RUTHFULLY YOURS

James Comey’s much-anticipated testimony before the Senate Intelligence Committee largely confirmed what we knew already.

The former FBI director painted a deeply unflattering portrait of the president, as self-serving and dishonest. Comey said that he felt compelled to carefully document his interactions with President Trump because he did not believe that Trump would portray those interactions truthfully, if the need ever arose. Comey also had harsh words about the White House’s misleading explanation for his firing, initially portrayed as a reaction to his handling of the Hillary Clinton e-mail investigation. This character indictment cannot come as a surprise to anyone who has observed Donald Trump over the past two years.

Nonetheless, the legal case that Democrats are trying to mount against the president remains far-fetched. According to Comey, earlier this year President Trump asked Attorney General Jeff Sessions and adviser Jared Kushner to leave the room so he could talk privately with Comey. During the one-on-one, says Comey, the president said that he “hoped” the bureau could “let go” of its investigation into former NSA director Michael Flynn, the subject of an ongoing criminal inquiry. Democrats have suggested that this statement, taken in concert with Comey’s precipitous firing, constitutes an obstruction of justice. The former FBI director said that he understood the comment about the Flynn investigation as a “directive.”

There are gaping holes in this legal case. The president never followed up on his comment about the Flynn affair, and Comey continued the Flynn investigation (meaning he didn’t really consider it a directive); Trump did not object to investigations into other members of his team, even going so far as to say it would be “good to know” if his subordinates were engaged in wrongdoing; and the only explicit request Trump made of Comey regarding the Russia probe was to state publicly that Trump himself was not under investigation. In this connection, Comey affirmed that he did, in fact, tell the president that he was not personally under investigation — and on three occasions, as President Trump had previously claimed. (As we have noted, and as Comey reiterated in his testimony, the FBI’s inquiry pertaining to the Trump campaign was a counterintelligence, not a criminal, probe.

In other words, Comey’s testimony largely backed up what has seemed to be the case for a while: The president, hypersensitive to unfriendly press coverage, behaved irresponsibly by badgering his FBI director about an ongoing investigation and creating yet another situation in which James Comey would have to choose one side of a partisan divide — not unlike the situation into which he was put by Loretta Lynch during the Clinton e-mail investigation. Given his legal power over the FBI director — he has the authority to end any investigation, provided the motivation for doing so is not corrupt, and he has the authority to fire the FBI director at will — it is incumbent upon the president to avoid creating any impression of a conflict of interest. Donald Trump did not do that. However, this is still a far cry from obstruction of justice, as defined by law.

What was almost entirely missing from the hearing was the ostensible center of the Russia investigation — which is Russia itself. Indeed, the last several weeks have signaled a shift in focus of the Democrats and the media from alleged Russia collusion to alleged obstruction. In other words, it’s the supposed cover-up rather than the (so far as we can tell) non-crime.

Although Comey is getting hailed by all the great and good, his own behavior is hardly blameless. One interpretation of his extensive note-taking, coupled with his reluctance to tell his superiors of his concerns about Trump in real time, is that he was saving up ammunition for when it would serve his own purposes. His decision to leak his memos (written to contain no classified information, so they could be spread around as necessary) to the press, instead of taking them to Congress, in order to prompt the Justice Department to appoint a special counsel is a reminder that Comey is a practiced manipulator of the media and the Washington bureaucracy.

What if all the painful drama over Donald Trump and Mike Flynn and Hillary Clinton and Russians wasn’t really due to Donald Trump or Mike Flynn or Hillary Clinton or Russians? What if the national spectacle the country has endured comes down to one man, James Comey ?

It was certainly all about the former FBI director on Thursday, as he testified to the nation via the Senate Intelligence Committee. Mr. Comey didn’t disappoint. He already had submitted pages of testimony detailing his every second with President Trump, complete with recollections of moments he felt “strange” or “uneasy” or “awkward.” But on Thursday he went further, wowing the media with bold pronouncements: President Trump was a liar; the president fired him to undermine the Russia investigation; the president had directed him to back off Mr. Flynn.

Mostly he pronounced on what is—and is not—proper in any given situation: when handling investigations, interacting with the president, or releasing information. By the end, something had become clear. Mr. Comey was not merely a player in the past year’s palaver. He was the player.

It was Mr. Comey who botched the investigation of Mrs. Clinton by appropriating the authority to exonerate and excoriate her publicly in an inappropriate press event, and then by reopening the probe right before the election. This gave Mrs. Clinton’s supporters a reason to claim they’d been robbed, which in turn stoked the “resistance” that has overrun U.S. politics.

We now know it didn’t have to be this way. Mr. Comey explained that he had lost faith in then-Attorney General Loretta Lynch’s ability to handle the affair, in part because she had directed him to describe the probe in public as a “matter” rather than an “investigation.” That one of President Obama’s political appointees outright directed the head of the FBI to play down an investigation is far more scandalous than any accusation aired about Mr. Trump. Mr. Comey said it gave him a “queasy” feeling. But did he call on Ms. Lynch to recuse herself? Did he demand a special counsel? No. Mr. Comey instead complied with the request. Then he judged that the only proper way to clean up the mess was to flout all the normal FBI protocols. Vive la resistance.

It was Mr. Comey who launched an investigation into Russian meddling last July and expanded it to look for possible collusion with the Trump campaign. That may well have been warranted. Yet before the election his FBI had leaked this to the press, casting an aura of illegitimacy on a new president and feeding conspiracy theories based on, in Mr. Comey’s words, “nonsense” reporting.

Mr. Comey could have spared us this by simply stating, as he acknowledged Thursday, that Mr. Trump wasn’t under investigation. One could argue he had a duty to explain, given that he’d taken the unusual step of confirming the probe, and given the leaks from his FBI and the flood of fake news that resulted. But no. James Comey judged that (in this case, at least) it would be improper to speak out. So we’ve had all Russia all the time. CONTINUE AT SITE

James Comey’s first post-FBI appearance in front of the Senate on Thursday turned out to be a political anticlimax, with no major revelations about the alleged Trump-Russia nexus or the President’s supposed attempt to derail the investigation. But nearly three hours of testimony did expose the methods of the highly political former FBI director.

To wit, Mr. Comey is trying to have it both ways. He worked to leave the impression that Mr. Trump had committed a crime or at least an abuse of power, even as he abdicated his own obligations as a senior law-enforcement officer to report and deter such misconduct.

Mr. Comey confirmed that Mr. Trump never tried to block the FBI’s larger probe of potential Russian entanglement in the election and even encouraged the FBI, noting that “if some of my satellites did something wrong, it’d be good to find that out.” Despite this probative evidence, Mr. Comey claims that in an Oval Office meeting in February Mr. Trump importuned him to close the case on Michael Flynn, the National Security Adviser who had recently been fired for misleading the Vice President.

Mr. Trump, according to Mr. Comey, defended Mr. Flynn, saying “he is a good guy. I hope you can let this go.” Mr. Comey explained that “I took it as a direction to get rid of this investigation.”

But he wouldn’t answer when Senators asked if such a direction was illegal. “I don’t think it’s for me to say whether the conversation I had with the President was an effort to obstruct,” Mr. Comey said. “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.”

Mr. Comey also admitted that after he was fired he leaked his personal memos about his Trump conversations, via a cutout at Columbia Law School, “because I thought that might prompt the appointment of a special counsel.” So Mr. Comey triggers Robert Mueller’s new assignment and then tosses him responsibility while still intimating that Mr. Trump violated the law.

This legerdemain is an awfully convenient self-defense. The important question is whether Mr. Comey believed Mr. Trump was obstructing justice at the time, and Mr. Comey’s behavior then doesn’t confirm his Senate tale.

Mr. Trump had expressed the same sentiments about Mr. Flynn’s bona fides in public and on Twitter , so his preferences were no secret. But if Mr. Comey really believed Mr. Trump was trying to block the Flynn probe, then he had a legal duty to report Mr. Trump’s conduct to his Justice Department superiors or the White House counsel. Obstruction of justice—intentionally attempting to impede an investigation—is a crime.

Mr. Comey said that he was “so stunned” that he lacked “the presence of mind” even to tell Mr. Trump that his request was improper. But he was able to gain enough composure to write up the experience in the car after the meeting, and to discuss the meeting, by his own testimony, with his chief of staff, the FBI deputy director, the associate deputy director, the general counsel, the deputy director’s chief counsel and the head of the FBI office of national security. But he never informed Attorney General Jeff Sessions, the Deputy AG or any other supervisor.

This abdication is especially remarkable for someone as experienced in the corridors of power as Mr. Comey. This is a government veteran who served three Presidents in senior positions and in 2004 predrafted a letter of resignation as Acting Attorney General to threaten President Bush over wiretapping.

https://www.gatestoneinstitute.org/

The statement may provide political ammunition to Trump opponents, but unless they are willing to stretch James Comey’s words and take Trump’s out of context, and unless they are prepared to abandon important constitutional principles and civil liberties that protect us all, they should not be searching for ways to expand already elastic criminal statutes and shrink enduring constitutional safeguards in a dangerous and futile effort to criminalize political disagreements.

The first casualty of partisan efforts to “get” a political opponent — whether Republicans going after Clinton or Democrats going after Trump — is often civil liberties. All Americans who care about the Constitution and civil liberties must join together to protest efforts to expand existing criminal law to get political opponents.

Today it is Trump. Yesterday it was Clinton. Tomorrow it could be you.

In 1992, then President George Walker Bush pardoned Caspar Weinberger and five other individuals who had been indicted or convicted in connection with the Iran-Contra arms deal. The special prosecutor, Lawrence Walsh, was furious, accusing Bush of stifling his ongoing investigation and suggesting that he may have done it to prevent Weinberger or the others from pointing the finger of blame at Bush himself. The New York Times also reported that the investigation might have pointed to Bush himself.

This is what Walsh said:

“The Iran-contra cover-up, which has continued for more than six years, has now been completed with the pardon of Caspar Weinberger. We will make a full report on our findings to Congress and the public describing the details and extent of this cover-up.”

Yet President Bush was neither charged with obstruction of justice nor impeached. Nor have other presidents who interfered with ongoing investigations or prosecutions been charged with obstruction.

It is true that among the impeachment charges levelled against President Nixon was one for obstructing justice, but Nixon committed the independent crime of instructing his aides to lie to the FBI, which is a violation of section 1001 of the federal criminal code.

It is against the background of this history and precedent that the statement of former FBI Director James must be considered. Comey himself acknowledged that,

“throughout history, some presidents have decided that because ‘problems’ come from Justice, they should try to hold the Department close. But blurring those boundaries ultimately makes the problems worse by undermining public trust in the institutions and their work.”

Comey has also acknowledged that the president had the constitutional authority to fire him for any or no cause. President Donald Trump also had the constitutional authority to order Comey to end the investigation of Flynn. He could have pardoned Flynn, as Bush pardoned Weinberger, thus ending the Flynn investigation, as Bush ended the Iran-Contra investigation. What Trump could not do is what Nixon did: direct his aides to lie to the FBI, or commit other independent crimes. There is no evidence that Trump did that.

With these factors in mind, let’s turn to the Comey statement.

Former FBI Director James Comey’s written statement, which was released in advance of his Thursday testimony before the Senate Intelligence Committee, does not provide evidence that President Trump committed obstruction of justice or any other crime. Indeed it strongly suggests that even under the broadest reasonable definition of obstruction, no such crime was committed.

The crucial conversation occurred in the Oval Office on February 14 between the President and the then director. According to Comey’s contemporaneous memo, the president expressed his opinion that General Flynn “is a good guy.” Comey replied: “He is a good guy.”

The President said the following: “I hope you can see your way clear to letting this thing go.”

Comey understood that to be a reference only to the Flynn investigation and not “the broader investigation into Russia or possible links to the campaign.”

Comey had already told the President that “we were not investigating him personally.”

Comey understood “the President to be requesting that we drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December.”

Comey did not say he would “let this go,” and indeed he did not grant the president’s request to do so. Nor did Comey report this conversation to the attorney general or any other prosecutor. He was troubled by what he regarded as a breach of recent traditions of FBI independence from the White House, though he recognized that “throughout history, some presidents have decided that because ‘problems’ come from the Department of Justice, they should try to hold the Department close.”

That is an understatement.

Throughout American history — from Adams to Jefferson to Lincoln to Roosevelt to Kennedy to Obama — presidents have directed (not merely requested) the Justice Department to investigate, prosecute (or not prosecute) specific individuals or categories of individuals.

It is only recently that the tradition of an independent Justice Department and FBI has emerged. But traditions, even salutary ones, cannot form the basis of a criminal charge. It would be far better if our constitution provided for prosecutors who were not part of the executive branch, which is under the direction of the president.

In Great Britain, Israel and other democracies that respect the rule of law, the Director of Public Prosecution or the Attorney General are law enforcement officials who, by law, are independent of the Prime Minister.

But our constitution makes the Attorney General both the chief prosecutor and the chief political adviser to the president on matters of justice and law enforcement.

The president can, as a matter of constitutional law, direct the Attorney General, and his subordinate, the Director of the FBI, tell them what to do, whom to prosecute and whom not to prosecute. Indeed, the president has the constitutional authority to stop the investigation of any person by simply pardoning that person.

Assume, for argument’s sake, that the President had said the following to Comey: “You are no longer authorized to investigate Flynn because I have decided to pardon him.” Would that exercise of the president’s constitutional power to pardon constitute a criminal obstruction of justice? Of course not. Presidents do that all the time.

The first President Bush pardoned Caspar Weinberger, his Secretary of Defense, in the middle of an investigation that could have incriminated Bush. That was not an obstruction and neither would a pardon of Flynn have been a crime. A president cannot be charged with a crime for properly exercising his constitutional authority

For the same reason President Trump cannot be charged with obstruction for firing Comey, which he had the constitutional authority to do.

The Comey statement suggests that one reason the President fired him was because of his refusal or failure to publicly announce that the FBI was not investigating Trump personally. Trump “repeatedly” told Comey to “get that fact out,” and he did not.

If that is true, it is certainly not an obstruction of justice.

Nor is it an obstruction of justice to ask for loyalty from the director of the FBI, who responded “you will get that (‘honest loyalty’) from me.”

Comey understood that he and the President may have understood that vague phrase — “honest loyalty” — differently. But no reasonable interpretation of those ambiguous words would give rise to a crime. 
 Many Trump opponents were hoping that the Comey statement would provide smoking guns.

It has not.

Instead it has weakened an already weak case for obstruction of justice.

The statement may provide political ammunition to Trump opponents, but unless they are willing to stretch Comey’s words and take Trump’s out of context, and unless they are prepared to abandon important constitutional principles and civil liberties that protect us all, they should not be searching for ways to expand already elastic criminal statutes and shrink enduring constitutional safeguards in a dangerous and futile effort to criminalize political disagreements.

The first casualty of partisan efforts to “get” a political opponent — whether Republicans going after Clinton or Democrats going after Trump — is often civil liberties. All Americans who care about the Constitution and civil liberties must join together to protest efforts to expand existing criminal law to get political opponents.

Today it is Trump. Yesterday it was Clinton. Tomorrow it could be you.

Then-Director of the Federal Bureau of Investigation, James Comey, testifies in front of the Senate Judiciary Committee, May 3, 2017, in Washington, DC. (Photo by Eric Thayer/Getty Images)

Alan Dershowitz, Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of “Taking the Stand: My Life in t