Comey Maybe: Sorting Through Today’s Facts

2071773_1280x720The bad news is this morning’s Union Pub patrons and Comey Day spectators were left wanting in their bids for Tweet-driven drinks on the house. The good news is we were able to watch and listen undiverted by a Presidential tweetstorm as former FBI Director James Comey elaborated on his prepared opening statement to the Senate Select Committee on Intelligence.

I. What Did We Learn?

Several items stuck out for me this morning, both as a citizen and as an attorney who works on and enjoys the long dance of government investigations.* Coincidentally, those items parlay nicely into broader issues I have had on my mind as the Comey-Trump-Russia-Mueller saga unfolds.

Let’s start where we always must: with the facts.

At the top of the meeting, Comey responded to Chairman Burr that he has “no doubt”:

  1. “Russia attempted to interfere in the 2016 elections,”
  2. “the Russian government was behind the intrusions in the D triple C systems and the subsequent leaks of that information,” and
  3. “the Russian government was behind the cyber intrusion in the state voter files.”

It is important to note, however, that Comey also stated he is confident “that no votes cast in the 2016 presidential election were altered.” Nevertheless, regardless of whether votes were altered and the election fairly won, the plain fact is the former head of our Nation’s top investigative agency has no doubt that the Russian government did attempt to interfere in our presidential election and successfully breached several governmental and political databases. This is why Senator Warner was sure to point out that the Committee’s continued work on the subject is emphatically

not about who won or lost. And it sure as heck is not about Democrats versus Republicans. We are here because a foreign adversary attacked us right here at home, plain and simple.

That truth cannot be forgotten.

II. On President Trump’s Actions Specifically

Focusing in on the more salacious topic, Comey agreed with Senator Rubio that President Trump ultimately asked three things of then-Director Comey: 1) for Comey’s loyalty, 2) for Comey to “let . . . go” of the investigation into Mike Flynn’s representations about his conversations with the Russian ambassador, and 3) for Comey to share with the American public that President Trump was not himself the target of an investigation.

As Comey explained in his prepared opening statement, and in his colloquy with Senator Rubio, Comey first responded to President Trump’s statement that, “I need loyalty, I expect loyalty,” by explaining the historical reasons for the FBI’s independence within the Executive Branch. Ultimately, however, Comey assured President Trump that he would always offer “honesty” and agreed that the President could expect “honest loyalty.” Comey recognizes he and the President may have interpreted that concession differently, but he suggests it was not a battle worth fighting further at the time.

As to President Trump’s request that then-Director Comey let the Mike Flynn probe go, Comey recalls the conversation as follows:

The President…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.’ I replied only that ‘he is a good guy.’ (In fact, I had a positive experience dealing with Mike Flynn when he was a colleague as Director of the Defense Intelligence Agency at the beginning of my term at FBI.) I did not say I would ‘let this go.’

The White House has disputed this account, claiming the “President has never asked Mr. Comey or anyone else to end any investigation, including any investigation involving General Flynn.” Even taking Comey’s word as Gospel for the moment, it is important that we keep our facts cleanly organized: when Senator Burr asked Comey point blank — “did the President at any time ask you to stop the FBI investigation into Russian involvement in the 2016 U.S. Elections?” — Comey’s response was an unreserved, “Not to my understanding, no.” When Senator Burr further inquired — “Did any individual working for this administration, including the justice department, ask you to stop the Russian investigation?” — Comey offered a simple but confident, “No.”

In his prepared opening statement, Comey elaborated,

I had understood the President to be requesting that we drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December. I did not understand the President to be talking about the broader investigation into Russia or possible links to his campaign.

In fact, rather than ask Comey to end investigations into Russian interference with the elections and any possible collusion with his campaign, President Trump — according to Comey’s response to Senator Rubio — stated something to the effect of, “if some of my satellites did something wrong, it’d be good to find that out.” So as to President Trump’s second “ask” of then-Director Comey, the facts are that President Trump did tell the Director in regard to the Mike Flynn Probe “I hope you can let this go,” but he never asked or pressured the Director to unwind investigations into Russia and possible links to the President’s campaign. Perhaps the distinction is material, perhaps it is not — but let’s be intellectually honest enough to agree there is a difference.

Finally, the President on several occasions asked Comey to publicize a fact that Comey and the FBI shared with Congressional leadership: “that [they] were not personally investigating President Trump.” Comey’s prepared statement and testimony today confirm this truth — that President Trump was not himself the target of an investigation — which the President accurately referenced in his termination letter to Comey.

During today’s hearing, Senator Rubio characterized President Trump’s third request as follows — a characterization Comey agreed with:

can you please tell the American people what these leaders in Congress already know, which you already know and what you told me three times, that I’m not under personally under investigation.

In his prepared statement, however, Comey notes that he

did not tell the President that the FBI and the Department of Justice had been reluctant to make public statements that we did not have an open case on President Trump for a number of reasons, most importantly because it would create a duty to correct, should that change.

This “duty to correct,” of course, is one Democrats are particularly familiar with: it is the duty Comey felt bound by in announcing just 11 days before the 2016 Presidential election that the FBI was reopening its investigation into Hillary Clinton’s emails.

At any rate, as to this third “ask” of Comey, the facts are as follows: President Trump was not personally under investigation; Comey and the FBI shared that information with President Trump and Congressional leaders; President Trump wanted Comey to share this with the American people in order to lift “the cloud” hanging over the Administration; and, Comey had concerns with making that announcement publicly.

III. What Does this Testimony Mean? 

First, it is important to acknowledge the distinction between criminal activity and inappropriate behavior. One can act inappropriately without acting criminally, and we need to get on the same page about this. On the one hand, the President’s supporters cannot simply point to legality as a complete defense to accusations of impropriety. On the other, critics of the President’s actions ought not and may not fairly deem behavior they view as inappropriate thereby illegal.

With respect to the law, today’s hearing seems to support the conclusion we have yet to see any evidence of criminal wrongdoing by the President. (It may be that Mike Flynn and/or others acted unlawfully, but let’s stay on the hot-button stuff for now.) The most obvious crime to consider, which has logically been at the center of this universe, is obstruction of justice. But just how is it that the President’s exercise of his constitutional authority is criminal? This simply cannot be.

As Harvard law professor, Emeritus, Alan Dershowitz, explains it,

The president can, as a matter of constitutional law, direct the attorney general, and his subordinate, the director of the FBI, tell them what to do, whom to prosecute and whom not to prosecute. Indeed, the president has the constitutional authority to stop the investigation of any person by simply pardoning that person.

Let’s unpack this a bit. Then-Director James Comey was the head of the FBI. The FBI, in turn, is “the principle investigative arm of the U.S. Department of Justice.” The U.S. Department of Justice, of course, is an agency of the Executive Branch, led by the U.S. Attorney General, who is appointed by and serves at the pleasure of the President. As it turns out, as we have all been watching materialize, the FBI Director is also appointed by and serves at the pleasure of the President. Indeed, Comey stated in the hearing today,

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.

So, the FBI — with a Director appointed by the President — is an arm of the Department of Justice — with an Attorney General appointed by the President — which is itself an agency of the Executive Branch, of which the President is the head. In a word, Comey worked for Trump. His role as FBI Director was to investigate and refer crimes for prosecution according to the President’s agenda and instruction. That is why Professor Dershowitz has noted that

[h]istorically, Presidents — as head of the executive branch — directed the Justice Department, of which the FBI is part, whom to prosecute and whom not to. President Thomas Jefferson insisted that his attorney general prosecute Aaron Burr for treason. He tried to micromanage the trial, granting presidential immunity to witnesses who would testify against his archenemy. He even tried to influence the trial judge — his cousin Chief Justice John Marshall.

In other words, President Trump could have gone much farther than he did — he could have told Comey directly, “You are not authorized to investigate Michael Flynn. Shut the investigation down.” That would be constitutional.

In another hypothetical, should Comey have recommended charges against Flynn, President Trump could have simply pardoned Flynn. So, how can it be that the President has the constitutional authority to fire Comey, direct Comey’s investigations, and pardon individuals Comey recommends be prosecuted, but cannot say to Comey, “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”? Simple: it cannot be.

To borrow the words of the late Justice Scalia, in his prescient Morrison v. Olson dissent, “[i]t effects a revolution in our constitutional jurisprudence” to rationalize punishing the President criminally for exercising his “constitutionally assigned duties [which] include complete control over investigation and prosecution of violations of the law.”

Justice Scalia further poses the following question:

Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws.

At bottom, it is but a truism that the President, as chief of the Executive Branch, has complete authority over the Executive Branch — including control over its investigations and prosecutions.

So what are we to do if a President exercises his constitutional authority to order his subordinates to stand down on criminal investigations that citizens believe may implicate the President himself and his associates? Justice Scalia addresses this as well:

The checks against any branch’s abuse of its exclusive powers are twofold: First, retaliation by one of the other branch’s use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws . . . Second, and ultimately, there is the political check that the people will replace those in the political branches (the branches more “dangerous to the political rights of the Constitution,” Federalist No. 78, p. 465) who are guilty of abuse. Political pressures produced special prosecutors—for Teapot Dome and for Watergate, for example.

And here we stand, unsurprisingly, in the era of a special counsel and ongoing congressional investigations.

In that light, let me return to a critical point: lawful behavior is not always appropriate behavior, and — as Justice Scalia pointed out — impeachment is an exclusively Congressional power that is exclusively political. That is to say, a determination that President Trump has not acted unlawfully is not a determination that President Trump cannot or ought not be impeached. According to one originalist interpretation, those at the Constitutional Convention believed Congress could impeach the President for anything it adjudged “criminal or even noncriminal behavior amounting to a serious dereliction of duty.”

Professor Dershowitz concurs on this score:

[I]mpeachment is more a matter of politics than law . . . The best response at this time is for Congress to create an independent commission to investigate the entire relationship between Russia and the Trump campaign-administration. Only after such an investigation will we know whether other, more drastic, remedies are appropriate.

Given that legality is not the only relevant standard — neither to impeachment nor our general supervision of the President — much of what Comey shared today is absolutely critical. This is important to bear in mind as we as a Nation — both individually and by way of our duly elected officials, who have the authority to impeach — move forward in assessing the facts.

The facts may not suggest criminality, but they seem to reflect inappropriateness.

Comey’s contemporaneous recollection is that President Trump asked him to let the Mike Flynn probe go. Was this constitutional and lawful? Yes. Was it appropriate? Probably not.

More troubling is the White House’s unqualified statement that the “President has never asked Mr. Comey or anyone else to end any investigation, including any investigation involving General Flynn.” We are now in a world of he-said-he-said. Perhaps that is why Comey expresses hope the President has tapes of the conversations. Regardless of the legality of President Trump’s instructions to then-Director Comey, a discovery that the President and his Administration flatly lied to the American people would be damning indeed. But we simple don’t have that as a fact yet.

It is also concerning that Comey shared in testimony under oath today that 1) the White House’s explanations for his termination were “lies, plain and simple,” and 2) he memorialized his conversations with the President because, in his own words,

I was honestly concerned he might lie about the nature of our meeting so I thought it important to document. That combination of things I had never experienced before, but had led me to believe I got to write it down and write it down in a very detailed way.

This is a very uncomfortable thing to hear from a man that has served with honor and distinction under three Presidents. And it may be for similar reasons that, during Comey’s unexpected one-on-one meeting with the President on February 14th, his “sense was the attorney general knew he shouldn’t be leaving which was why he was” lingering.

It is unsettling indeed when one begins to view the constellation as a whole: the President requesting a private dinner in which he asked for loyalty and expressed a desire for the FBI Director to drop an active investigation into the President’s associate; Comey’s concern after decades of honorable service that this President may lie about private exchanges; Attorney General Sessions’s reluctance to abandon Comey in the Oval Office; and, the White House’s official statement that the President never asked Comey what Comey contemporaneously memorialized the President asked.

Though this may not paint a picture of criminal activity, today’s testimony was vitally important to understanding our President and his ability to deal with deeply important and ongoing investigations into what amounted to an attack on our core political systems by a historically adversarial foreign government.

In summing up these investigations into Russia and any potential collusion with them, Director Comey said it best by explaining it is ultimately

not about Republicans or Democrats. They’re coming after America, which I hope we all love equally. They want to undermine our credibility in the face of the world. They think that this great experiment of ours is a threat to them. So they’re going to try to run it down and dirty it up as much as possible. That’s what this is about and they will be back. Because we remain — as difficult as we can be with each other — we remain that shining city on the hill. And they don’t like it.

Nothing could be more important than understanding this dynamic. We simply cannot afford to lose focus of the weighty geopolitical issues at play on account of tribalist politics.

The issues discussed today are both very concerning and not yet suggestive of criminal conduct. But the check on any President’s abuse of power is a vigilant Congress and an engaged citizenry — both of which must operate coolly on the facts. Perhaps the most important takeaway for “We the People” then, is found in the words of Thomas Jefferson: “If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be.”


* The information contained in this post does not constitute legal advice and is presented without any representation or warranty whatsoever, including as to accuracy or completeness.


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