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Opinion What Comey would not say is critical

Key moments from the former FBI director's testimony on his interactions with President Trump. (Video: Sarah Parnass/The Washington Post, Photo: Matt McClain/The Washington Post)

This post has been updated, 6:19 p.m.

Former FBI director James B. Comey did not disappoint with his spellbinding testimony about a series of creepy interchanges with the president. He answered most but not all questions. Those he chose not to answer and oblique references he did not expand upon suggest some alarming ways the investigation could proceed.

First, the investigation into the British dossier is still alive and well:

SEN. RICHARD  BURR (R-N.C.): In the public domain is this question of the “Steele dossier,” a document that has been around out in for over a year. I’m not sure when the FBI first took possession of it, but the media had it before you had it and we had it. At the time of your departure from the FBI, was the FBI able to confirm any criminal allegations contained in the Steele document?
COMEY: Mr. Chairman, I don’t think that’s a question I can answer in an open setting because it goes into the details of the investigation.

From news reports we know that the intelligence community continues to pursue the facts. What precisely it has confirmed remains a matter of speculation. However, it appears that Comey is willing to talk about it in a closed hearing.

Then there was a hint of more troubles for Attorney General Jeff Sessions.  Comey revealed that at one point he had reported the inappropriate contacts to Sessions and to the then-deputy attorney general. However, what he wouldn’t talk about was more intriguing:

SEN. RON WYDEN (D-Ore.): Let me turn to the attorney general. In your statement, you said that you and the FBI leadership team decided not to discuss the president’s actions with Attorney General Sessions, even though he had not recused himself. What was it about the attorney general’s interactions with the Russians or his behavior with regard to the investigation that would have led the entire leadership of the FBI to make this decision?
COMEY: Our judgment, as I recall, is that he was very close to and inevitably going to recuse himself for a variety of reasons. We also were aware of facts that I can’t discuss in an opening setting that would make his continued engagement in a Russia-related investigation problematic. So we were convinced — in fact, I think we’d already heard the career people were recommending that he recuse himself, that he was not going to be in contact with Russia-related matters much longer. That turned out to be the case. (Emphasis added.)

Is there some other contact between Sessions and the Russians we are not aware of? What are these other facts? In the mound of bad facts for Sessions (misleading the Judicial Committee, reversing his recusal, assisting in the termination of the FBI director, coming up with a phony rationale), we can add some unknown tidbit. What that is and whether it becomes decisive in either the counterintelligence investigation or an obstruction investigation remains to be seen.

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The secret back-channel involving Jared Kushner also made an appearance:

SEN. MARTIN HEINRICH (D-N.M.): So there are reports that the incoming Trump administration, either during the transition and/or after the inauguration, attempted to set up a sort of backdoor communication channel with the Russian government using their infrastructure, their devices, their facilities. What would be the risks, particularly for a transition, someone not actually in the office of the president yet, to setting up unauthorized channels with a hostile foreign government, especially if they were to evade our own American intelligence services?
COMEY: I’m not going to comment on whether that happened in an open setting, but the risk is — primary risk is obvious. You spare the Russians the cost and effort to break into our communications channels by using theirs. You make it a whole lot easier for them to capture all of your conversations. Then to use those to the benefit of Russia against the United States.

That’s the best explanation, albeit limited, for why a potential back channel using Russian facilities would be a national security threat. Reports that Kushner is a subject of a counterintelligence investigation suggest the spin from White House national security adviser H.R. McMaster — that this was effectively no big deal — is flat-out false.

Asked why he didn’t tell his superiors about the contacts, Comey said, “I did on the April 11th call. I reported the calls — the March 30th call and the April 11th call — to my superior, who was the acting deputy attorney general.” Given that, how could the DAG not have raised a red flag on Comey’s termination? 

Maybe the most intriguing was this exchange:

SEN. TOM COTTON (R-Ark.): Let’s turn our attention to the underlying activity at issue here. Russia’s hacking of those e-mails and the allegation of collusion. Do you think Donald Trump colluded with Russia?
COMEY: That’s a question I don’t think I should answer in an opening setting. As I said, when I left, we did not have an investigation focused on President Trump. But that’s a question that will be answered by the investigation, I think.

Does he have reason to believe that Trump now is under investigation or should be under investigation for colluding? It is a peculiar answer given that while he was FBI director, he told the president three times that he was not under investigation.

Cotton later waded into the multiple contacts between Trump officials and the Russians:

COTTON: On February 14th the New York Times published the story, the headline of which was “Trump campaign aides had repeated contacts with Russian intelligence.” You were asked if that was an inaccurate story. Would it be fair to characterize that story as almost entirely wrong?
COTTON: Do you have — at the time the story was published, any indication of any contact between Trump people and Russians, intelligence officers, other government officials or close associates of the Russian government?
COMEY: That’s one I can’t answer sitting here.

Again, this is yet another indication that, contrary to the president’s representations, there were in fact such communications.

Sen. Kamala D. Harris (D-Calif.) asked Comey a series of questions about possible document destruction and other efforts to conceal the contacts with Russians. This goes to the heart of an obstruction claim. Comey repeatedly refused to answer.

Declining to answer in public does not necessarily mean there is illegal or improper behavior to be found, only that this would be an inappropriate question to be asking. Either in closed session or through the special prosecutor they surely will be asked, perhaps providing even more damning evidence against this administration.

CORRECTION: A prior version stated that Rod J. Rosenstein was told about improper contacts between Comey and Trump. Rosenstein had not yet been confirmed as of that date. The acting deputy attorney general was Dana Boente.