Analysis: Video of Recent Comey Testimony on Political Pressure is Important, But Not Dispositive

Posted: May 19, 2017 10:45 AM

Like clockwork, partisans on both sides are drawing immediate and predictable conclusions about the clip below, which comes from a Senate hearing in early May. Some Trump backers contend that it "proves" that Trump didn't attempt to obstruct justice when he allegedly lobbied former FBI Director James Comey to 'let go' of the criminal case against fired National Security Adviser Michael Flynn -- whom Trump is reportedly considering rehiring into the administration, astoundingly.  Much of the Trump resistance says that the video shows nothing of the sort, and that it doesn't change their framing of the situation one bit. I'd argue that neither view gets it right. Katie wrote about the newly-relevant testimony yesterday, correctly noting the scope of the question to which Comey was responding, as constructed by Hawaii Democrat Mazie Hirono. Here's the exchange:

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 without appropriate purpose. Often times 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.

Some say that the re-emergence of this back-and-forth -- coupled with Comey's successor asserting under oath that no political pressure has been brought to bear on the Russia probe (which was moving forward with ample resources prior to a Special Counsel taking the reins) -- vindicates President Trump. Not quite. Sen. Hirono asks specifically about interference from the Attorney General or high-level DOJ officials, prompting Comey's denial that any such thing had occurred "in his experience." His answer, therefore, does not necessarily cover pressure from anyone higher up the food chain within the administration. So, as asked and answered, the question does not preclude the possibility that Comey did experience what he believed to be an obstruction push from the president.  Comey is a sharp and cautious lawyer, after all, who understands the wisdom in only answering the question with which he's confronted; no more, no less.  (The claim by some that the video above points to perjury by Comey is unsupportable). Other Trump critics have also said that his "for a political reason" clause may give Comey addition; wiggle room here.  Perhaps, they argue, the former FBI chief perceived Trump's motives to be more personal in nature -- i.e., wanting to spare his friend additional pain -- which could be different from a purely politically-motivated attempt to derail an investigation. I don't buy that distinction. A President of the United States trying to get a former top adviser off the hook in a private conversation with the federal government's top investigator would inherently be political.

Case closed? Maybe. But I'm inclined to believe that this clip helps bolster Trump supporters' case that the president's alleged words (we still haven't seen the memo, or heard from Comey) did not amount to obstruction. Recall that acting FBI director Andrew McCabe, when asked about White House pressure on May 11, told Congress that "there has been no effort to impede our investigation to date." The New York Times story about the now-infamous memo reported that Comey shared that document with a small handful of high-ranking colleagues, one of whom would likely have been his top deputy, McCabe.  Surely if Comey had told his inner circle that Trump had made a serious effort to influence the Bureau's probe of the Russia matter, McCabe would have remembered that significant event two months later.  Now, it does appear that Trump's supposed cajoling of Comey pertained to the criminal case against Flynn, which is adjacent to but separate from the wider Russia inquiry, so maybe McCabe was splitting those hairs in his answer to Sen. Rubio.  Just as it's possible that Comey was splitting hairs in response to Sen. Hirono, too.  But it would strike me as rather misleading for both men to have left the impression that no political interference had occurred in these narrower contexts, even if they secretly knew that the president himself had engaged in obstruction-of-justice-level conduct on extremely closely-related matters.

It's conceivable that Comey was holding out to reveal that explosive detail at a later date.  He has exhibited a flair for the dramatic in the past, including in a high-octane political case.  But in light of the Democrats' anger at him for not revealing the Russia probe sooner (while commenting publicly about the Clinton email investigation), it would seem very risky for Mr. Cautious to have sat on strong evidence of Trump's criminality, especially when he was being asked directly about the subject of political pressure.  "That would be a very big deal," he said of hypothetical political interference.  Would he have continued in his mind, "but I'm not going to tell you about the time the president did just that a few weeks ago"?  That's a tough sell for me.  My hunch is that one of two things happened, assuming The Memo exists and is authentic: (1) Comey did not believe Trump's overtures on behalf of Flynn rose to the level of criminally inappropriate influence, but rather fell more into the category of "giv[ing] us opinions," which Comey indicated to Hirono was fairly commonplace.  If he believed that it had, by his own standard, it would have been quite a serious matter, and he'd be compelled to blow the whistle -- particularly while under questioning on the subject.  (2) Comey saw Trump's alleged pressure as inappropriate and potentially problematic, but not necessarily illegal on its face.  He may have marked it down in his memo for posterity, just in case subsequent events would one day cast that conversation in a different light.  His firing could be that different light; even more so if he believes its root cause was his refusal to comply with Trump's entreaties.

In sum, my view is that Comey's May 3rd testimony buttresses the case -- approached from another angle here by a law professor in a New York Times Op/Ed -- that confident declarations of Trump's obstruction-related guilt are premature and exaggerated.  It's not an ah-ha! silver bullet that clears Trump, but on balance, it's helpful to his defenders. Until we actually see the text of Comey's memos detailing his interactions with Trump (contemporary diary entries from credible sources can be compelling evidence), and until we hear Comey describe his real-time interpretations of those interactions while under oath, we're stuck in a guessing game.  The memos and the witness should be produced as soon as possible.  Parting Question: On that note, now that Democrats have gotten their wish for a Special Counsel, does that investigation supersede Congress' work?