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Comey’s Testimony: A Limited Dissection
Comey’s position on leaker
On political pressure
The following is a news analysis and commentary
I know a number of government officials and employees who like and respect former FBI Director James Comey. Much has been written about how damaging his Thursday testimony was for President Trump. It’s easy to find articles such as these on NBC, in the Washington Post and in The Atlantic.
The fact that Comey was willing to give testimony that sometimes reflected poorly on his own behavior doesn’t necessarily mean he told the truth on all matters, but seems to weigh in his favor on the honesty scale. The following is a compilation of some of my questions, comments and observations after reviewing his testimony.
Former FBI Director James Comey
Comey’s testimony exposed major news media inaccuracies
1. Intercepted calls
Comey testified that a widely-circulated New York Times report was false. The article began with: “Phone records and intercepted calls show that members of Donald J. Trump’s 2016 presidential campaign and other Trump associates had repeated contacts with senior Russian intelligence officials in the year before the election, according to four current and former American officials.” (As of this writing, I cannot find a correction issued by the Times.)
2. Comey’s supposed request for more resources
Multiple anonymous sources had claimed in news reports that Comey was fired after signaling he was stepping up the Russia probe by asking the Justice Department for more resources. Justice Department officials repeatedly denied that. In a press release Thursday night, the Department of Justice noted: “Despite previous inaccurate media reports, Mr. Comey did not say that he ever asked anyone at the Department of Justice for more resources related to this investigation.”
NBC had quoted anonymous “Congressional and law enforcement officials.”
The LA Times had quoted “two anonymous officials.”
TheNew York Times had quoted “four anonymous Congressional officials.”
3. Comey telling Trump he’s “not under investigation”
Comey testified that he, indeed, privately assured President Trump three times that he wasn’t under investigation. That confirms what the President claimed in his letter firing Comey. Yet many news reports and pundits scoffed at the time, and even incorrectly stated that the President was telling a “lie.”
Among those who were wrong (excerpted from AP and US News and World Report on May 10 that stated the President’s “claim” was “questionable” and “if true… would be a startling breach of protocol”):
“Several former Justice Department officials and federal prosecutors…doubted that Comey would have spoken in the terms used by Trump, or even offered any assurances at all.”
Peter Zeidenberg who “prosecuted public officials on corruption charges for the Justice Department’s public integrity unit”:
Comey would not ever, in my opinion, say this to Trump…Wouldn’t happen.–Peter Zeidenberg, a Justice Dept. public corruption prosecutor
Zeidenberg continued, “It is an ongoing investigation; there is no possible way that Comey could a) know that Trump was cleared of any misconduct at this stage of the investigation and b) it would be inappropriate for the FBI director — or any agent — to advise a potential subject of an investigation of their status directly.”
Harvard Law School professor Laurence Tribe, who served in the Obama Justice Department:
[Trump’s] self-serving assertion was completely implausible. To put it bluntly, it appears to have been a blatant lie.—Harvard Law School professor Laurence Tribe
Tribe continued, “It would have violated well-established DOJ rules and policies for the director to offer any such assurance to anyone, especially the president. In addition, given Comey’s dependence on the president for retention of his role as head of the FBI, offering that assurance would be highly unethical and at odds with Comey’s reputation as a man of integrity.”
Given the facts and the original reporting, it would seem to beg a follow up examining Comey’s admission which, according to Tribe and Zeidenberg, was at odds with ethics.
Comey testified that his boss, then-attorney general Loretta Lynch, directed him not to call the Hillary Clinton email probe an “investigation,” but to refer it as a “matter”– which Comey said was an “inaccurate” characterization. “That gave me a queasy feeling,” he testified. However, Comey says he did it anyway and, as bothered as he says he was, he didn’t report the political pressure to any authority.
Comey previously testified that he was so upset that Lynch met with former President Bill Clinton on a Phoenix tarmac on June 27, 2016 during the Hillary email investigation, it prompted him to make the decision to go public to explain his reasoning on why Hillary would not be charged. Again, as bothered as he now says he was, he didn’t take steps to report to an authority and continued to serve as FBI Director.
Based on his testimony about his meeting with the President, it appears Comey may have been executing a plan (or perhaps contingency plans in the event he was questioned or his job threatened):
1. Comey kept secret what he says was an improper “directive” the President supposedly issued at the meeting, even failing to raise the issue with the President.
2. Instead, Comey secretly wrote down his negative interpretation of the conversation in a memo, he says, and held the memo secretly.
3. Comey says he then made sure his work product memo was unclassified so that it could be easily accessed in a future, theoretical investigation against Trump.
4. Once fired, Comey leaked the memo to the press through a third party to prompt appointment of a special counsel.
Leaking the Memo
Comey’s stated reason for leaking the memo doesn’t entirely make sense to me.
Comey said that after President Trump suggested there might be a “tape” of their conversations, “I woke up in the middle of the night on Monday night, because it didn’t dawn on me originally that there might be corroboration for our conversation. There might be a tape. And my judgment was, I needed to get that out into the public square.”
Comey also testified, “It… occurred to me in the middle of the night — ‘holy cow, there might be tapes. And if there tapes, it’s not just my word against his on — on the direction to get rid of the Flynn investigation’.”
It’s unclear why the possible existence of tapes prompted Comey to anonymously leak his memo, especially since the tapes would presumably prove his point better than an uncorroborated memo.
Comey further testified that one motive of leaking his memo was that he hoped it would prompt appointment of a special counsel.
I didn’t [leak my memo] myself for a variety of reasons, but I asked [Columbia law school professor Daniel Richman] to because I thought that might prompt the appointment of a special counsel,” Comey testified.
In other contexts, before documents such as Comey’s personal memo are released to the public or press, all “stakeholders” (in this case, that would include the President) are afforded the chance to weigh in on whether they want to exert privilege or make the case for redactions. Comey secretly leaking his memo to the press through a third party deprived the President of this routine opportunity.
These are some of the comments Comey has made in the recent past about leaks:
“It is frustrating when the FBI refuses to answer this committee’s questions, but leaks relevant information to the media. In other words, they don’t talk to us, but somebody talks to the media.”
“Director Comey, have you ever been an anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation?
“COMEY: There have been a variety of leaks — well, leaks are always a problem, but especially in the last three to six months.”
“COMEY: But if I find out that people were leaking information about our investigations, whether it’s to reporters or to private parties, there will be severe consequences.”
“In October, I sent that letter [reopening Hillary Clinton investigation] only to the chairs and rankings. Yes, did I know they really going to leak it? Of course, I know how Congress works, but I did not make an announcement at that point.”
Many refer to allegations of “obstruction of justice,” but for that to be at issue, wouldn’t there have to be actual “obstruction”? Comey testified that he didn’t “obey” Trump’s alleged “directive.” At worst, it seems as though the allegation would be “attempted obstruction.” As bad as that would be, it’s worth noting that there’s a big difference. (Someone who asks someone to rob a bank that never gets robbed… wouldn’t be charged with the same crime as he would if the bank actually got robbed.)
Whether it was his former boss, Loretta Lynch, or Donald Trump’s supposed interference, Comey remained publicly silent about these breaches at the time and stayed on the job.
He had what seemed like an opportunity to speak up about the alleged Trump obstructionism during May 3 testimony to the Senate Judiciary Committee, but remained silent about it. Comey was questioned by Sen. Mazie Hirono, D-Hawaii:
HIRONO: So if the attorney general or senior officials at the Department of Justice opposes a specific investigation, can they halt that FBI investigation?
COMEY: In theory, yes.
HIRONO: Has it happened?
COMEY: Not in my experience. Because it would be a big deal to tell the FBI to stop doing something that — without an appropriate purpose. I mean, where oftentimes they give us opinions that “we don’t see a case there and so you ought to stop investing resources in it.” But I’m talking about a situation where we were told to stop something for a political reason. That would be a very big deal. It’s not happened in my experience.
Preorder my new book: The Smear: How Shady Political Operatives and Fake News Control What You See, What You Think and How You Vote
2008 December: President Obama nominates Hillary Clinton for secretary of state. 2009 Jan. 13: Reports say the clintonemail.com domain was established. Jan. 21: Senate confirms Clinton as secretary of state. March 18: Clinton will later name this as the date she began using a private server for government business. 2012 Sept. 11: Islamic extremists launch […]