A funny thing happened on the way to President Trump's impeachment Thursday. Former FBI Director James Comey, whose testimony was hyped for weeks as the moment that the Trump Administration began to crumble, instead quite inadvertently cleared Trump of the obstruction of justice charge that Democrats were so desperate to pin on him.
So full of contradictions and, quite frankly, outright dishonesty was Comey's testimony that even his most direct accusation--that the Trump Administration lied about the FBI being in disarray--rings hollow.
"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," Comey said. "Those were lies, plain and simple. And I am so sorry that the FBI workforce had to hear them, and I'm so sorry that the American people were told them."
It was a powerful moment in Comey's opening statement; an honest career law enforcement official accusing the White House of lying about him and, more importantly, his Bureau. But as Comey's testimony wore on, it became clear that he is not an entirely honest man himself.
And not a particularly savvy one, either, because the inconsistencies in his testimony tend to demonstrate beyond any reasonable doubt that in telling Comey "I hope you can let [the investigation into former National Security Adviser Michael Flynn] go," Trump did not obstruct or attempt to obstruct the investigation, despite Comey's rather unbelievable insistence that it made him feel uncomfortable.
However it may have made him feel, Comey flatly asserted early in questioning that neither the President nor anyone in his administration ever attempted to get him to stop the FBI's investigation into Russia's involvement in the presidential election:
SEN. RICHARD BURR (R-NC): Director Comey, did the president at any time ask you to stop the FBI investigation into Russian involvement in the 2016 U.S. Elections?
COMEY: Not to my understanding, no.
BURR: Did any individual working for this administration, including the justice department, ask you to stop the Russian investigation?
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, and 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 that he had already been fired?
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.
It is interesting that in the same breath that Comey denied there were any efforts to stop the Russia investigation he refused to say whether Trump made an effort to stop a portion of the Russia investigation because when he testified before the Senate Judiciary Committee on May 3rd (before he was fired later that month), he said definitively that he was never pressured--by anyone--to stop any investigation for political purposes.
SEN. MAZIE HIRONO (D-HI): 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 that -- without an appropriate purpose. I mean where oftentimes 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.
That would indeed be a very big deal, especially if it was the President of the United States who was telling Comey to stop something for a political reason. But "it's not happened" in Comey's experience. Not once.
Yet that's not what Comey testified on Thursday. He repeatedly claimed that President Trump telling him, alone in a meeting, that he "hoped" Comey could "let this Flynn thing go" amounted to undue pressure on him to end the investigation into Flynn.
How could this possibly be squared with Comey's testimony on May 3rd, when he plainly and directly denied that he was ever "told to stop something for a political reason." If he was really so concerned about this attempted obstruction of his investigation into Michael Flynn, why didn't he tell the truth about his feelings when he was under oath on May 3rd (and, you know, required by law to tell the truth).
And why, for that matter, if he was so concerned about what he now believes was a direct order to end an investigation, did he tell no one except his close confidantes about this until after he was fired, when he leaked a memo he wrote to himself about how uncomfortable Trump's conduct made him.
It strains credulity to believe that a man who was so concerned with the Bush Administration's warrantless wiretapping a decade ago that he threatened to resign in protest would do or say nothing about a President attempting to pressure him into shutting down an ongoing investigation.
Yet that's what Comey expects the world to believe. And he also expects it to believe that even though he believed that President Trump's conduct was so inappropriate that it might rise to the level of criminal obstruction of justice...but he refused to initiate any sort of investigation into it or even tell anyone outside of his inner circle about it until after Trump fired him.
In his written testimony, Comey noted:
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.
This was on January 6th (before the meetings in question), but Comey testified that he twice more assured Trump that he was not under investigation, including in a phone call on March 30th--a month and a half after the meeting in which Comey supposedly felt that Trump might have been trying to obstruct the investigation into Flynn:
I explained that we had briefed the leadership of Congress on exactly which individuals we were investigating and that we had told those Congressional leaders that we were not personally investigating President Trump. I reminded him I had previously told him that.
So Comey never initiated an obstruction investigation (or any sort of investigation) against Trump or told anyone about it. This might be able to be excused if not for a federal statute that would have required Comey to do just that if he really believed obstruction of justice may have occurred.
18 U.S. Code 4 is quite clear about this:
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
While it's fairly obvious that Comey would likely not be prosecuted under this statute, he certainly could have been. Had he truly believed that Trump had obstructed justice in pressuring him to drop the Flynn investigation, he had an affirmative duty to make that belief known. But he didn't. He instead concealed his memos of the conversation and said nothing, continuing to work for a man he secretly believed committed a very serious crime.
A very serious crime that Comey later testified "didn't happen" in his experience. Only after he was fired did Comey tell anyone that it might have. And, crucially, he didn't tell anyone at the Justice Department or in Congress (as he was legally required to), but he instead had a friend leak his memo to The New York Times.
This is not only grossly unethical (and possibly illegal if the material Comey leaked could be classified as a government document, which is very likely), it stands in contrast with Comey's testimony from the Senate Judiciary Committee on May 3rd:
SEN. CHUCK GRASSLEY (R-IA): And thank you for your opening statement. I'm going to start out probably with a couple subjects you wish I didn't bring up, and then a third one that I think everybody needs to hear your opinion on on a policy issue. It is frustrating when the FBI refuses to answer this committee's questions, but leaks relevant information to the media. In other words, they don't talk to us, but somebody talks to the media.
Director Comey, have you ever been an anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation?
GRASSLEY: Question two, relatively related, have you ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation?
GRASSLEY: Has any classified information relating to President Trump or his association — associates been declassified and shared with the media?
COMEY: Not to my knowledge.
Just a week later, though, Comey would be leaking to the New York Times. This behavior raises the very serious question about whether any of the multitude of leaks from the Russia investigation that found their way to the Times and the Washington Post were in fact directed by Comey as a means of keeping a cloud of suspicion on Trump.
This in turn would likely have meant job security for Comey: Trump couldn't possibly be stupid enough to fire the man who was investigating his ties to Russia, could he? It would (and did) make him look guilty even though Comey knew--but, remember, refused to publicly say--Trump was not under any investigation at the time he actually did fire Comey.
That firing, of course, was seen as definitive evidence of obstruction, but Comey himself had to admit that his firing did not in any way stop or even affect the ongoing Russia investigation:
SEN. JOHN CORNYN (R-TX): Thank you, Mr. Chairman.Mr. Comey, I’ll repeat what I’ve said at previous hearings, that I believe you’re a good and decent man who’s been dealt a very difficult hand, starting back with the Clinton e-mail investigation. And I appreciate your willingness to appear here today voluntarily and answer our questions and cooperate with our investigation.As a general matter, if an FBI agent has reason to believe that a crime has been committed, do they have a duty to report it?
COMEY: That’s a good question. I don’t know that there’s a legal duty to report it. They certainly have a cultural, ethical duty to report it.
CORNYN: You’re unsure whether they would have a legal duty?
COMEY: It’s a good question. I’ve not thought about it (ph) before. I don’t know where the legal — there’s a statute that prohibits misprision of a felony — knowing of a felony and taking steps to conceal it — but this is a different question.And so, look, let me be clear, I would expect any FBI agent who has reason — information about a crime being committed to report it.
CORNYN: Me, too.
COMEY: But where you rest that obligation, I don’t know. It exists.
CORNYN: And let me ask you as a general proposition, if you’re trying to make an investigation go away, is firing an FBI director a good way to make that happen? By that, I mean...
CORNYN: ... doesn’t...
COMEY: It doesn’t make a lot of sense to me, but I’m — I’m obviously hopelessly biased, given that I was the one fired.(LAUGHTER)
CORNYN: I understand it’s personal.
COMEY: No (ph), given the nature of the FBI, I meant what I said. There’s no indispensable people in the world, including at the FBI. That — there’s lots of bad things about me not being at the FBI. Most of them are for me. But the work’s going to go on as before.
CORNYN: So nothing that’s happened that you’ve testified to here today has impeded the investigation of the FBI or Director Mueller’s commitment to get to the bottom of this, from the standpoint of the FBI and the Department of Justice. Would you agree with that?
COMEY: Correct, especially — the appointment of Director — Former Director Mueller is a critical part of that equation.
In other words, Comey admitted that Trump firing him would not do anything to alter the investigation, which, remember, did not include Trump personally.
So how does that square with Comey's testimony that, because of media accounts he had read, he came to believe that Trump fired him to end the Russia investigation. Both Trump and Comey knew that that investigation was not into Trump personally and additionally, Comey knew that his firing would do nothing to stop or impede that investigation in any way.
And Acting FBI Director Andrew McCabe testified before the Senate Judiciary Committee on May 11th that it didn't:
SEN. MARCO RUBIO (R-FL): Thank you, Mr. Chairman. Mr. McCabe, can you without going into the specific of any individual investigation, I think the American people want to know, has the dismissal of Mr. Comey in any way impeded, interrupted, stopped or negatively impacted any of the work, any investigation, or any ongoing projects at the Federal Bureau of Investigations?
MCCABE: As you know, Senator, the work of the men and women of the FBI continues despite any changes in circumstance, any decisions. So there has been no effort to impede our investigation today. Quite simply put sir, you cannot stop the men and women of the FBI from doing the right thing, protecting the American people, and upholding the Constitution.
So President Trump, who was not under investigation, could not stop or alter that investigation by firing Comey, Comey knew this, yet Comey believed that Trump fired him to stop the investigation?
That doesn't make logical sense, and neither does much of Comey's testimony Thursday when it is viewed in the context of all of his past conduct and testimony under oath.
What is clear is that Comey did not actually believe that Trump's statement that he hoped Comey could "let this Flynn thing go" amounted to obstruction. If he had, he would have said so, he would have quit, he would have launched an investigation, he would have done just about anything instead of quietly go back to work for a man he actually believed to be a criminal.
But he did, and this action coupled with his inconsistent and fundamentally dishonest testimony serve to inadvertently clear Trump of the obstruction that Comey never really believed he committed.