There is much to unpack in former FBI director James Comey’s almost three hours of live testimony today, but my summary is rather simple. The “big” conspiracy theory that’s circulating online — that Trump and his team colluded with the Russians, and Trump fired Comey because he was getting close to the truth — took some serious body blows. The smaller scandal (compared to active collusion with the Russians) — that Trump either abused his power or potentially obstructed justice when he fired James Comey — got a modest boost. At the same time, there’s still an enormous amount of information that we simply don’t have. Let’s break this down.
First, and this is critically important given the concerns about Russian collusion, Comey emphatically disputed a New York Times story that has served as the foundation for an enormous amount of public speculation of improper conduct. That story began:
Phone records and intercepted calls show that members of Donald J. Trump’s 2016 presidential campaign and other Trump associates had repeated contacts with senior Russian intelligence officials in the year before the election, according to four current and former American officials.
Obviously, if true, the report is deeply alarming. But today Comey said, under oath, that the story was “almost entirely wrong.” We still don’t know the nature and extent of Trump team communications with Russia, but the Times report was an important part of the worst conspiracy narratives, and now it’s relegated to the ash heap.
So, now, after months of anonymous leaks, not only is there still no evidence of collusion with Russian operatives, Comey directly refuted one of the key reports that raised serious and legitimate questions. Without knowing the classified information discussed in closed sessions, as of today we have to say that there is less ground for suspecting unlawful collusion in Russian election interference than we had before the hearing.
Second, not even the worst interpretation of Comey’s testimony indicates that Trump sought to shut down the entire Russia investigation. This, also, is an important point. If testimony emerged that Trump had tried to block not just the FBI’s investigation of Michael Flynn but also its entire inquiry into Russian efforts to interfere with the election, the nation wouldn’t just face a conventional question of public corruption but rather a grave threat to national security. In other words, the nation’s worst fears seem unsupported, and that’s good news indeed.
But if the potential “big” scandal just got smaller, the “small” scandal just got modestly bigger, because it’s now supported by sworn testimony. As so often happens in Washington, administrations flounder not so much because of the conduct being investigated but rather because of their conduct during the investigation. And in this case, Trump’s conduct is disturbing. It’s once again worth noting that we now have on-the-record, sworn evidence (combined with evidence from Trump himself) that the following things occurred:
1. Trump improperly asked the director of the FBI to pledge his loyalty to the president;
2. He improperly cleared the Oval Office to privately ask the director of the FBI to drop an ongoing investigation of a former senior White House aide and campaign surrogate;
3. He improperly directly asked the director of the FBI to make various public statements indicating that the president wasn’t being personally investigated;
4. Trump fired Comey after Comey did not comply with his various unusual and improper directives;
5. He then misled the public about the reason; and
6. He later admitted that he was, in fact, thinking of Comey’s conduct of the Russia investigation when he terminated him.
As Comey said in his testimony today, “I was fired in some way to change, or the endeavor was to change the way the Russia investigation was being conducted.” Comey’s right, that is a “very big deal.”
But “very big deal” is not the same thing as a “high crime or misdemeanor.” A president, for example, can fire an official with the purpose of improving the conduct of an investigation, so the mere fact that Trump “interfered” is not the same thing as saying that he obstructed justice. As my colleague Andrew McCarthy has repeatedly and rightly pointed out, the relevant statute requires evidence that the suspect “corruptly . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede” a pending proceeding. In other words, intent matters.
Critically, the president’s attorney just put out a statement strongly denying a number of Comey’s key claims, including the claim that Trump asked for loyalty and the claim that Trump asked Comey to let the Flynn matter go. He also claimed that Comey made “unauthorized disclosures” of “privileged communications” with the president (Comey admitted to being the ultimate source of leaks about his memos memorializing conversations with the president).
Unfortunately for Trump, despite his denials, there’s enough evidence of malign intent (clearing the Oval Office before asking Comey to drop the Flynn investigation, making improper demands for loyalty, initially deceiving the public about the reasons for Comey’s termination) that it now looks like the special counsel, Robert Mueller, is investigating Comey’s termination. In other words, Trump wasn’t under investigation for Russian collusion, but now — thanks to his conduct towards Comey — he is under likely investigation for obstruction of justice.
Unfortunately for Trump, despite his denials, there’s enough evidence of malign intent.
It’s worth pointing out, however, that any obstruction claim against Trump would have to clear a very high legal barrier. Trump not only has the power to fire Comey, he has the power to end DOJ investigations. When criminally investigating a public official for the use of his lawful powers, the evidence of corrupt intent has to be well-nigh overwhelming before filing a credible criminal charge.
At the same time, however, a president can abuse his power without violating criminal statutes. His actions can be wrong and dangerous without also breaking the law. And there are multiple elements of Trump’s conduct that are obviously and deeply problematic. Impeachment is a political process, not a criminal trial, and anyone who believes that federal statutes will ultimately dictate Trump’s political fate simply doesn’t understand the constitutional process. Trump’s primary protection against impeachment is and remains the loyalty of the Republican base and the Republican majority in Congress, not his ability to prevail before a jury of his peers.
Finally, a word of caution is in order. In spite of the avalanche of anonymous leaks, almost three hours of sworn testimony from the former director of the FBI, and a statement from the president, there is much we still don’t know. Just yesterday, Dan Coats, the director of national intelligence, and Admiral Michael Rogers, the director of the National Security Agency both evaded direct questions about conversations with Trump about the Russia investigation. The White House has thus far refused to confirm or deny the existence of a taping system, and — critically — there were numerous hints throughout the hearing that the public may not have all the facts regarding the reasons for Attorney General Jeff Sessions’s recusal.
Moreover, while some of the leak-based stories have proven accurate, others have been seriously challenged or flatly contradicted. Nothing that’s leak-based is “old news” until its confirmed through on-the-record testimony or proper investigative process. There are some people in Washington who can still keep secrets.
Comey’s testimony today was a milestone, not because it settled any significant issue but because it marked the first real opportunity to truly weigh the credibility of a significant witness. It will not be the last.