In advance of his highly anticipated hearing Thursday, the testimony of former FBI director James B. Comey has been released by the Senate Intelligence Committee. (That, in and of itself, is a favor to the White House, allowing it to prepare.) The testimony is not the same as the individual memos Comey wrote, but presumably those support the narrative he tells in a gripping account of five of his nine interactions with the president.
In a nutshell: On Jan. 6, Comey was sent to brief Trump on the contents of the Russia dossier. “In that context, prior to the January 6 meeting, I discussed with the FBI’s leadership team whether I should be prepared to assure President-Elect Trump that we were not investigating him personally. That was true; we did not have an open counter-intelligence case on him. We agreed I should do so if circumstances warranted. During our one-on-one meeting at Trump Tower, based on President-Elect Trump’s reaction to the briefing and without him directly asking the question, I offered that assurance.” Note what is NOT said when Comey writes, “We did not have.” That does not mean a case was not opened subsequently. The written testimony confirms Trump’s claim Comey told him three times he was not being investigated. Did Comey subsequently open a file?
Comey notes that he began documenting his meetings with the president, something he never did with President Barack Obama. Why? What behavior or information compelled him to document these encounters in such detail?
Next came the private dinner on Jan. 27, to which Comey says the president invited him. I quote it at length to convey the drama:
The President began by asking me whether I wanted to stay on as FBI Director, which I found strange because he had already told me twice in earlier conversations that he hoped I would stay, and I had assured him that I intended to. He said that lots of people wanted my job and, given the abuse I had taken during the previous year, he would understand if I wanted to walk away.
My instincts told me that the one-on-one setting, and the pretense that this was our first discussion about my position, meant the dinner was, at least in part, an effort to have me ask for my job and create some sort of patronage relationship.
This is weird, but not illegal. However, we’ll come back to this later, when it becomes an implied threat not to keep Comey on.
That concerned me greatly, given the FBI’s traditionally independent status in the executive branch.
I replied that I loved my work and intended to stay and serve out my ten-year term as Director. And then, because the set-up made me uneasy, I added that I was not “reliable” in the way politicians use that word, but he could always count on me to tell him the truth. I added that I was not on anybody’s side politically and could not be counted on in the traditional political sense, a stance I said was in his best interest as the President.
A few moments later, the President said, “I need loyalty, I expect loyalty.” I didn’t move, speak, or change my facial expression in any way during the awkward silence that followed. We simply looked at each other in silence. The conversation then moved on, but he returned to the subject near the end of our dinner.
Once again, Trump is not asking for anything specific, but he is conditioning Comey, softening him up so Trump can make demands later. The day before, then-Acting Attorney General Sally Yates met with the White House counsel to tell him Michael T. Flynn had lied about his contacts with the Russian ambassador. Trump, in the dinner with Comey on Jan. 27, came back to “loyalty.” (“He then said, ‘I need loyalty.’ I replied, ‘You will always get honesty from me.’ He paused and then said, ‘That’s what I want, honest loyalty.’ I paused, and then said, ‘You will get that from me.'”)
The day after Flynn resigned, Trump shooed everyone else out of the Oval Office to meet one-on-one with Comey. Here was the “ask”: “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.” Given the previous questions about staying on and “loyalty,” did Comey think he needed to drop the Flynn investigation, or was he being asked to drop the Flynn investigation to remain in his post?
Regarding a March 30 phone call with the president, Comey says:
He described the Russia investigation as “a cloud” that was impairing his ability to act on behalf of the country. He said he had nothing to do with Russia, had not been involved with hookers in Russia, and had always assumed he was being recorded when in Russia. He asked what we could do to “lift the cloud.” I responded that we were investigating the matter as quickly as we could, and that there would be great benefit, if we didn’t find anything, to our having done the work well. He agreed, but then re-emphasized the problems this was causing him.
At the end of the call Trump, brought it up yet again: “He finished by stressing ‘the cloud’ that was interfering with his ability to make deals for the country and said he hoped I could find a way to get out that he wasn’t being investigated.” Here Trump is asking about letting it be known he was not under investigation, not about simply cutting Flynn loose. There is no ask to end the investigation in its entirety.
Was this an attempt to interfere improperly with the investigation? The reason seems to be his concern about his political standing (a cloud). Again, in light of the loyalty question and previous request about Flynn, did Comey understand he was being asked to dump the investigation for political reasons? Or simply to accurately report Trump was in the clear (which he may or may not have been at that point)?
Ironically, he then, in essence, asked Comey for a job reference on Andrew McCabe, whom Comey did not know was to replace him as FBI director in the interim. On April 11, in a phone call, Trump asked Comey about getting the word out that Trump was not personally under investigation. Comey told him he had asked then-Deputy Attorney General Rod J. Rosenstein but didn’t have a response.
The critical question for Comey on Thursday will be: Given the tone, conversations, frequency of contacts and every other signal, did he feel that Trump was pushing him to dismiss the Flynn case for improper reasons (he’s a good guy, not necessarily that he was innocent) and/or to drop the Russia investigation, or clear him, since it was a political problem?
Constitutional lawyer and Harvard law professor Laurence H. Tribe observes, “Comey’s recollections strongly suggest that the President deliberately sought to create the impression with Comey that the best way to get his wish of retaining his position as Director was to back off in his investigation of Flynn and to assure Trump that he would not later become a target of the Russia investigation.”
We will need to see the totality of evidence to decide how much trouble Trump is in. As Tribe puts it, the written testimony “casts a dark cloud over this president that, in combination with other evidence that seems to be emerging, threatens to break open a gusher of incriminating information that could engulf him beyond redemption.” For starters, the Senate needs to re-call the witnesses from Wednesday, under oath if need be, and compel their testimony.