9 things to know about James Comey’s testimony

Former FBI Director Comey has concluded the open part of his testimony to the Senate Judiciary Committee.

The quality of the questioning – both by Republicans and Democrats  – struck me as extremely poor.  I found Comey’s written testimony to the Committee published yesterday far more informative than his answers today.

This was largely the result of the Senators’ collective failure to ask pertinent questions or – given the short time for questioning permitted to each Senator – to coordinate their questioning properly with each other.

Here are the main points that came out from Comey’s testimony as I see them:

(1) Comey’s written testimony makes it clear what were the primary topics on the President’s mind in his discussions with Comey.  They were

(a) his desire for a statement by the Justice Department or the FBI that he was not personally under investigation; and

(b) his desire for an investigation of the leaks, which were destabilising his administration.

(2) Comey provided no evidence that the President interfered in or sought to interfere in the conduct of the Russiagate investigation.  On the contrary the details of that investigation do not seem to have been discussed by Comey and the President at all.

At one point in their discussions the President said that if any of the people in his campaign team were guilty of any wrongdoing then the law should take its course.  In light of this the whole obstruction of justice allegation in relation to the Russiagate investigation collapses.  I cannot see how it can be sustained any further.

I would add that Comey in fairness to him was at pains to say both in his verbal and in his written testimony that the FBI’s Russiagate investigation is a counter-espionage investigation into Russia’s alleged role in the US election not a criminal investigation.  I have discussed the relevance of this here.

(3) Comey confirmed that the President is not under under investigation as part of the FBI’s Russiagate probe.

(4) Comey resisted the President’s wish for a public statement saying that the President is not under investigation in the Russiagate probe.  His reasons for doing so were that the President might hypothetically come under investigation in the future, which might require a future statement contradicting any previous statement that he was not under investigation as part of the probe.

That is a totally wrong reason for refusing the President’s request whose logic is totally flawed.  I will discuss this in detail below.

(5) Unfortunately it is impossible to discuss Comey’s response to the President’s requests for an investigation of the leaks because shamefully the Senators showed no interest in this subject.  Comey’s written testimony wrongly downplays the importance of this issue.

Those are the main points to come out of Comey’s testimony.  There are two further points of less importance, though they seem to obsess the media commentators.  I will briefly touch on them.

(6) the President wanted the FBI to end its investigation of General Flynn, provoked by General Flynn’s now notorious telephone conversation with the Russian ambassador.  However the President did not tell or order or threaten Comey to end this investigation, which continued regardless despite the President’s wish, and which does so still.  Comey’s later sacking was wholly unconnected to the President’s wish that the FBI end this investigation.

A point which is completely missed in all discussions of this question – and which none of the Senators brought up in their questioning of Comey today – is that this investigation commenced in December 2016 and relates to a single telephone call between the Russian ambassador and General Flynn.  The only criminal offence anyone has suggested General Flynn may have committed in connection with this call is one under the Logan Act, under which no one has been prosecuted in the two hundred years of its existence.

Notwithstanding this, and notwithstanding that the investigation has been underway for 6 months, there is still no sign of it ending, or of any decision being made whether to prosecute General Flynn or not.  That is a scandal, a much greater one than the fact that the President expressed a wish back in February that this absurd investigation be brought to an end.

(7) the President’s request to Comey for “loyalty” is so ambiguous and so open to differing interpretations – a fact admitted by Comey himself – that I don’t think anything turns on it.

Paul Ryan is almost certainly right in seeing this request as just another example of the President’s inexperience and lack of understanding of the proper etiquette he needs to follow in his interactions with senior officials.  Certainly I do not think this request is evidence of any intention by the President to interfere in the course of the Russiagate investigation, and since we now know from Comey that no such interference ever took place, there is no basis for using this request in any charge against the President for obstruction of justice.

There are two other points of factual interest that came out of Comey’s testimony today.

(8) Comey has admitted that it was he who leaked quotes from his attendance note of his meeting with the President on 14th February 2017, when the subject of the Flynn investigation was discussed.

This is very much Comey’s style.  He likes to give the impression of being an honest and straight talking cop, and this was very much a theme of his testimony today.  In reality he has all the deviousness of a long standing veteran of bureaucratic infighting, selectively quoting from his own attendance note so as heighten the drama of his own testimony, and so as to ensure that the focus during this testimony is on those topics that he wants it to be.

(9) It is now clear that Attorney General Jeff Sessions’s decision to recuse himself from the Russiagate investigation was under active consideration two weeks before it was announced.  Comey admits this in his written testimony.

The publication of news of Sessions’s meetings with Russian ambassador Kislyak therefore had nothing to do with Sessions’s decision to recuse himself, which had already been taken before the publication of this information took place, and which he was about to announce anyway when the publication of this information took place.  Sessions’s statement announcing his decision to recuse himself all but said as much, and we now know from Comey that what it said was true.

That means that the publication of the information about Sessions’s meetings with the Russian ambassador was leaked so as to put Sessions’s announcement in a false light, and so as to create an impression that there was something sinister about Sessions’s meetings with the Russian ambassador, when this was not the case.

That is my summary of what we have learnt from Comey today.  Has Comey’s testimony taken us any further forward?

Firstly, though we can expect the usual lurid headlines, I cannot see anything which remotely amounts to a convincing case for obstruction of justice in anything that Comey said during his testimony today.  Even allowing for the fact that impeachment is a political rather than a legal process, I cannot see how in the absence of any case for obstruction of justice impeachment proceedings can get off the ground, and I expect those claims to fizzle out over the next few weeks.

Secondly, it should be said clearly that the President’s requests to Comey that there be a public statement confirming that he was not personally under investigation were perfectly proper and legitimate, even though the President was wrong to address them to Comey personally, and should have done so through the Department of Justice.

The President was perfectly right to say that the constant insinuations in the media that he might be under investigation for colluding with the Russians was putting his Presidency under “a cloud” and was interfering with his ability to conduct foreign policy, and given that he was not under investigation the President was fully justified in wanting to have the fact that he was not under investigation made public.

As for Comey’s resort to hypothetical scenarios in order to deny the President’s request, it should be said clearly that this was wholly inappropriate, and the fact that Comey during his testimony hid behind the alleged opinions of one of his investigators in order to justify his refusal shows that he knows it.

As to the reason Comey gave for refusing the President’s request, that an announcement that the President was not under investigation might have to be publicly contradicted if the President ever were to come under investigation in the future, it should be said clearly that the reasoning here is fundamentally flawed, for reasons which are not difficult to explain.

Obviously should the President ever come under investigation then the FBI and the Justice Department must make the fact public, and it would be wholly wrong if they did not.  That should happen irrespective of whether or not there had been a previous announcement that the President was not under investigation.   The one should in no sense be dependent on the other.

Comey’s implication that there would only have to be a public announcement of an investigation of the President if a previous announcement had been made that the President was not under investigation – so that this previous statement would have to be ‘corrected’ – is not only completely wrong.  It is actually utter nonsense and Comey knows it.  It is astounding – and lamentable – that it seems that none of the Senators do.

Comey is an enigma is in the Russiagate case.  There is some evidence that initially he resisted the hysteria which is driving it.  For example he refused to sign Clapper’s notorious October 2016 statement accusing the Russians of meddling in the US election.

At some point however Comey seems to have let himself become swept along by the hysteria, possibly because he was unnerved by the criticisms of his decision to drop the case against Hillary Clinton over her use of a private email server, and wanted to make up with the Democrats – who he probably thought would win the election – by taking their Russiagate claims seriously.

The result is a series of bad decisions which have been central in driving the Russiagate case, and which show that despite Comey’s tortuous denials by the time of the election he had clearly become totally committed to the Russiagate case, and was conducting it in a grossly partisan way.

Firstly, there was the truly bizarre decision to accept the opinion of a private company – CrowdStrike – that Russia was behind the hacking of John Podesta’s and the DNC’s computers, rather than have the FBI investigate the fact for itself.

Secondly is the credence shown to the ludicrous Trump Dossier, which Comey is now known to have been instrumental in adding as an appendix to the classified ODNI report shown to Trump in January, and which has been an essential part of the Russiagate investigation ever since.

Thirdly there was the truly bizarre decision to accede to Acting Attorney General Sally Yates’s paranoid demands for a criminal investigation under the Logan Act of General Flynn’s telephone conversation with Russian ambassador Kislyak.

That Comey’s relations with the President subsequently collapsed in acrimony in light of all this is hardly surprising.  Moreover it is clear that Comey could see what was coming, and that within days of the inauguration he was busy preparing his defence for the inevitable falling out with the President he must have known was bound to come.

I do not believe Comey’s claim that it is not his usual practice to make attendance notes of his meetings with senior officials.  On the contrary, both as a state official and a lawyer, I am sure Comey makes such attendance notes as a matter of course.

However it is clear that in this case he prepared his attendance notes and circulated them amongst his colleagues in a particular way in order to use them in the battle with the President which he knew was coming.  The fact that he selectively leaked quotes from the attendance notes in order to bolster his case before he gave his testimony confirms as much.

In the event, though the President acted extremely unwisely in his interactions with Comey, Comey ultimately has nothing to show.

The worst that can be said about the President is that his personal loyalty to General Flynn – and possibly his feelings of guilt about the way he dismissed him – led him to speak very indiscreetly about Flynn’s case to Comey.  However since he did not tell Comey to drop the case against Flynn or in any way pressure Comey to do so, and since the case continues anyway despite being totally absurd, I cannot see how a scandal – let alone grounds of impeachment – can be conjured up out of this.

In all other respects Comey’s evidence today was a damp squib, revealing nothing truly sinister or new.  Once the hysteria dies down more and more people will start to see that.  Already the President’s legal team are making that very point.

Once again, because of his own mishandling of Comey, the President faces some difficult headlines over the few days.  If he handles them sensibly, and leaves it to his legal team to respond to them, he has nothing however to worry about.