CNN has published a rather odd report in which it says that former FBI Director Comey “now believes” that Donald Trump tried to influence the Russiagate inquiry, but that he clearly does not think this amounted to an obstruction of justice
“You have to have intent in order to obstruct justice in the criminal sense,” the source said, adding that “intent is hard to prove.”
(bold italics added)
The words “now believes” are the giveaway, since they show that Comey did not think Trump was trying to influence him whilst he was actually in charge of the Russiagate inquiry, and did not think this until after Trump had fired him. Indeed a later part of the same CNN report – which is obviously sourced from Comey – says as much
Comey’s view of Trump’s intent in their conversations is nuanced, sources say. He initially believed that he could school the new President and White House in what was appropriate during their communications. But after his firing, the question of Trump’s intent could become more problematic, one source said. Trump told NBC’s Lester Holt in an interview that he was thinking “of the Russia thing” when he dismissed Comey. Sources say Comey had reached no conclusion about the President’s intent before he was fired. But Comey did immediately recognize that the new President was not following normal protocols during their interactions.
This shows quite clearly that Trump at no point directly interfered in the Russiagate inquiry.
In light of that there was and could have been no ‘obstruction of justice’ – a problematic concept anyway given that the Russiagate inquiry is a counter-espionage inquiry not a criminal inquiry
– since Trump obviously did nothing which could have amounted to an obstruction of justice. As I have already pointed out, the wording of Comey’s attendance note of his meeting with Trump on 14th February 2017 – even if it is an accurate record of what Trump said (which for the record, I think it is) – does not show an obstruction of justice
As for Comey’s speculations after Trump fired him of what Trump’s intentions might have been, in the absence of any action by Trump to interfere in the inquiry these speculations are or should be neither here nor there. This is quite apart from the fact that speculations about the boss’s intentions by an aggrieved former employee who has just been fired are not normally given much weight.
Anyway this CNN story strongly suggests that Comey’s attendance notes of his meetings with Trump contain no ‘smoking gun’, and that those who are looking forward to them in the hope that they do are going to be disappointed.
I would add that Comey’s deputy FBI Deputy Director Andrew McCabe has already said that there was no interference
by Trump or anyone else in the Russiagate inquiry, so in a sense the CNN story tells us nothing we do not already know.
There are however two further points which can be made about this CNN story.
Firstly, it seems Comey is saying that he was distinctly uncomfortable about his meetings with Trump, and that he tried to explain this to Trump, and pressed Trump not to speak to him directly but to go through the normal Justice Department channels.
If so then Comey was absolutely right to feel this way and to tell Trump this. As I have previously said, Trump was extremely unwise and arguably wrong to meet with Comey at all
whilst the Russiagate inquiry was underway, and if the CNN story is true then Comey tried unsuccessfully to point this out to him.
However it has to be said that Comey himself is also open to criticism here.
If Comey felt it was inappropriate for him to meeting Trump (the CNN story says he was “disgusted” on one occasion when Trump hugged him) then he should have simply refused to meet with Trump, as he was perfectly entitled to do. He should also in that case have sent a written memo setting out his reasons for not meeting Trump both to Trump himself and to the Justice Department.
There is nothing in the CNN story to suggest that Comey ever wrote or sent such a memo – as there presumably would be if he did – and nothing to suggest Comey ever refused to meet with Trump despite his alleged concerns. On the contrary the CNN story claims Comey willingly continued to meet with Trump in order to “train” him as to what the ‘proper procedures’ were
Benjamin Wittes, editor in chief of the Lawfare blog and a Comey friend, writes that Comey called his interactions with Trump “training” in order to “re-establish” appropriate boundaries. In his conversations, Wittes writes, “Comey never specifically said this was about the Russia matter” but he assumed that it was. Comey saw his job, Wittes writes, as an effort to “protect the rest of the bureau from improper contacts and interferences from a group of people he did not regard as honorable.”
If so then this was wholly inappropriate. It is not the FBI Director’s job to “train” the President, and it is not an excuse for having inappropriate contacts with the President that the FBI Director was trying to do this.
As for trying to “protect the rest of the bureau from improper contacts and interferences from a group of people he did not regard as honorable”, the correct way for Comey to have done that was as I have said to set out the ground rules and his concerns in writing in memo circulated to both Trump and the Justice Department. Certainly it was not to continue with person-to-person meetings with Trump which Comey felt were inappropriate.
I would add that as a lawyer and a former Deputy Attorney General, Comey ought to have been aware of all of this. I would add that the sentiment attributed to Comey that some of the President’s people were not “honourable” suggests strong bias against them inappropriate on the part of an impartial investigator tasked with investigating them.
It may be that more information will come to light when Comey gives his evidence which will show his conduct in a better light. I have to say however that for the moment all this talk about Comey trying to “train” the President looks to me like a desperate attempt by Comey to rationalise and excuse conduct which in hindsight he knows was inappropriate, and which has exposed him to criticism, perhaps from his nemesis, Deputy Attorney General Rod Rosenstein.
The second point is that the CNN story once again shows how disastrously Trump has mishandled Comey’s dismissal
Since Comey can apparently point to no action of Trump’s which shows interference in the conduct of the Russiagate inquiry, had Trump handled the dismissal properly by first showing Comey the Rosenstein memo and asking him to comment on it and possibly inviting for Comey’s resignation before he fired him, and if Trump had not foolishly told the media that he had the “Russia thing” in mind when he fired Comey, then the whole question of obstruction of justice would never have arisen.
As it is, entirely because of his own actions, Trump has given Comey arguments to make against him, even if as the CNN story shows they are poor arguments lacking in substance.
The result is that Trump must now look forward to the usual terrible headlines after Comey gives evidence, which he could have avoided if he had handled this differently.
On the strength of the CNN story there is nothing there which should however give him undue worry.