Former FBI director James B. Comey’s arrival on Capitol Hill on Thursday was remarkable in many senses. Among the more remarkable developments, though, was one explicit defense of President Trump’s interactions with Comey before his being fired.
Sen. James E. Risch (R-Idaho) was the second Republican to ask Comey questions during his testimony before the Senate Intelligence Committee. His questions focused on a very particular private interaction between the president and his then-FBI director on Feb. 14.
Comey’s prepared testimony described what happened.
The President then returned to the topic of Mike Flynn, saying, “He is a good guy and has been through a lot.” He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, “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.” I replied only that “he is a good guy.” (In fact, I had a positive experience dealing with Mike Flynn when he was a colleague as Director of the Defense Intelligence Agency at the beginning of my term at FBI.) I did not say I would “let this go.”
Risch first pressed on the difference between the president’s wish and a direct command.
RISCH: He did not direct you to let it go.
COMEY: Not in his words, no.
RISCH: He did not order you to let it go.
COMEY: Again, those words are not an order.
Risch then noted his background as an attorney as he pressed on the point.
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 … they said or thought they “hoped” for an outcome?
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.
RISCH: You may have taken it as a direction, but that’s not what he said. He said — he said “I hope.”
COMEY: Those are the exact words, correct.
RISCH: You don’t know of anyone that has ever been charged for hoping something, is that a fair statement?
COMEY: I don’t, as I sit here.
(The transcript above comes from Slate.)
This is a very important point to consider if you are a prosecutor considering whether to press charges against an individual. That’s Risch’s background, serving two terms as prosecuting attorney in Ada County years ago. Prosecutors are loathe to bring charges that he or she doesn’t feel confident would result in a conviction, and Risch’s point is that Trump’s declaration of “hoping” the investigation would go away wouldn’t pass muster in a court of law.
It’s worth pointing out how remarkable that is as a standard for the president of the United States.
Beyond being voted out of office, the sole punishment that a president faces is impeachment by the House. For that to happen, the standard is that the president may be impeached and removed for “treason, bribery, and other high crimes and misdemeanors.” Those “high crimes and misdemeanors” are not defined, offering a lot of wiggle room for those looking to impeach a president (or other official) — and for those looking to avoid such a process.
While Risch’s question wasn’t specifically about impeachment, it’s correlated. He’s arguing, in essence, that Trump’s behavior was not necessarily inappropriate because he used the word “hope,” instead of making an explicit demand. He’s saying implicitly that no line was crossed, because Trump’s comments existed in a prosecutorial gray area.
Donald Trump’s son apparently viewed the situation the same way.
Other senators pointed out the subtle distinction between a boss telling his employee he hoped that something would be done and telling him specifically to do it. Sen. Kamala D. Harris (D-Calif.) compared it to a stickup man with a gun saying that he hoped a victim would turn over his wallet. Sen. Angus King asked Comey if the former director “[took] that as a directive.” Comey said he did, using the literary analogy of King Henry II, who apocryphally asked about Archbishop Thomas Becket, “Will no one rid me of this troublesome priest?” Becket was dispatched to his Creator within short order.
But let’s again go back to Risch’s question: Did Trump say something that would get him convicted in a court of law?
Clearly, Risch doesn’t think that’s actually imminent for Trump. He was making a point similar to Donald Jr., albeit in legal terms. The conversation, though, comes hours after an relevant incident in our current political moment.
On Wednesday, Greg Gianforte, the Republican recently elected as Montana’s representative in the House, apologized for assaulting a reporter on the eve of his election. His campaign’s first comments about the incident denied the assault, tacitly blaming the reporter. There was almost no significant criticism of Gianforte from his own party before polls closed. His campaign doesn’t seem to have paid any political price for his behavior, perhaps because there was still a cloud of doubt hanging over what had actually happened through the election.
Would it have mattered if he had admitted it, though? Would it have mattered if Gianforte had been arrested and imprisoned? Certainly somewhat — but many Americans might approve of his actions in the moment. A poll released on Wednesday from Quinnipiac University found that 7 percent of Americans though violence against the media by a politician might sometimes be warranted, including 1-in-7 Republicans.
Gianforte had enough of an out to allow people to stand at his side as voting occurred. Similarly, Risch is creating as much space as possible for people to stand next to President Trump in his conflict with Comey. Well, he argues, no prosecutor would convict Trump of obstruction on the basis of that comment alone — with the implied continuation that, therefore, Trump didn’t obstruct. And, therefore, that Trump is off the hook politically.
It’s hard to imagine past presidents being absolved under that standard.
It’s also worth remembering that in any prosecution, there are multiple pieces of evidence that are combined to determine if a crime was committed. There exists an investigation led by a special counsel, himself a former FBI director, which may once and for all determine whether evidence exists to that effect with the president’s treatment of the FBI investigation.
Update: Sen. John Cornyn (R-Texas) spoke with the press after leaving the hearing. From our Karoun Demirjian:
“I do not believe there is” any evidence that that president obstructed justice, Cornyn told reporters, referring to the questions Sen. Jim Risch (R-Idaho) asked Comey.
“You heard senator Risch ask about the expression of hope,” Cornyn said. “That’s not an order.”