Cross-posted from The New York Times
Emily Bazelon, a staff writer for The New York Times Magazine and the Truman Capote Fellow at Yale Law School, and Elizabeth Goitein, the co-director of the Liberty and National Security Program at the Brennan center, watched James B. Comey’s testimony before the Senate Intelligence Committee today, where the former F.B.I. director discussed the investigation into Russian interference in the presidential election.
Emily Bazelon: Now that the public hearing is over, let’s think about what Comey accomplished today. His probity and patriotism and commitment to public service were on full display. He backed up his growing and, eventually, deep-seated suspicion of the president. He refrained from drawing a conclusion about obstruction of justice, while underscoring the gravity of what’s at stake for the Russia investigation and for the rule of law. I know Trump defenders will continue trying to wave it all away — it’s already becoming clear how they want to do so — but Comey keeps making it harder for them.
Elizabeth Goitein: Emily, I agree with you that Comey acquitted himself well, especially given that some aspects of how he handled matters are hard to explain. I didn’t see any senators who were eager to tackle him on credibility.
Moving forward, if this hearing is any indication, Trump’s defenders will be trying to portray Trump’s pressuring Comey to drop the Flynn investigation as an isolated incident, a president who simply didn’t know any better going a bit too far trying to get a friend off the hook. It will be up to lawmakers, journalists and others to keep the focus on the bigger picture and keep pushing for answers on the nature of Trump associates’ ties to Russia.
But let’s take a real step back to the very beginning: Last summer and fall, a hostile foreign power used hackers to try to get a candidate, Donald Trump, elected. The F.B.I. determined there was sufficient evidence that Trump’s campaign colluded with Russia in this effort to open an investigation, which continues to this day. The president asked Comey, then the F.B.I. director, to pledge his loyalty and to shut down one part of the investigation. When the director didn’t comply, he was fired. And the intelligence committee hearing on all of this proceeded like it was just another partisan fight about tax cuts. The word “surreal” comes to mind.
Emily: For me, the specific takeaway is actually something we already knew: Comey said: “I take the president, at his word, that I was fired because of the Russia investigation. Something about the way I was conducting it, the president felt created pressure on him that he wanted to relieve.” Comey was clear Trump didn’t ask him to stop the Russia investigation. But the president wanted to change the course of what the F.B.I. was doing. In this context, whatever his rationale, and whether or not he broke the law, is that acceptable conduct for an American president? It’s a serious question. It should transcend politics.
The full conversation that they had during the hearing is below:
Emily: James Comey, the former FBI director fired by President Trump, begins his much-anticipated testimony. NPR’s Justice Department reporter, Carrie Johnson, said she came to the office with the day’s meals prepared. I took a red-eye home from Denver last night and I’m making a big pot of coffee.
Comey’s prepared remarks, which were released yesterday, were markedly understated, to the point that McSweeney’s juxtaposed bits of them with lines from Kazuo Ishiguro’s classically sublimated novel “Remains of the Day.” No showboating here! Is Comey’s evident determination to be other than Trump’s caricature of him itself proof of the president’s belligerent skill in bringing his influence to bear?
Of course, the key questions going into today were all about influence, and pressure, and how much of each the president can legitimately exert over the F.B.I. director who was investigating his campaign and key players in his administration.
Liza, what did we learn from the released statement yesterday that mattered most? I saw Trump’s defenders and critics both doubling down. Is that because we are in a grey area in which we see the president tromping all over norms of F.B.I. and Justice Department independence, without necessarily seeing clear, indictable proof of the crime of obstruction of justice? Or is that the wrong standard, since what matters is the political bar for obstruction, which means it’s up to Congress? It seems as if these shouldn’t be partisan questions. Yet they are.
Elizabeth: Hi, Emily. Nice to be sharing a page with you! It is, indeed, remarkable to see such a divided and partisan response to something that seems so clear-cut. News stories had reported that Comey kept memos of private conversations with Trump — conversations in which Trump demanded Comey’s “loyalty,” and told him: “I hope you can see your way clear to letting this go, to letting Flynn go,” referring to his National Security Adviser who was under investigation. Comey’s written testimony confirmed every last detail from those reports and added a few more regarding additional conversations he had with the president — including a cryptic reference by Trump to the “the McCabe thing,” suggesting that our president might have his cross hairs on the acting FBI director.
There’s no legal “grey area” that I can see here. Yes, intent matters, but the president helpfully spelled out his unlawful intent (he seems to do that a lot, by the way): to get Comey to back off the Flynn investigation. That’s called obstruction of justice. The statement by Trump’s lawyer that the president feels “completely and totally vindicated” by Comey’s testimony was particularly bizarre given that Trump and the White House had both flatly denied the president ever made such a request. True, Comey’s testimony confirms that as of March 30, the F.B.I. wasn’t investigating Trump himself, but that’s hardly proof of innocence. After all, as Comey points out, that could change. I guess Trump and his supporters feel “vindicated” because… he’s still the president?
Emily: In the Washington Post, one of the Watergate prosecutors, Phllip Lacovara, argues that Comey’s prepared remarks laid out enough evidence for what what Lacovara calls a “prima facie” case of obstruction of justice. For now, though, I’m going to take the advice of University of Texas law professor Steve Vladeck and move away from the narrower legal question. Whether Trump’s discussions with Comey about Flynn do or don’t constitute the crime of obstructions “misses the point,” Vladeck writes on Twitter. “The shameless interference is the story.”
An antidote to my dismay about partisan reactions: On the National Review, conservative writer David French describes Comey’s account of the exchange in which Trump asked him for loyalty and concludes:
“There’s no serious argument that this is appropriate behavior from an American president. Imagine for a moment testimony that President Barack Obama or a hypothetical President Hillary Clinton had a similar conversation with an F.B.I. director. The entire conservative-media world would erupt in outrage, and rightly so. The F.B.I. director is a law-enforcement officer, loyal to the Constitution, not the president’s consigliere.”
Elizabeth: I agree with Lacovara. Yes, to some extent, all of this obstruction talk is academic. The Department of Justice has long taken the position that criminal charges can’t be brought against a sitting president because that would “undermine the capacity of the executive branch to perform its constitutionally assigned functions” (true enough). As long as that remains the Department’s position, Attorney General Jeff Sessions couldn’t bring charges even if he wanted to, which he doesn’t. But that’s not quite the same as saying that whether the president violated a criminal law “misses the point.” It matters because it is perhaps the most egregious in a string of incidents that underscore the president’s disdain for the rule of law… and also has some relevance to a little something that begins with the letter “i.”
Emily: The chairman of the Senate Intelligence Committee, Richard Burr, kicked things off with a question to Comey about whether Trump asked for loyalty to create a patronage relationship. Good place to start.
Elizabeth: Mark Warner, the committee’s vice chairman, made an important point, too: A lot of Comey’s actions have been controversial and raise questions of their own. (Exhibit A: his decision to publicly express his opinions about Hillary Clinton’s use of a private e-mail server.) But we’re not here to catalogue Comey’s missteps; he’s no longer a government official. The question is whether the president tried to shut down aspects of the Russia investigation. On that question, we have no reason, at this point anyway, to question Comey’s credibility.
Emily: Comey started with his strength: A call-out to the F.B.I. for its work, and an aggressive accusation that the Trump administration “defamed” him and the agency to justify his firing. “Those were lies, plain and simple,” Comey said. It was smart to begin there, with Comey’s deep institutional history with the agency he led. Plus he sounded like he was talking from the heart.
Elizabeth: Burr asked Comey whether the president or anyone else asked him to stop the Russia investigation. Comey’s answer: That’s not how he understood Trump’s request. In other words, the idea was to shut down the Flynn investigation specifically, not the Russia investigation writ large.
But Comey was notably reluctant to say that this was not obstruction of justice. How many investigations does the president need to try to derail before it becomes a problem? And isn’t there a chance that Trump knew something about Flynn that the investigators don’t? If there was collusion with Russia, and if Flynn played a key part in it, then deflecting the investigation away from him could have significant ripple effects on the larger inquiry. They can’t necessarily be neatly separated in the way Burr seemed to be trying to do.
Emily: Yeah, Comey wants to be providing the facts, and his gut reaction — “disturbing” — while leaving the legal conclusions to the senators questioning him, and to Bob Mueller, the former F.B.I. director who has been named special counsel for the Russia investigation.
Comey said he had no regrets about his decision, last July and October, to publicly discuss the F.B.I.’s investigation into Hillary Clinton’s private email server. What he did broke with Justice Department practice. Democrats have intensely criticized him for it.
I wonder, Liza, what you think of Rich Lowry’s argument in Politico that Comey’s willingness to talk about ongoing investigations helps explain why Trump thought he could ask Comey to publicly say that the president himself wasn’t under investigation. We now know, from Comey’s remarks, that the F.B.I. director had privately assured Trump on that point. Lowry writes, “It wasn’t crazy for Trump to wonder why, with so much blabbing, Comey couldn’t simply let this be known?”
I don’t really think Trump was drawing conclusions in the way that Lowry implies. It seems more likely that the president was just trying to get what he wanted. But is there something to the underlying idea, that Comey himself scrambled the rules for what should and shouldn’t be public, in the context of a highly politicized F.B.I. investigation?
Elizabeth: I could see how Comey’s public comments about Clinton might have contributed to Trump asking Comey to “lift the cloud” by publicly stating that Trump wasn’t (as of March 30, anyway) under investigation. Some of the blame for that one probably lies with Comey. Although, really, is it too much to expect the president to have a working knowledge of the most basic principles of law enforcement? In any event, Comey’s public discussion of the Clinton case can’t explain Trump asking Comey to let the Flynn investigation go.
And by the way, how telling is it that the former director of the F.B.I. testified that he felt he needed to document every encounter with Trump because, given “the nature of the person,” he felt Trump might lie? He actually used the “L” word! It’s a relief to hear, after listening to all the tortured synonyms reporters come up with to try to avoid calling it what it is. It’s not just a personal foible, and acknowledging it isn’t an ad hominem attack. When the president lies, it undermines the workings of democracy.
Elizabeth: Emily, here’s a question. In Comey’s written testimony, he said he didn’t agree to Trump’s request that he publicly state that Trump wasn’t under investigation, because making such a public statement would create a “duty to correct” if the situation changed. Comey has now publicly testified that Trump wasn’t under investigation during the time he served as F.B.I. director. Does that now create an obligation for the F.B.I. to notify the public if that status has changed, or if it changes in the future?
Emily: Well, Comey’s statement about the state of play as of March 30 would create an obligation for the F.B.I. to tell us if Trump is now being investigated if the agency follows the practice that Comey set last year, when he promised to update Congress about the Clinton investigation. I’ve got to say I think this is really a bad road for the F.B.I. to go down. Updates about ongoing investigations mean that unproven accusations swirl around people who may have done nothing wrong, or at least not enough to justify charging them with a crime.
Trump is right about the “cloud” hanging over him. Comey set a bad precedent last summer and I hope the F.B.I. ditches it. Though with Washington leaking like a sieve, it’s very hard to imagine how the agency could start investigating Trump personally and keep it a secret. But really, it’s for Congress — in particular the Senate Intelligence Committee —to give a public accounting.
Elizabeth: Senator Dianne Feinstein asked something I was hoping someone would ask: Why does Comey think he was fired? Somewhat ironically, having just explained that he took notes of meeting with Trump because he was afraid Trump would lie, Comey said that on this matter he’s “taking the president at his word.” Trump said publicly that when he fired Comey, he had “the Russia thing with Trump and Russia” on his mind.
Another thing that struck me, as I watched Senator Marco Rubio’s line of questioning, is that the defense of Trump is taking form. He didn’t order Comey to shut down the whole Russia investigation, he merely asked Comey to shut down the inquiry into Flynn. And even though the “cloud” he asked Comey to lift related to the entire Russia investigation, his specific ask was merely to tell the public he wasn’t under investigation. (Indeed, this talking point seems to have found its way to Donald Trump Jr.’s Twitter account.) What’s striking about this defense is how low it sets the bar: Imagine defending Nixon by pointing out that he didn’t erase every tape he created and didn’t order a break-in of every facility used by Democratic operatives.
Emily: On Twitter, Ruth Marcus of The Washington Post asks, “Whoa! What is this secret Sessions thing that would require him to recuse?” Yes, what?! One Comey subtheme is Sessions’s failure to protect the F.B.I’s independence from the White House. Senator Susan Collins hit this too, in her questions. Now it sounds like Sessions is more mixed up in the Russia investigation than we know. A couple of days ago, Sessions made headlines with reports that he’d offered to resign because of Trump’s frustration with him. If Sessions wanted to resign, he could go ahead and do that, any time. But those headlines made him sound distant from Trump. More distant than he really is?
Elizabeth: At the beginning of the hearing, we heard a lot about how Russia interfered in our election, and now we’re hearing a lot about ways in which the president and other senior administration officials have acted improperly in connection with the investigation. But there’s a missing link, which hasn’t gotten a lot of airtime: The possibility that Trump’s campaign may have colluded with Russia. There’s enough smoke that the F.B.I. made an official decision to look for fire. And if it turns out the campaign assisted Russia in any way, that’s a political crime that would make the Watergate break-in look benign.
Even if members of the campaign weren’t in on the action, Congress should still be asking questions about the relationships between Trump’s associates and Russia. There’s nothing illegal about administration officials having personal or professional relationships with people from another country, but when a significant proportion of the president’s inner circle has financial or political ties to a hostile foreign power, there’s a real question as to whether that administration is truly acting in the best interests of this country.
Emily: Stepping back for a second, Comey said of Trump talking to him alone on February 14, after asking other officials to leave the Oval Office: “So why did he kick everyone else out of the Oval Office? To me, as an investigator, that is a very significant fact.”
The president’s conduct put Comey on high alert. He wanted to leave no doubt about that today (or “no fuzz,” to borrow a phrase Comey has been using). But some senators suggested with their questions that Comey’s level of alarm casts doubts on his decision not to do more in response to Trump. It’s like they want their Hollywood moment of high drama, rather than the nuanced, incremental moves Comey made to shield the investigation from Trump’s interference. Comey was tiptoeing around a new president. Less satisfying in retrospect, but understandable in the moment.
Elizabeth: Emily, you called it — the senators are definitely digging deep into what Comey did or didn’t do. I’ll stipulate that much of Comey’s conduct strikes me as bizarre: The vicarious leaking of his memo probably tops that list, and his reason for not alerting Sessions of Trump’s misconduct, at a time when Sessions was still overseeing the Russia investigation, is pretty thin. If all this had come out a month ago, or if Comey hadn’t been fired, I would want answers to these questions, too. But we’re in a different world now. James Comey is unemployed; Donald Trump is still the president. I’m infinitely more concerned with Trump’s transgressions at this point.
Emily: I buy Comey’s explanation of why he didn’t alert Sessions, based on his description earlier this morning that the F.B.I. knew things that would make the attorney general’s continuing involvement in the Russia investigation “problematic.” My sharp colleague Charlie Savage pointed out that it sounded like Comey was thinking about the possibility of obstruction in February, or even January. If he had reason to think Sessions should wall himself off, then alerting him would have been a bad idea.
I’m still getting my mind around Comey’s statement that he asked a friend (Dan Richman, a Columbia University law professor has confirmed he was that person) to leak Comey’s memo about Trump to the press in order to trigger the appointment of a special counsel. Wow! Trump doesn’t play chess, but that’s what Comey was doing. It also suggests that he didn’t think the Justice Department should handle the investigation through normal channels.
Is that because Comey had little confidence in Sessions, recusal or no recusal, and perhaps also in Acting Attorney General Rod Rosenstein? Maybe. But Comey could also have been making a judgment that wasn’t personal. This is the kind of highly charged, sensitive investigation that requires as much independence as the law allows. Since Watergate, the country has tried different models. They’re all imperfect. The special counsel is the best option we have at this point. Until Comey’s leaked memo, it looked out of reach.
Elizabeth: Totally agree, Emily, that a special counsel is the best option for the criminal investigation. But we shouldn’t let Congress off the hook, because there are broader questions that need to be answered here. We need to know, for instance, what systemic vulnerabilities might have enabled Russia’s interference, so we can take steps to shore up our defenses before the next election. We also need to know about ties between Trump officials and Russian interests that may not be criminal in nature, but might still compromise officials’ ability to act in America’s best interests.
But moving on, we’ve repeatedly heard suggestions today that if Trump was only trying to get the F.B.I. to back off from one person, Flynn, that’s not a big problem. But of course it is! For one thing, we have no idea how central Flynn might be to the larger Russia investigation (as I mentioned before). Even more important, this goes to the heart of one of the most dangerous attributes of this president: His lack of respect for the rule of law.
Emily: Yes, I’m with you: It’s unconvincing for Republicans to minimize Trump’s pressure on Comey about Flynn. Comey said of Flynn, “there was an open F.B.I. criminal investigation.” That’s all we need to know to understand why Trump should have stayed out of it.
Senator Kamala Harris pushed Acting Attorney General Rod Rosenstein Wednesday on Mueller’s independence. Rosenstein said Mueller wouldn’t be fired because of his integrity, acting F.B.I. Director Andrew McCabe’s integrity and Rosenstein’s own integrity. Harris wanted Rosenstein to promise that in writing. He didn’t. Today, Harris has prompted Comey to underscore the importance of Mueller’s independence. It’s vital, and yet if Mueller is untouchable it’s because of the political fallout firing him would have — not the special counsel law.
(Image: Flickr/ Richard Gerard)
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