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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
Of course no reasonable prosecutor would have moved to indict Mrs Clinton.
Any prosecutor who would have said otherwise would have defined himself as unreasonable.
Moderator Note:
Cool it, Spin.[Redacted.] The question isn’t about Trump, it is about the process. And about what it actually takes for obstruction to be obstruction. At some point, [redacted]. If you didn’t want to answer, then why did you say anything?
You have to admit it is amazing how the MSM/Democrat PR Machine can craft and keep alive a huge story out of essentially nothing, for the purpose of destroying a politician ….. and we all follow along in the kabuki theater knowing full well it’s (in all likelihood) nonsense …. because the losers of the election own all (or more than the winners) the ink?
And possibly D. E. A. D.
Let’s stop with the button pushing. Moving along.
Moderator Note:
Pushing buttons back isn't helping, Spin.That’d be nice, wouldn’t it? You can’t even ask a question around here [redacted].
Wasn’t there a storyline in the press a few weeks back about how Comey would document most everything? Regardless…
I would be interested to learn if Comey has notes about the Lynch discussion in question.
Without knowing the dates and surrounding swirl of politics, I am open to believing it is normal for him not to have notes from the Obama discussions.
That said, no contemporaneous notes of any kind from the meeting with Clinton and no after the fact memo either? Nothing short of astounding.
True, and as you’re watching this maybe go back and review the history of Watergate. President Nixon was guilty of trying to put a second rate burglary (that he knew nothing about until after it happened) behind him. He was no more nor less guilty of a crime than Bill Clinton was. Trump is guilty of far, far less. The MSM toadies will stop at nothing.
ModEcon: 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.
Already cleared of what? What evidence is there that this is true? I found the entire comment incoherent.
Dear Editor: I’m not pushing buttons. I’m asking questions, and getting angry with people who don’t want to discuss anything in good faith. These people are ruining Ricochet. Ruining it.
Agree entirely with Spin, Mods are doing their best to turn this into an echo chamber. I guess it will make their job easier.
I just read this and come away with a heavy heart. There are bad times ahead.
Not a chance. he comes out of this without a scratch and millions for his forthcoming book.
Bet on it.
Seconding this. @Spin‘s initial question was clearly labeled as a hypothetical and — as I’m reading it — was intended to get clarity on the scope of a president’s powers.
Please go back and re-read Spin’s comment, after the redactions were made. The redactions removed comments that were personally critical of Spin’s counterpart, and which were not in any way related to the content of your question or Spin’s argument.
As far as I can see, the content/substance of Spin’s question/comment stands.
Please avoid personalizing the argument.
Here’s hoping Comey spends the rest of his days in a three floor walk up cold water flat in Moscow.
And his interlocutor should have responded in good faith to the question or ignored it. Instead we got what we always get which is rank obstinacy in the place of debate. I understand why Spin became frustrated.
I was astounded by that as well. But, considering everyone and his dog was given immunity, one shouldn’t be too surprised.
So at this point the judicial branch, the political class, and their media echo chamber think it’s OK for the FBI leadership and the lower federal courts to have veto power over the executive branch of the US government?
Actually, Nixon instructed his minions to have the CIA tell the FBI that investigating the Watergate burglars risked exposing a covert intelligence operation. A demonstrable falsehood concocted to shut down the FBI investigation.
Nixon was certainly held to a higher standard than any previous President, but that doesn’t make his actions any less disreputable.
You understand what you see on the site. Please do not assume that what you see on the site is always everything that is going on. Thanks.
Has Comey hired a lawyer yet (like virtually everyone else touched by this imbroglio) ? If not I wonder why not?
Transparency is a wonderful cure all.
Jamie,
You, and all the other Ricochet members who care to, are free to assume bad faith, and place the worst possible light on, the actions of the moderators, any time you like. It might have more of a positive effect, at least on me, if you didn’t piggyback your complaint on top of another complaint about your fellow member’s assumption of bad faith, as you did above, but it is what it is, as they say.
Is the system perfect? Of course not. But you, and others, who believe that we have an agenda, and that we are not interacting in good faith with our fellow members (because that is what you, and we, are) could not be more wrong.
I go by my experience and what I see. I don’t assume anything.
My understanding, as per David French, is that by itself isn’t obstruction. However, if you put it in line with other stuff, the case is stronger.
So,
There’s your answer, spin.
Trump is guilty as sin.
No notes was part of the operation. Easy to say, I don’t recall.
Comey appeared to change his standard of work if he does not have notes regarding Obama, Lynch or HRC.
See, with Trump, Comey disagreed, and needed ammo to achieve the agenda of impeachment, or at very least serious disruption.
#FResistance
The difference was that Nixon knew the impeachment process was destructive. Could it be said he fell on his sword for the nation by resigning?
WJC did not do that–and probably never considered doing anything that didn’t serve his own purpose.
@mikescapes The case I was referring to was Flynn’s call with the Russians. At the time of Trump’s talk with Comey, the investigation into whether Flynn had broken any laws during his time in the transition with respect to phone calls to Russian diplomats was already complete (as done by either the whitehouse or DOJ ) and had shown that Flynn had not broken any laws, but was improperly misleading the V.P. I believe that the DOJ had confirmed to Trump that Flynn hadn’t done wrong in the call even before Trump fired Flynn. So, when Trump was talking to Comey, he already knew with good certainty that Flynn was not guilty of any crime in relation to his calls with the Russians during the transition.
This does not mean that that Flynn was not under investigation for other matters or had committed other wrongs. However, in terms of what I think was the context of the Trump, that is the Flynn Russia call, Trump was correct that “Flynn hadn’t done anything wrong” as far as I know.
This means that if the FBI wanted to investigate Flynn, it would have to be in relation to another situation, other things Flynn may have done.