It’s only been a month since President Donald Trump fired FBI Director James Comey on May 9. Comey’s testimony today before the Senate Intelligence Committee climaxed a rush of developments since then. Look elsewhere for prescience. On May 11 in “Comey’s Exit and the Artificial Storm” I flatly stated “There will be no independent counsel,” but the next morning, May 12 Trump tweeted that Comey “better hope” there were no tapes of their conversations. Comey testified today that this prompted him to leak memos he had written detailing Trump’s efforts to persuade him to drop prosecution of General Flynn in February. The uproar over those memos in turn induced Deputy Attorney General Rosenstein to appoint Robert Mueller as Independent counsel on May 17.
The meeting at issue occurred at the end of a counter-terrorism meeting at the White House on February 14. President Trump excused the other participants in the meeting – including Comey’s superior, Attorney General Jeff Sessions, and Trump’s son-in-law Jared Kushner – from the room so Trump could meet alone with Comey. It was in the private meeting 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.”
It is arguably persuasive evidence of Trump’s guilty mens rea that he cleared the room before the meeting although one Republican Senator noted at today’s hearing that Trump expressed essentially the same view about Flynn and the investigation publicly in a tweet within a day of the private Comey meeting. While he obviously thought there was nothing wrong with the sentiment, quite possibly Trump thought Comey might be more amenable in private.
Trump is so ham-handed that he no doubt thought he was being subtle by couching his wishes in terms of “hope” rather than a plain order. Trump’s approach was more appropriate for a New York City big shot talking to a Police Captain about a friend’s OUI.
Comey’s written summary of his conversations with Trump also revealed that, without being asked by Trump, Comey three times told the President that he was not personally a subject of the investigation. The #nevertrump true believers switched without pause from impeaching Trump for colluding with the Russians during the election to impeaching Trump for Obstruction of Justice.
It is always disappointing when watching an important Senate hearing to observe the Senators posturing more than actually trying to get information from witnesses or effectively testing the credibility of statements. They either make a speech or ramble. If they actually ask questions they read prepared questions and usually, whatever the answer, just go on to the next question, probably prepared by staff.
After watching lawyers cross-examine for 25 years and doing a few myself in the previous 20 years, it is dispiriting to see an answer crying out for cross-examination ignored while the Senator goes on to his next prepared question in his seven minutes of national television. One key to good cross-examination is listening the answers before going on the the next question. These guys just read the question and while it is being answered start getting ready to read the next prepared question.
For example Comey’s prepared statement sanctimoniously expressed his concern about leaks Then under questioning Comey admitted that he had a friendly professor at Columbia Law School leak the content of his memos about his private conversations with Trump to the New York Times. He was not pressed on his silly statement that he used a third party for the leak because he had promised to spend some time with his wife. He explained that talking to reporters was like feeding seagulls on the beach. Everyone laughed No one followed up. No one asked why he didn’t just release the memos and refuse to comment rather than try to hide his identity.
In spite of his experience, no one on the Intelligence Committee asked him if he had leaked any other information about the Russian election interference or Flynn investigations. The FBI has been the source of a torrent of such leaks. It’s reasonable to conclude that Comey has been the source of many, consummate bureaucrat, that he is.
Comey opined that he didn’t think it was for him to conclude whether Trump’s expressed “hope” could be considered an Obstruction of Justice. No one inquired whether that was odd reticence from the man who usurped the function of the Attorney General or Deputy Attorney General in declining to prosecute in the Clinton private server investigation, uh, matter.
Comey was at least lightly questioned about why, after a statement he thought troubling and may constitute Obstruction of Justice, he did not report it to the Attorney General. He said only that he thought Sessions would be recusing himself at some point in the future. He said that he did report the incident to his top staff including Deputy Director McCabe.
On May 11, Deputy Director McCabe testified “There has been no effort to impede our investigation to date.” No Senator asked Comey, for example, whether that statement were true. Comey himself had testified on May 3 that no one had tried to get him to stop an investigation for a political reason.
Comey professed to be “stunned” into silence when Trump made the Flynn comment. He tried to suggest that he was just awed but the office, although he knew he should have said something. This is the man who had faced down the Bush White House when he disagreed with White House decision to have the Attorney General reauthorize domestic surveillance.
If Comey had not been fired he would still be at the FBI collecting memos for future use in bureaucratic wars like a latter day J. Edgar Hoover.Comey is a skilled political and bureaucratic infighter. He was the moving force behind the appointment of his friend Patrick Fitzgerald as a Special Prosecutor to investigate the “outing” of Valerie Plame and Fitzpatrick’s pursuit of Dick Cheney’s Counsel Scooter Libby, long after Patrick knew Libby was not involved in the leak. Comey admitted in his testimony that the purpose of his leak of his communications with Trump was to provoke the appointment of a Special Prosecutor.
Comey turned back upon Trump, the President’s tweet following the leak of the private Flynn conversation memos, that Comey “better hope” their conversation wasn’t taped. Today Comey invited Trump to release any tapes of their discussions which tends to support Comey’s account of them. On the other hand, Trump’s tweet may have prevented Comey from exaggerating Trump’s exhortations.
None of this is to suggest Comey is a political partisan. After infuriating Republicans by criticizing but exonerating Hillary Clinton in the private server investigation, as reported in “Hillary skates again,” Comey then angered Democrats by reopening the investigation shortly before the election. Comey also testified during today’s hearing that he didn’t like it when Attorney General Lynch told him to refer to the case of Hillary Clinton’s private email server as a “matter” rather than an “investigation,” following the line of the Clinton campaign. Comey has said the FBI agents later groused that the agency name should be changed to “Federal Bureau of Matters.” As suggested in “James Comey, Pontius Pilate,” James Comey is not an adherent of anything but burnishing his self-promoted personal reputation for rectitude.
Trump badly miscalculated three times on Comey. He should have replaced Comey immediately upon entering office. At that point the Democrats disliked Comey more than the Republicans. Trump could have appointed someone like former New York City Police Commissioner Ray Kelly. While Trump thought he could charm or control Comey, the FBI Director tried to maintain his office by reminding Trump of his knowledge of accusations of information against him. Comey’s private briefing to the President-Elect about salacious gossip circulated about him was soon after, it may be recalled, leaked to the press.
The President’s second Comey mistake was firing him. Lyndon Johnson knew the benefit of keeping J. Edgar Hoover “inside the tent, pissing out, rather than outside the tent pissing in.”
Finally, Trump’s third Comey error was the challenging tweet disparaging Comey after the firing prompting Comey to leak his memos. If that may be considered the cause of the appointment of the Independent Counsel, it could be the worst mistake of all.
The Independent Counsel may well hang over Trump’s head for the rest of his Presidency. Robert Mueller is a regular Inspector Javert, tough and persistent. A friend who represented somebody being threatened by Mueller to obtain cooperation tells me that Mueller takes obvious pleasure in the chase. While I am not usually a reader of the Washington Post, a piece there today observed that the appropriate comparison to the situation is not Watergate but the Whitewater investigation by Ken Starr. As Clinton White House Counsel Bernard Nussbaum has observed “When the Whitewater investigation started, Monica Lewinsky was a junior in college.