Now let’s look at some direct quotes from James Comey’s testimony:
1. “Even though I was appointed to a ten-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. And on May 9th, when I learned I had been fired for that reason, I immediately came home as a private citizen. But then the explanations, the shifting explanations, confused me and increasingly concerned me. They confused me because the president that I had had multiple conversations about my job, both before and after he took office, and he had repeatedly told me I was doing a great job and he hoped I would stay. And I had repeatedly assured him that I did intend to stay and serve out the remaining six years of my term. He told me repeatedly that he had talked to lots of people about me. Including our current attorney general. And had learned I was doing a great job. And that I was extremely well-liked by the FBI work force. So it confused me when I saw on television the president saying that he actually fired me because of the Russia investigation. And learned, again, from the media that he was telling privately other parties that my firing had relieved great pressure on the Russian investigation. I was also confused by the initial explanation that was offered publicly, that I was fired because of the decisions I had made during the election year. That didn’t make sense to me for a whole bunch of reasons, including the time and all the water that had gone under the bridge since those hard decisions had to be made. That didn’t make any sense to me. And although the law required no reason at all to fire an FBI director, the administration then chose to defame me and more importantly the FBI by saying that the organization was in disarray. That it was poorly led. That the workforce had lost confidence In its leader. Those were lies, plain and simple. And I am so sorry that the FBI workforce had to hear them and I’m so sorry the American people were told them. I worked every day at the FBI to help make that great organization better. As a help, because I did nothing alone at the FBI. There are no indispensable people at the FBI. The organization’s great strength is that its value and abilities run deep and wide. The FBI will be fine without me. The FBI’s mission will be relentlessly pursued by its people and that mission is to protect the American people and uphold the constitution of the United States. I will deeply miss being part of that mission, but this organization and its mission will go on long beyond me and long beyond any particular administration. I have a message before I close for the — for my former colleagues of the FBI. First I want the American people to know this truth. The FBI is honest. The FBI is strong. And the FBI is and always will be independent. And now to my former colleagues, If I may, I am so sorry I didn’t get the chance to say good bye to you properly. It was the honor of my life to serve beside you, to be part of the FBI family and I will miss it for the rest of my life. Thank you for standing watch, thank you for doing so much good for this country. Do that good as long as ever you can. And senators, I look forward to your questions.”
Observations: This entire statement is unworthy of the emphasis that has been placed on it by the wildly spinning news media, The key piece of information to frame the entire episode is “I understood that I could be fired by a president for any reason or for no reason at all.” Comey also presumably understood that a sub-fact within that understanding is that he could be told some of the reasons he was fired, no reasons, or the reasons the President felt like talking about. He was told he was doing a great job and then fired? Welcome to the work force. Telling an employee that he is doing a great job when he isn’t may be good management, usually isn’t, but is still well within the range of management discretion, and certainly not illegal.
Comey said that he also concerned that the President was saying that firing “had relieved great pressure on the Russian investigation.” As we learn later, the President was not being targeted in that investigation, and we know that he regards it as a politically motivated effort to distract and derail his administration and its agenda. There was nothing sinister about the President’s desire that the investigation go away as quickly as possible. I would argue that he has an obligation to do whatever he can to speed it along. If he didn’t trust Comey’s judgment—and who would?—seeing his exit as a plus is reasonable. Naturally, Comey wouldn’t see it that way.
It is amazing to me that a fired employee saying that his superior’s assessment that his organization was in disarray, that he was a poor leader and that his staff had “lost confidence In its leader” is given any weight at all. What fired employee doesn’t think his firing is unjust and the criticism of him is unfair? Comey calls it a lie: how does he know what Trump had been told or heard? How does Comey know what his agents say behind his back?
Your opinion that someone’s negative opinion about you is wrong and based on erroneous information does not make that opinion a lie. As a lawyer, Comey should know that, and should not have thrown the word “lie” around to be misunderstood by people who don’t know what a lie is—that is, most of the public.
2. Chairman Richard Burr: Do you have any doubt that Russia attempted to interfere In the 2016 election?
James Comey: None.
Chairman Richard Burr – North Carolina: Do you have any doubt that the Russian government was behind the intrusions in the DNC and DCCC systems and the subsequent leaks of that information?
James Comey: No, no doubt.
Chairman Richard Burr: Do you have any doubt that the Russian government was behind the cyber intrusion in the state voter files?
James Comey: No.
Chairman Richard Burr: Do you have any doubt that officials of the Russian government were fully aware of these activities?
James Comey: No doubt.
Chairman Richard Burr: Are you confident that no votes cast in the 2016 presidential election were altered?
James Comey: I’m confident. When I left as director I had seen no indication of that whatever.
Chairman Richard Burr: Director Comey, did the president at any time ask you to stop the FBI Investigation into Russian involvement in the 2016 U.S. elections?
James Comey: Not to my understanding, no.
Chairman Richard Burr: Did any individual working for this administration, including the Justice Department, ask you to stop the Russian investigation?
James Comey: No.
Comment: So the Russians didn’t “hack the election,” and neither the President nor anyone else attempted to interfere with the Russia investigation.
3. Chairman Richard Burr: Director, when the president requested that you — and I quote — let Flynn go, General Flynn had an unreported contact with the Russians. Which is an offense. And if press accounts are right, there might have been discrepancies between facts and his FBI testimony. In your estimation, was general Flynn at that time in serious legal jeopardy? In addition to that, do you sense that the President was trying to obstruct justice or just seek for a way for Mike Flynn to save face, given he had already been fired?
James Comey: General Flynn at that point in time was in legal jeopardy. There was an open FBI criminal investigation of his statements in connection with the Russian contacts. And the contacts themselves. And so that was my assessment at the time. I don’t think it’s for me to say whether the conversation I had with the president was an effort to obstruct. I took it as a very disturbing thing, very concerning. But that’s a conclusion I’m sure the special counsel will work towards to try and understand what the intention was there and whether that’s an offense.
James Risch: …I want to drill right down as my time is limited to the most recent dustup regarding allegations that the president of the United States obstructed justice. And you nailed this down on page five, paragraph three, you put this in quotes, words matter, you wrote down the words so we can have the words in front of us now. 28 words in quotes, It says, quote, I hope, this is the president speaking, I hope you can see your way clear to letting this go, to letting Flynn go. He’s a good guy. I hope you can let this go. Now, those are his exact words, is that correct?
James Comey: Correct.
James Risch: You wrote them here and put them in quotes.
James Comey: Correct.
James Risch: Thank you for that. He did not direct you to let it go.
James Comey: Not in his words, no.
James Risch: He did not order you to let it go.
James Comey: Again, those words are not an order.
James Risch: He said I hope. Now, like me you probably did hundreds of cases, maybe thousands of cases charging people with criminal offenses, and, of course, you have knowledge of the thousands of cases out there that — where people have been charged. Do you know of any case where a person has been charged for obstruction of justice or for that matter any other criminal offense where this — they said or thought they hoped for an outcome?
James Comey: I don’t know well enough to answer. And the reason I keep saying his words is I took it as a direction. It is the president of the United States, with me alone, saying I hope this, I took it as this is what he wants me to do. I didn’t obey that, but that’s the way I took it.
James Risch: You may have taken it as a direction, but that’s not what he said. He said — he said I hope.
James Comey: Those are the exact words, correct.
James Risch: You don’t know of anyone that has ever been charging for hoping something, is that a fair statement.
James Comey: I don’t as I sit here.
Comment: Lawyer and former Harvard Law Professor Alan Dershowitz, hardly a Trump supporter, has effectively debunked the unsustainable claim that the President’s conversation described here constituted “obstruction of justice.” Here is the relevant section of his excellent piece for the Washington Examiner, which also relieves me of the burden of picking through the whole transcript on this issue:
…Comey himself acknowledged that: “throughout history, some presidents have decided that because ‘problems’ come from Justice, they should try to hold the Department close. But blurring those boundaries ultimately makes the problems worse by undermining public trust in the institutions and their work.” Comey has also acknowledged that the president had the constitutional authority to fire him for any or no cause.
President Trump also had the constitutional authority to order Comey to end the investigation of former national security adviser Mike Flynn. He could have pardoned Flynn, as Bush pardoned Weinberger, thus ending the Flynn investigation, as Bush ended the Iran-Contra investigation. What Trump could not do is what Nixon did: direct his aides to lie to the FBI, or commit other independent crimes. There is no evidence that Trump did that.
With these factors in mind, let’s turn to the Comey statement.
Comey’s written statement, which was released in advance of his Thursday testimony before the Senate Intelligence Committee, does not provide evidence that Trump committed obstruction of justice or any other crime. Indeed it strongly suggests that even under the broadest reasonable definition of obstruction, no such crime was committed.
The crucial conversation occurred in the Oval Office on Feb. 14 between the president and then-Director Comey. According to Comey’s contemporaneous memo, the president expressed his opinion that retired Gen. Flynn “is a good guy.”
Comey replied, “He is a good guy.”
The president said, “I hope you can see your way clear to letting this thing go.”
Comey understood that to be a reference only to the Flynn investigation and not “the broader investigation into Russia or possible links to the campaign.” Comey had already told the president that “we were not investigating him personally.”
Comey 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.”
Comey did not say he would “let this go,” and indeed he did not grant the president’s request to do so. Nor did Comey report this conversation to the attorney general or any other prosecutor. He was troubled by what he regarded as a breach of recent traditions of FBI independence from the White House, though he recognized that “throughout history, some presidents have decided that because ‘problems’ come from the Department of Justice, they should try to hold the Department close.”
That is an understatement.
Throughout United States history — from Presidents Adams to Jefferson to Lincoln to Roosevelt to Kennedy to Obama — presidents have directed (not merely requested) the Justice Department to investigate, prosecute (or not prosecute) specific individuals or categories of individuals.
It is only recently that the tradition of an independent Justice Department and FBI has emerged. But traditions, even salutary ones, cannot form the basis of a criminal charge. It would be far better if our constitution provided for prosecutors who were not part of the executive branch, which is under the direction of the president.
In Great Britain, Israel and other democracies that respect the rule of law, the director of public prosecution or the attorney general are law enforcement officials who, by law, are independent of the prime minister.
But our constitution makes the attorney general both the chief prosecutor and the chief political adviser to the president on matters of justice and law enforcement.
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.
Assume, for argument’s sake, that Trump had said the following to Comey: “You are no longer authorized to investigate Flynn because I have decided to pardon him.” Would that exercise of the president’s constitutional power to pardon constitute a criminal obstruction of justice? Of course not. Presidents do that all the time.
Bush pardoned Caspar Weinberger, his secretary of defense, in the middle of an investigation that could have incriminated Bush. That was not an obstruction and neither would a pardon of Flynn have been a crime. A president cannot be charged with a crime for properly exercising his constitutional authority
For the same reason, Trump cannot be charged with obstruction for firing Comey, which he had the constitutional authority to do.
The Comey statement suggests that one reason Trump fired him was because of his refusal or failure to publicly announce that the FBI was not investigating Trump personally. Trump “repeatedly” told Comey to “get that fact out,” and he did not.
If that is true, it is certainly not an obstruction of justice.
Nor is it an obstruction of justice to ask for loyalty from the director of the FBI, who responded “you will get that [‘honest loyalty’] from me.”
Comey understood that he and Trump may have understood that vague phrase “honest loyalty” differently. But no reasonable interpretation of those ambiguous words would give rise to a crime. Many Trump opponents were hoping that the Comey statement would provide smoking guns.
It has not.
Instead it has weakened an already weak case for obstruction of justice.
The statement may provide political ammunition to Trump opponents, but unless they are willing to stretch Comey’s words and take Trump’s out of context, and unless they are prepared to abandon important constitutional principles and civil liberties that protect us all, they should not be searching for ways to expand already elastic criminal statutes and shrink enduring constitutional safeguard in a dangerous and futile effort to criminalize political disagreements.
The first casualty of partisan efforts to “get” a political opponent — whether Republicans going after Clinton or Democrats going after Trump — is often civil liberties. Everyone who cares about the Constitution and civil liberties must join together to protest efforts to expand existing criminal law to get political opponents….ause this is about America, not about any particular party.
I also should cite Prof. Jonathan Turley’s conclusion to his analysis:
The crime of obstruction of justice has not been defined as broadly as suggested by commentators. While there are a couple of courts with more expansive interpretations, the crime is generally linked to obstructing a pending proceeding as opposed to an investigation. Most courts have rejected the application of obstruction provisions to mere investigations. The manual used by federal prosecutors makes that same distinction. Even if a prosecutor was able to extend the definition of obstruction, there would remain the need to show that Trump sought to “corruptly” influence the investigation. Trump telling Comey that Michael Flynn is “a good guy,” and that he hoped Comey would let the matter drop is hardly a “cancer,” let alone a crime, growing on the presidency….
Ironically, those who want a criminal charge on this record are committing the very offense that they accuse Trump of committing: disregarding the law to achieve their desired goal. It would be a highly dangerous interpretation to allow obstruction charges at this stage. If prosecutors can charge people at the investigation stage of cases, a wide array of comments or conduct could be criminalized. It is quite common to have such issues arise early in criminal cases. Courts have limited the crime precisely to avoid this type of open-ended crime where prosecutors could threaten potential witnesses with charges unless they cooperated.
We do not indict or impeach people for being boorish or clueless … or simply being Donald Trump.
Turley’s last line is especially descriptive of the entire, dangerous, undemocratic effort to unseat Trump from his elected office. It has never been based on anything put personal and political animus, fanned into fear and hate, weakening our society and the bonds that hold us together by the day.