James Comey’s statement is totally believable, but it won’t matter

In advance of his testimony before the Senate today, former FBI head James Comey released a written statement. In it, he describes his interactions with President Trump regarding the FBI’s investigations into Russian interference in the US election. The statement is vivid, consistent, and appears free from bias.

Comey wrote memos after each interaction with Trump, to reinforce his recollection. As a result, his narrative is full of detail and credible. I recommend that you read it yourself — it’s only 7 pages long, and quite easy to understand. You’ll learn more from this than you will from all the talking heads on cable TV, or the partisan bickering that’s going to take place in the dramatic hearings today.

This document and Comey’s testimony will frustrate everyone. Trump supporters will find it embarrassing. Trump opponents will find it provides no “smoking gun” that implicates Trump in a criminal or impeachable offense. If Comey wanted to smear Trump, he could have invented something much worse. If he wanted to vindicate Trump, he could have left many of these descriptions out. The fact that this document fails both sides makes it more credible — it sounds more like what actually happened, rather than what either side would like to believe.

Details add credibility

The descriptions are more believable because of the narrative detail — you really get a sense of what it was like for Comey to be in the room. Here are descriptions of how he ended up alone with Trump on two occasions.

The President and I had dinner on Friday, January 27 at 6:30 pm in the Green Room at the White House. . . . It was unclear from the conversation who else would be at the dinner, although I assumed there would be others. It turned out to be just the two of us, seated at a small oval table in the center of the Green Room. Two Navy stewards waited on us, only entering the room to serve food and drinks.

On February 14, I went to the Oval Office for a scheduled counterterrorism briefing of the President. He sat behind the desk and a group of us sat in a semi-circle of about six chairs facing him on the other side of the desk. The Vice President, Deputy Director of the CIA, Director of the National CounterTerrorism Center, Secretary of Homeland Security, the Attorney General, and I were in the semi-circle of chairs. I was directly facing the President, sitting between the Deputy CIA Director and the Director of NCTC. There were quite a few others in the room, sitting behind us on couches and chairs. The President signaled the end of the briefing by thanking the group and telling them all that he wanted to speak to me alone. I stayed in my chair. As the participants started to leave the Oval Office, the Attorney General lingered by my chair, but the President thanked him and said he wanted to speak only with me. The last person to leave was Jared Kushner, who also stood by my chair and exchanged pleasantries with me. The President then excused him, saying he wanted to speak with me. When the door by the grandfather clock closed, and we were alone, the President began by saying, “I want to talk about Mike Flynn.”

After he had spoken for a few minutes about leaks, Reince Priebus leaned in through the door by the grandfather clock and I could see a group of people waiting behind him. The President waved at him to close the door, saying he would be done shortly. The door closed.

These descriptions don’t clarify anything that Trump said or didn’t say. But they make it clear that Trump specifically wanted to get Comey alone before speaking about these topics.

How a Trump loyalist would see this: Trump the dealmaker was following his instincts to develop a personal, one-on-one relationship with Comey.

How a Trump opponent would see this: Trump wanted to make unethical suggestions to Comey without other witnesses present.

Comey provides context for his conversations

Why do these conversations matter? A Trump opponent would say they provide evidence of wrongdoing. But Comey instead creates the context of the work that the FBI does and the traditional reasons that it needs to operate without interference from the White House:

It is important to understand that FBI counter-intelligence investigations are different than the more-commonly known criminal investigative work. The Bureau’s goal in a counter-intelligence investigation is to understand the technical and human methods that hostile foreign powers are using to influence the United States or to steal our secrets. The FBI uses that understanding to disrupt those efforts. Sometimes disruption takes the form of alerting a person who is targeted for recruitment or influence by the foreign power.  Because the nature of the hostile foreign nation is well known, counterintelligence investigations tend to be centered on individuals the FBI suspects to be witting or unwitting agents of that foreign power. When the FBI develops reason to believe an American has been targeted for recruitment by a foreign power or is covertly acting as an agent of the foreign power, the FBI will “open an investigation” on that American and use legal authorities to try to learn more about the nature of any relationship with the foreign power so it can be disrupted.

At one point, I explained why it was so important that the FBI and the Department of Justice be independent of the White House. I said it was a paradox: 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.

How a Trump loyalist would see this: Comey is painting himself as non-political and trying to justify his disloyalty.

How a Trump opponent would see this: Comey is doing his job as an independent FBI chief.

Trump and Comey discussed his continued tenure

Anyone who has a boss knows that the question “Do you want to stay in this job?” really means “Your job is at risk if you don’t do what I want.” That’s why this dialogue that Comey reports is troubling.

The President began by asking me whether I wanted to stay on as FBI Director, which I found strange because he had already told me twice in earlier conversations that he hoped I would stay, and I had assured him that I intended to. He said that lots of people wanted my job and, given the abuse I had taken during the previous year, he would understand if I wanted to walk away.

My instincts told me that the one-on-one setting, and the pretense that this was our first discussion about my position, meant the dinner was, at least in part, an effort to have me ask for my job and create some sort of patronage relationship. That concerned me greatly, given the FBI’s traditionally independent status in the executive branch.

I replied that I loved my work and intended to stay and serve out my ten-year term as Director. And then, because the set-up made me uneasy, I added that I was not “reliable” in the way politicians use that word, but he could always count on me to tell him the truth. I added that I was not on anybody’s side politically and could not be counted on in the traditional political sense, a stance I said was in his best interest as the President.

How a Trump loyalist would see this: Trump was assessing Comey’s dedication. Comey’s comments about a “patronage relationship” are his own self-justifying interpretation.

How a Trump opponent would see this: Trump was implicitly threatening Comey, and ended up firing him.

The dialogue is detailed and troubling

Comey comes close to providing a transcript of his discussions. Since what Trump said is highly relevant, these descriptions are crucial to understanding whether Trump behaved in a criminal or impeachable way.

He then said, “I need loyalty.” I replied, “You will always get honesty from me.” He paused and then said, “That’s what I want, honest loyalty.” I paused, and then said, “You will get that from me.” As I wrote in the memo I created immediately after the dinner, it is possible we understood the phrase “honest loyalty” differently, but I decided it wouldn’t be productive to push it further. The term – honest loyalty – had helped end a very awkward conversation and my explanations had made clear what he should expect.

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.”

On the morning of March 30, the President called me at the FBI. He described the Russia investigation as “a cloud” that was impairing his ability to act on behalf of the country. He said he had nothing to do with Russia, had not been involved with hookers in Russia, and had always assumed he was being recorded when in Russia. He asked what we could do to “lift the cloud.” I responded that we were investigating the matter as quickly as we could, and that there would be great benefit, if we didn’t find anything, to our having done the work well. He agreed, but then re-emphasized the problems this was causing him.

How a Trump loyalist would see this: Comey is reporting things so that it seems as if Trump was trying to coerce him.

How a Trump opponent would see this: Trump was trying to coerce him.

Comey addresses the fact that Trump was not a target of the investigation

In his letter firing Comey, Trump included the phrase “While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation.” Comey addresses this in his narrative.

In that context, prior to the January 6 meeting, 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.

During the dinner, the President returned to the salacious material I had briefed him about on January 6, and, as he had done previously, expressed his disgust for the allegations and strongly denied them. He said he was considering ordering me to investigate the alleged incident to prove it didn’t happen. I replied that he should give that careful thought because it might create a narrative that we were investigating him personally, which we weren’t, and because it was very difficult to prove a negative. He said he would think about it and asked me to think about it.

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. He repeatedly told me, “We need to get that fact out.” (I did not tell the President that the FBI and the Department of Justice had been reluctant to make public statements that we did not have an open case on President Trump for a number of reasons, most importantly because it would create a duty to correct, should that change.)

How a Trump loyalist would see this: The FBI is not investigating Trump.

How a Trump opponent would see this: The FBI is investigating Trump’s campaign team and hasn’t yet found the evidence that implicates Trump.

Credible, but not enough

For all these reasons, Comey sounds truthful. The focus is on what actually happened and who said what in which circumstances. The narrative is consistent. There are few weasel words and no partisan accusations. I believe what I’m reading.

I doubt that anything substantive is going to come out of the hearings today beyond what Comey just released.

Trump has clearly violated a strongly held government custom, that the president does not interfere in FBI investigations. There are good reasons for this custom, because it prevents presidents from using the FBI as a weapon against opponents. But it is not a law and whether it is a “high crime” — an instance of malfeasance and a possible reason for impeachment — is up to Congress.

Is Trump guilty of obstruction of justice? In the Washington Post, Philip Allen Lacovera, a former Watergate prosector, says it is. He points out that “The obstruction of justice statute prohibits not only successful interference with pending criminal investigations but also any use of “threats” to “endeavor” to obstruct an investigation. Thus, it is the attempt or objective that is criminal . . .”

But, as quoted in CNBC, Columbia University Law Professor James Coffee said “Any formal charge of obstruction against Trump would rest heavily on the exact wording of any exchange with intelligence or law enforcement officials, he said. Short of impeachment, it’s unlikely such an obstruction charge would be brought directly against Trump by the current Justice Department.”

It’s going to get ugly today. The statement by Trump’s lawyer that Trump feels “totally vindicated” by Comey’s statement is unhinged. By any standard, Comey’s statements are believable and damning — what the president did is well outside the norms of how we have expected presidents to act. But it’s pretty hard to go from there to an impeachment or criminal prosecution. Since no one else was present for most of Comey’s statements, there’s no corroboration, regardless of how credible he might be.

We’ll spend the next few months talking about this, but other than impairing Trump’s ability to get anything else done, it won’t bring down the president.