that he had no contact from other executive branch officials about dropping the Flynn investigation.
The myriad federal criminal prohibitions against obstruction of justice generally require proof that the accused acted with “corrupt” intent. It’s hard to see how an objective person could find any “corrupt” intent here, much less proof of it beyond reasonable doubt. Regardless of Comey’s impression, Trump’s words clearly fell short of a direction. The only fair reading of what Trump actually said is that he was appealing to Comey to exercise discretion to drop the Flynn investigation. Other factors support the conclusion that Trump meant nothing more than this. Trump never followed up with Comey although he surely knew that the Flynn investigation had not been dropped. Also, there is nothing in Trump’s variegated explanations for why he fired Comey several months later that has anything to do with Flynn. Finally, what Comey did (and, importantly, did not do) following the February 14 meeting contradicts the notion that he had received a presidential directive, much less an illegal one. Comey testified that he discussed the incident with his FBI leadership team,[3] documented it in a memo (as was his practice for all conversations with Trump), and moved on with the Flynn investigation. He did not report this incident to his superiors at the Justice Department, [4] threaten to resign, or notify Congress about it.
In sum, the most plausible interpretation of the facts Comey presented is that Trump simply thought Flynn had suffered enough by his firing and public disgrace and asked Comey to consider giving him a break, and that Comey simply declined the request.
Broader Russia investigation. Comey offered no facts whatever to suggest that Trump sought to obstruct the overall Russia investigation. He testified that the only thing Trump asked of him on this subject was to affirm publicly what Comey had repeatedly told Trump in private—that Trump was not a target of the investigation. According to Comey, Trump never tried to stop or impede the investigation. On the contrary, according to Comey’s written statement: “The President went on to say that if there were some ‘satellite’ associates of his who did something wrong, it would be good to find that out . . .”
In the opening remarks of his oral testimony, Comey did assert his belief that he was fired because of the Russia investigation. However, he formed this belief only after he was fired and attributed it entirely to press accounts rather than anything that transpired between the two men:
“[I]t confused me when I saw on television the president saying that he actually fired me because of the Russia investigation and learned, again, from the media that he was telling, privately, other parties that my firing had relieved great pressure on the Russia investigation.”
When asked by Senator Feinstein to elaborate on why he thought he was fired, Comey responded:
“Guess I don’t know for sure. I believe the — I take the president at his word, that I was fired because of the Russia investigation. Something about the way I was conducting it, the president felt, created pressure on him that he wanted to relieve.”
Putting this response together with the rest of his testimony, the only fair inference is that if something about Comey’s conduct of the Russia investigation did in fact lead to his firing, that something must have been his refusal to publicly acknowledge that Trump was not a target. Firing Comey for this reason might be inappropriate but it has nothing to do with obstructing the investigation. In any event, it’s not clear how Trump could have believed that firing Comey would stop the Russia investigation. Comey was the public face of the investigation. However, the investigation was being conducted by others within the FBI and Deputy Attorney General Rosenstein, not Comey, was ultimately in control of it.
Comey’s testimony reinforces the conclusion that Trump did not collude with the Russians in their election meddling.
The major takeaway from the testimony for Trump supporters was Comey’s public acknowledgement that Trump was not a target of the Russia investigation during his tenure as FBI director. Actually, it was becoming increasingly apparent even before Comey’s testimony that there was no evidence of election-related collusion between Trump and the Russians.[5] There may well be other interactions between Russians and persons associated in some way with Trump that are inappropriate or even illegal. However, nothing suggesting collusion by anyone over Russian election meddling has come to light. It’s reasonable to assume that if there was any specific indication of this, it would have leaked by now. As several senators wryly noted during the Comey hearing, the only information about the investigation that hadn’t leaked is that Trump was not a target.
The collusion narrative seems to have been from the outset largely a product of media hype based on innuendo from selective leaks by anonymous persons with literally hidden agendas. In his testimony, Comey warned against reliance on these leaks. He described one major New York Times story based on such leaks as “almost entirely wrong” and added more generally: “There have been many, many stories purportedly based on classified information about — well, about lots of stuff, but especially about Russia, that are just dead wrong.” In any event, the many leaks offer no specific evidence of election-related collusion even if accepted at face value.
It’s time to depoliticize the Russia investigation.
One certainly can make the case that Donald Trump is temperamentally and substantively unsuited to be president. Many of his detractors are still in a state of denial over his election. They have consistently questioned his legitimacy and “resisted” his presidency. Disdain for Trump extends beyond the strident left. Remarkably, a recent poll found that over 40 percent of voters want to see Trump impeached even if constitutional grounds for impeachment do not exist. The Russia investigation has served as the primary outlet for this “Trump derangement syndrome” in recent months. In his own deranged way, Trump consistently feeds the flames by his outrageous comments and ridiculous overreactions to anything he regards as a criticism or a threat.
Nevertheless, Trump is the duly elected president. Efforts to oust him based on fact-free accusations of collusion with the Russians or far-fetched theories of obstruction of justice do an injustice not only to Trump and the voters who elected him but also, in the long run, to our democracy. The obsession over this by Trump’s critics in the media and elsewhere further polarizes our already hyper-partisan politics. For Trump’s supporters, it adds credence to his claim that he is the victim of a “witch hunt” constructed from “fake news.” Obsession over Trump and the Russia investigation also has largely taken over our national political discourse, pushing into the background many important policy issues. With these results, the Russians have succeeded no doubt beyond their wildest dreams in harming our democracy. Unfortunately, both Trump and his opponents seem to be doing everything possible to aid the Russians in these efforts.
Finally, the extreme politicization of the Trump-related aspects of the Russia investigation threatens to divert attention from its vital counterintelligence aspects. These include learning how the Russians were able to do what they did in the 2016 election, what they still do and are capable of doing, and what countermeasures we can take to prevent them (or other malevolent actors) from interfering in future elections. (It’s even unclear who is now responsible for these aspects of the Russia investigation in light of Mueller’s appointment.)
Trump’s critics demanded a special counsel to investigate the allegations against him and got an exceptionally well qualified one in Mueller. They should now let him do his job unencumbered by continuing political sideshows. If there turns out to be anything to the allegations against Trump, they can and should rely on Mueller find it. Likewise, Trump and his allies should stop their ridiculous and self-defeating attacks on Mueller. If Trump is innocent of wrongdoing, he should welcome the opportunity to obtain true “vindication” from Mueller’s investigation.
[1] A president cannot, of course, instruct subordinates to take actions that would in themselves be illegal—e.g., commit perjury, destroy evidence, bribe witnesses. Also, presidents may pay a political price for the legitimate exercise of their constitutional authority (e.g., President Ford’s pardon of Nixon).
[2] Comey is correct that the statutory 10-year term was enacted in part to give the FBI director some buffer from politics. However, its main purpose was to rein in the FBI director, specifically to prevent another J. Edgar Hoover. Hoover served as FBI director for almost 50 years before he died in office. He had become an essentially out-of-control and unaccountable law unto himself. Most Americans would have welcomed greater presidential supervision over Hoover.
[3] It would be useful to know the leadership team’s impressions from this discussion. Mueller will probably follow up on this.
[4] Comey’s stated reasons for not reporting this to his superiors if he actually regarded it as an illegal order are exceptionally weak. He testified that he was convinced Attorney General Sessions would soon recuse himself from the Russia investigation and the acting deputy attorney general was a short-timer. But these officials were still his superiors at the time and Comey surely had a duty to report an illegal order by the president to someone above him. Also, there is no indication that he reported this incident to his new superior at Justice, Deputy Attorney General Rosenstein, when he came on board or when he assumed responsibility for the Russia investigation.
[5] We recently learned that the FBI investigation into possible collusion between the Trump campaign and the Russians was initiated last June in response to a referral from former CIA Director John Brennan. Brennan testified at a May congressional hearing that he had become aware of many contacts between Trump associates and Russians and was concerned that the Russians might be attempting to enlist the former “wittingly or unwittingly” to assist in their election meddling. Brennan acknowledged that he had no specific reason to believe this was actually happening.