The Cagey Mr. Comey

 

Former FBI Director James Comey is the star of a gripping political drama that may bring Donald Trump’s tumultuous presidency to an ignominious end. Trump will be subject to nonstop political pressure, given his unerring ability to say, or tweet, the wrong thing at the wrong time. Comey’s testimony was constructed to lay the foundation for the special prosecutor to make a finding that President Trump had violated the well-established statutory prohibitions against obstruction of justice.  But the obstruction charges are not confined to impolitic tweets, and, ironically, may be applicable to Comey’s own effort to influence the FBI investigation. His prepared testimony before the Senate Select Committee on Intelligence, which he followed up with his dramatic appearance before the Committee on June 8, has its undeniable surface appeal. But on closer reading, it reveals a darker side filled with self-serving allegations that should make him a target of far closer scrutiny than an uncritical and adoring press has given him.

The main issue is whether Comey was able to establish that Trump had obstructed justice by seeking to block the FBI investigation into the ties between Mike Flynn, Trump’s short-lived National Security Advisor, and the Russians. Comey’s most damning testimony is that Trump 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.” During the testimony, Comey said, “I replied only that ‘he is a good guy.’” Marc Kasowitz, Trump’s lawyer, has contested the accuracy of Comey’s account. But for these purposes, I shall take Comey at face value.

The applicable statute about obstruction of justice reads in relevant part as follows:

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States. . . [s]hall be fined under this title, imprisoned not more than 5 years . . .

Two features stand out. First, in the absence of the use or threat of force, obstruction requires that the conduct in question be corrupt. Second, obstruction can be made out by showing an “endeavor” to illicitly obstruct even if that effort failed. The key question is whether the term “hope” entails only a simple (and legal) request, or whether it connotes a direction or order to do an illegal act. Taking the words in isolation, the former interpretation seems clearly correct. But context always matters. Did the circumstances reveal that the President made veiled threat that he would fire Comey if the FBI investigation were to continue? In response to questions from the Senator James Risch of Idaho, Comey insisted that he “took [his words] as a direction.” But, oddly, Comey neither resigned nor reported the matter up the chain of command. How convenient!

The hard question is why Comey allowed the ambiguity to ride by his evasive response that Flynn was an honest man. The entire incident would have gone away if Comey had sought to clear the matter up, then and there, by asking the President flat out whether he was ordering Comey to stop the investigation of Flynn. My own guess is that even Trump would have sensed the suicidal danger in ordering Comey to stop this investigation, and so he would have clarified the statement to say that when he said hope he meant hope after all. Trump had just fired Flynn as National Security Advisor for lying to Vice President Michael Pence about his contacts with the Russians. It was the lie, not the contacts, that resulted in the abrupt—but fully justified—dismissal. That pill was hard for Trump to swallow because he knew that Flynn had not cooperated with the Russians to influence the outcome of the American election.

To be clear, if Trump had either known or believed that Flynn had been involved in any improper dealings with the Russians, even a simple request to stop the investigation would have been very damning. But the entire investigation to this point has not, as Virginia Senator Mark Warner has stated, revealed any “smoking gun” whatsoever indicating collusion between the Trump campaign and the Russians in the run-up to the November 2016 election.

For Trump to hope that Comey would see it fit to back off sounds like he said what he meant and meant what he said. And Trump was right to be unhappy with Comey for refusing, without explanation, to make the simple, truthful statement that Trump was not personally under investigation in the Russia probe. Instead, Comey slow-walked that issue, which doubtless contributed to Trump’s legitimate concern that Comey was not loyal to him. Indeed, Comey offers no evidence to support his “instincts” of a grander plan, namely, that their “dinner was, at least in part, an effort to have me ask for my job and create some sort of patronage relationship.” His ostensible conclusion is all innuendo, cleverly used to set up the charge that he had been ordered to drop the investigation of Flynn.

In a sense, the situation is even worse. One of the striking moments in the Senate hearing was Comey’s account of his odd response to former Attorney General Loretta Lynch’s request that he speak of the Department of Justice’s investigation of the Clinton corruption charges as a “matter,” and not an “investigation.” In this instance, Comey himself was at risk, so he did not let the matter lie silent. He flat out asked her whether her request was an order and only made the requested statement when he was assured that it was. His own explanation was that “this isn’t a hill worth dying” for. But, in fact, Comey’s conduct was more damning than his flip remark lets on. Lynch ordered Comey to make a false statement about a matter of intense public interest and concern. Lynch’s foolish request “endeavored,” to use the statutory term, to tamp down the FBI investigation in order to create some political breathing room for the Clinton campaign. Comey should have told Lynch that he was not going to participate in a transparent ruse, period. Perhaps both he and Lynch were guilty of obstruction of justice.

His unwillingness to do so casts a harsher light on Comey’s effort to go slow on, and then abort, the Clinton e-mail investigation, when her destruction of government emails received on her unauthorized server constituted a textbook form of obstruction. Comey’s own July 5, 2016 statement, however, butchered a law that imposed criminal responsibility for the unauthorized use of a server, either intentionally or with gross negligence. His response was that while “we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”

But the intention to violate the law is no part of the government’s case: all that matters was that she knew that she used an unauthorized server, a point beyond dispute. And there is no distinction between “gross negligence” on the one hand and “extreme carelessness” on the other. Comey insisted at that time that “no reasonable prosecutor would bring such a case.” Indeed, any claim that the evidence against Clinton was weak on intent is only credible because of Comey’s legal errors. In fact, the requisite mens rea in the Clinton case was indisputable. But, more to the point, why would any reasonable prosecutor then choose to turn Trump’s one remark into a criminal case of obstruction where the intent evidence is, to say the least, subject to multiple interpretations?

Ironically, a possible case for obstruction of justice might be brought against Comey himself. His most striking testimony was that, in his role as a private citizen, he had leaked his own memo about his conversations with Trump to the press through an intermediary, Columbia Law Professor David Richman. But again, Comey’s mock-heroic stance should be subject to harsh rebuke. The memo he wrote was part of his business as FBI Director. Yet there is no evidence that Comey sought approval from the FBI for the release, or even received advice from his personal lawyer that the release was proper. It has been claimed that his conduct is perfectly legal because the notes did not contain any classified information. But the applicable precedents, most notably the Supreme Court decision in the Pentagon papers case from 1971, did not involve any ongoing criminal investigation before the FBI. Comey made it clear that he issued the covert release of these papers because he wanted to spur the appointment of a special counsel, which in fact it did. Comey could have, of course, said publicly that he thought such an investigation was warranted, but a sour grapes statement would have been largely ineffective.

His actions were, at the very least, an inexcusable departure from FBI norms, and they have upended the course of the FBI investigation. So, ironically, special prosecutor Robert Mueller should ask himself whether Comey’s actions constitute a corrupt effort to influence an ongoing criminal investigation under Comey’s newly expanded definition of obstruction.

© 2017 by the Board of Trustees of Leland Stanford Junior University

Published in Law, Politics
Like this post? Want to comment? Join Ricochet’s community of conservatives and be part of the conversation. Join Ricochet for Free.

There are 77 comments.

Become a member to join the conversation. Or sign in if you're already a member.
  1. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    None of this will matter. Nothing ever happens to Democrats and people supporting the Left. Nothing. Ever.

    • #1
  2. DocJay Inactive
    DocJay
    @DocJay

    This will all be a giant ball of nothing other than a diversion to passing actual  legislation.

    • #2
  3. skipsul Inactive
    skipsul
    @skipsul

    Washington truly is bizarro-land.

    • #3
  4. ModEcon Inactive
    ModEcon
    @ModEcon

    Is it relevant to the case of whether Trump obstructed justice that Trump prefaced his statement about Flynn with a statement “The President began by saying Flynn hadn’t done anything wrong in speaking with the Russians” according to Comey.

    It seems like this would be more along the lines of “you and I both know that Flynn didn’t commit any crimes with the Russia call, so don’t make a big deal out of it”.

    Also, given that Flynn was already cleared of any wrong doing in that case, I would suppose that any investigation would have to be separate from that one. In other words, investigating Comey for other things was never talked about, only the Russia calls were in context, at least by some interpretations (I can accept that others may disagree, the statement could be interpreted to refer other aspects of Flynn, though not without reasonable doubt IMO).

    Also, doesn’t the fact that Trump has on other occasions spoken positively about the FBI finding out if any of Trump’s subordinates/acquaintances had done wrong, strongly hint that Trump was only referring to the Russia calls aspect.

    Finally, isn’t it the jurisdiction of the president to manage enforcement priorities. So, is it really such a bad thing for the president to say that since we are already sure about what went down in this case, don’t waste time on it.

    • #4
  5. Spin Inactive
    Spin
    @Spin

    Question:  as a hypothetical, what if Trump had said to Comey the following (and let us assume it was beyond doubt that he said it):

    “I want you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I want you to let this go.”

    Would that be a clear case of obstruction?

    If it were a clear case, would Republicans impeach the President?

     

    • #5
  6. Gumby Mark Coolidge
    Gumby Mark
    @GumbyMark

    The first time I’ve ever had any sympathy for Donald Trump was after hearing Comey’s testimony.

    • #6
  7. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Spin (View Comment):
    Question: as a hypothetical, what if Trump had said to Comey the following (and let us assume it was beyond doubt that he said it):

    “I want you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I want you to let this go.”

    Would that be a clear case of obstruction?

    If it were a clear case, would Republicans impeach the President?

    He didn’t.

     

    • #7
  8. Guruforhire Inactive
    Guruforhire
    @Guruforhire

    Comey has a long history of being a bad actor and using obstruction charges to get at people who haven’t committed crimes.

    Mueller does as well.

     

    • #8
  9. Tennessee Patriot Member
    Tennessee Patriot
    @TennesseePatriot

    Bryan G. Stephens (View Comment):
    None of this will matter. Nothing ever happens to Democrats and people supporting the Left. Nothing. Ever.

    Exactly right. Mueller and Comey are old pals- Mueller has been termed as Comey’s mentor. IMO, they behaved disgracefully during their “finest hour” when they took advantage of temporarily ailing AG to block a law the President wanted and had vetted- disagree with it or not. Mollie Hemingway today in the Federalist outlines his past indiscretions, as supported by past WSJ editorials. He is a politician first, with strong ties to Schumer.

    I hate to say for the first time ever I had to quit listening to Need to Know this past weekend because the premise of the discussion was based on a presumption that Comey is above reproach and pure. His actions covering for Hillary last July showed him to be the very worst kind of political, partisan hack who has destroyed the credibility of the FBI as Holder and Lynch destroyed the credibility of the Justice Dept. (Not to mention the IRS, EPA, etc.) I just couldn’t take it. They all suck, and need to be called out for it- even if you hate Trump.

     

    As Instapundit says, we have the worst political class in our history. I would add we also have the worst media class compounding the problem, especially since our educational standards are horrific to a degree the common young person hasn’t a clue,

    • #9
  10. Brandon Shafer Coolidge
    Brandon Shafer
    @BrandonShafer

    I’m curious to hear Mr. Epstein’s take on Alan Dershowitz’s argument that the President couldn’t have commited Obstruction in this case because of his constitutional powers.

    • #10
  11. Spin Inactive
    Spin
    @Spin

    Bryan G. Stephens (View Comment):

    Spin (View Comment):
    Question: as a hypothetical, what if Trump had said to Comey the following (and let us assume it was beyond doubt that he said it):

    “I want you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I want you to let this go.”

    Would that be a clear case of obstruction?

    If it were a clear case, would Republicans impeach the President?

    He didn’t.

    I include here, for your reference, the Dictionary definition of the word hypothetical, and call your attention in particular to the fourth definition of the word:

    http://www.dictionary.com/browse/hypothetical?s=t

    • #11
  12. Guruforhire Inactive
    Guruforhire
    @Guruforhire

    Lets remember that Comey put martha stewart and others in jail for less than his testimony under oath in congress.

    • #12
  13. Spin Inactive
    Spin
    @Spin

    Guruforhire (View Comment):
    Lets remember that Comey put martha stewart and others in jail for less than his testimony under oath in congress.

    Nobody remembers that.  Heck, I didn’t remember it because I never knew it.  I just “knew” she went to jail for insider trading.

    Comey seems like a real jackmuhgoblin.

    • #13
  14. Steve C. Member
    Steve C.
    @user_531302

    Funny, Comey’s actions look worse and worse every day.

    • #14
  15. Goldwaterwoman Thatcher
    Goldwaterwoman
    @goldwaterwoman

    Richard Epstein: And Trump was right to be unhappy with Comey for refusing, without explanation, to make the simple, truthful statement that Trump was not personally under investigation in the Russia probe. Instead, Comey slow-walked that issue, which doubtless contributed to Trump’s legitimate concern that Comey was not loyal to him.

    Unless Comey was living under a rock, he surely must have realized that his refusal to make public the fact that Trump was not under investigation was harming the presidency and fueling myriad conspiracy theories in the press. He didn’t need to be “loyal” to Trump; he did need to be loyal to this country and understand the political damage his inaction had caused.

    • #15
  16. Stina Member
    Stina
    @CM

    Spin (View Comment):

    Bryan G. Stephens (View Comment):

    Spin (View Comment):
    Question: as a hypothetical, what if Trump had said to Comey the following (and let us assume it was beyond doubt that he said it):

    “I want you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I want you to let this go.”

    Would that be a clear case of obstruction?

    If it were a clear case, would Republicans impeach the President?

    He didn’t.

    I include here, for your reference, the Dictionary definition of the word hypothetical, and call your attention in particular to the fourth definition of the word:

    http://www.dictionary.com/browse/hypothetical?s=t

    I don’t answer hypotheticals.

    • #16
  17. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Moderator Note:

    Per the CoC's guidance to assume good faith, the best thing to do when a member poses a hypothetical is simply to assume it's a hypothetical.

    Spin (View Comment):

    Bryan G. Stephens (View Comment):

    Spin (View Comment):
    Question: as a hypothetical, what if Trump had said to Comey the following (and let us assume it was beyond doubt that he said it):

    “I want you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I want you to let this go.”

    Would that be a clear case of obstruction?

    If it were a clear case, would Republicans impeach the President?

    He didn’t.

    I include here, for your reference, the Dictionary definition of the word hypothetical, and call your attention in particular to the fourth definition of the word:

    http://www.dictionary.com/browse/hypothetical?s=t

    Right, because Trump did not do something, you have to dream up something he did not do, and ask us to disavow that.

    No. Thank. You.

    • #17
  18. Hypatia Inactive
    Hypatia
    @Hypatia

    When was Comey going to tell us he himself was The Leaker?  That wasn’t in his prepared testimony her released on June 7.  Never mind his FBI position: he is a lawyer, correct?  He had an absolute obligation of candor toward the tribunal, in this case, Congress.  He is despicable.

    • #18
  19. Mountie Coolidge
    Mountie
    @Mountie

    My mind was made up about Comeys integrity when he said “To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.” on July 5th. At the time I felt that there were two sets of laws in place: one set for the priveledged and one for us. Now I believe that there  is only Comeys Law.  He can summon Special Prosecutors,  influence elections, release sensitive government correspondence all with immunity. Makes me sick. John Gault had it right.

    • #19
  20. Chris Member
    Chris
    @Chris

    Guruforhire (View Comment):
    Comey has a long history of being a bad actor and using obstruction charges to get at people who haven’t committed crimes.

    Mueller does as well.

    And this is a fine opportunity to highlight Mollie Hemingway’s piece at The Federalist.

    • #20
  21. MarciN Member
    MarciN
    @MarciN

    Chris (View Comment):

    Guruforhire (View Comment):
    Comey has a long history of being a bad actor and using obstruction charges to get at people who haven’t committed crimes.

    Mueller does as well.

    And this is a fine opportunity to highlight Mollie Hemingway’s piece at The Federalist.

    Wow.

    Comey is truly a venomous snake.

    • #21
  22. Chris Campion Coolidge
    Chris Campion
    @ChrisCampion

    There’s an old saying I picked up from my years working the streets as a hard-bitten, cynical detective.  Or I heard it once in a song, take yer pick:

    It ain’t a crime if you don’t get caught.

    Or if James Comey has decided it gives him some political advantage to determine when a clear-cut case of a crime is not a crime, and a politician won’t get caught.

    Comey seems to enjoy the buying of political favors with decisions as to whether or not to recommend a prosecution.

     

    • #22
  23. Chris Campion Coolidge
    Chris Campion
    @ChrisCampion

    Chris (View Comment):

    Guruforhire (View Comment):
    Comey has a long history of being a bad actor and using obstruction charges to get at people who haven’t committed crimes.

    Mueller does as well.

    And this is a fine opportunity to highlight Mollie Hemingway’s piece at The Federalist.

    That about sums up why I think Comey’s a chowderhead.  Inconsistently applying rules that are sometimes followed and sometimes not makes you a crapweasel.

    Chowdercrap?  Weaselhead?  I don’t want to resort to name-calling here, but I don’t want to be prosecuted for obstruction.  Only name-calling.  Any reasonable prosecutor could bring a case here.

    • #23
  24. Guruforhire Inactive
    Guruforhire
    @Guruforhire

    Comey is basically Kim Philby.

    • #24
  25. Larry3435 Member
    Larry3435
    @Larry3435

    Let’s be clear.  The Director of the FBI serves two masters, and that makes it a difficult role.  On the one hand, the Director is charged with investigating crimes and as such he owes an independent duty of loyalty to the law.  On the other hand, the Director is a political appointee who serves at the pleasure of the President and as such he owes a duty of loyalty to implement the President’s (lawful) policies.  One of those raises questions about obstruction of  justice; the other is proper accountability; and it is not always clear which is which.

    Oh sure, sometimes the obstruction of justice is clear – for example, when Obama instructed his DOJ (and, implicitly, his FBI) not to enforce immigration laws.  A clear instruction from the President to ignore the law – I call that obstruction of justice.  But all of this Trump / Comey stuff is really in the grey area.  A statement like “I hope you can let this go,” is not in the same league as a statement like “you are to cease all enforcement of immigration laws.”  A statement like “Do I have your loyalty?” is legitimate in some contexts, and illegitimate in others.

    I can understand why Comey was uncomfortable getting into the grey areas with his boss, whether the boss at the time was Trump or Loretta Lynch.  As an attorney, I have frequently been in a similar situation – where I knew what the client wanted but was concerned that it was getting into an area that was ethically murky.  It isn’t easy, but I believe that the proper response is to get the issue out in the open, identify the ethical line in the sand clearly, and ask the client to clarify.  This is especially important if you know that you are dealing with a client who is not sophisticated in the legal area under discussion, as Trump clearly was not.  Yeah, you might get fired, but that is the risk you take and the price you pay for having integrity.

    I do not credit Comey with leaving all this cloud of ambiguity hanging over his conversations.  He was the expert; Trump was not.  It was on Comey to clear it up.  But I am not going to be to quick to cast definitive blame on anyone.  I think Comey was a coward, but I am far from convinced that he was a criminal.  Conversely, I think that Trump should have been better prepared for his meetings with Comey, but he is a long way from obstruction of justice.

    • #25
  26. Kozak Member
    Kozak
    @Kozak

    Obama’s AG actually obstructed an investigation and Comey did nothing.

    He talks to Trump and takes copious notes, which he then removes when he is fired.

    Obama, nothing.

    3 hour interview with Clinton and no recording, no notes.

    Comey is a snake.

    • #26
  27. Kozak Member
    Kozak
    @Kozak

    MarciN (View Comment):
    The Federalist

    and this

    Wrong video.

    • #27
  28. Viator Inactive
    Viator
    @Viator

    • #28
  29. Jules PA Inactive
    Jules PA
    @JulesPA

    Richard Epstein: ironically, special prosecutor Robert Mueller should ask himself whether Comey’s actions constitute a corrupt effort to influence an ongoing criminal investigation under Comey’s newly expanded definition of obstruction.

    1000 times this. ^

    • #29
  30. Jules PA Inactive
    Jules PA
    @JulesPA

    Kozak (View Comment):
    Obama’s AG actually obstructed an investigation and Comey did nothing.

    He talks to Trump and takes copious notes, which he then removes when he is fired.

    Obama, nothing.

    3 hour interview with Clinton and no recording, no notes.

    Comey is a snake.

    Is it possible Comey is the fall guy for all the obstructive actions taken on behalf of Obama?

    will any of those come to light via the special counsel.

    A girl can dream.

    • #30
Become a member to join the conversation. Or sign in if you're already a member.