There’s evidence Donald Trump abused his power, but it’s not yet clear that he obstructed justice.
Earlier this afternoon the Senate Intelligence Committee released the text of former FBI director James Comey’s prepared testimony, which he’s slated to deliver Thursday morning. It’s detailed, it offers on-the-record confirmation of a variety of anonymously sourced news reports, and it’s damaging. To be sure, there are some elements that are good for President Trump, but overall it shows a chief executive placing improper pressure on the FBI director — pressure that no GOP politician would tolerate from a Democratic president.
Let’s break down the key elements, beginning with the parts that are good for Trump.
First, the testimony itself does not show that Trump is guilty of obstruction of justice. Turning to the key portion of Comey’s testimony, here’s the relevant excerpt of his summary of a February 14 meeting in the Oval Office:
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.”
This is clearly improper, but it isn’t a command, and Comey didn’t interpret it as a command. Here’s what Comey says:
I immediately prepared an unclassified memo of the conversation about Flynn and discussed the matter with FBI senior leadership. I had 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. I did not understand the President to be talking about the broader investigation into Russia or possible links to his campaign. I could be wrong, but I took him to be focusing on what had just happened with Flynn’s departure and the controversy around his account of his phone calls. Regardless, it was very concerning, given the FBI’s role as an independent investigative agency.
Comey was right to be concerned, but he was also correct not to interpret the president’s request as an unlawful act. Obstruction of justice is a legal term with a legal meaning, and Trump’s request on its face and by itself simply doesn’t satisfy the elements of the crime. Rather than comply with the president’s request, Comey consulted with his senior leadership team and decided to keep the information closely held to avoid tainting the investigation. This strikes me as a defensible and prudent act.
Second — and this is also important — Trump comes across as primarily angry that Comey won’t publicly state that Trump isn’t under investigation. He repeatedly expressed a desire that Comey say publicly what he’d apparently told Trump (and Congress) privately, that the FBI wasn’t “personally investigating” Trump. Again, here’s Comey:
I explained [to Trump] 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.)
And here’s Comey again, relaying another Trump request:
On the morning of April 11, the President called me and asked what I had done about his request that I “get out” that he is not personally under investigation. I replied that I had passed his request to the Acting Deputy Attorney General, but I had not heard back. He replied that “the cloud” was getting in the way of his ability to do his job. He said that perhaps he would have his people reach out to the Acting Deputy Attorney General. I said that was the way his request should be handled. I said the White House Counsel should contact the leadership of DOJ to make the request, which was the traditional channel.
While these requests are highly unusual, at best, they don’t create the impression that Trump is actively seeking to conceal wrongdoing. Instead, they show a man eager to publicly clear his name.
That’s not to say that the memo in any sense “clears” Trump. It certainly doesn’t support a worst-case charge — that Trump intentionally obstructed an investigation into claims that he personally colluded with the Russians. But there’s a difference between “worst-case” and “no case.” In fact, in context, Comey’s testimony is still extraordinarily damaging. Let’s look at the worst elements for the president.
First, Comey does in fact claim that Trump asked him for loyalty, and the picture he paints is both vivid and disturbing. At a private dinner on January 27, Comey and the president had the following exchange:
A few moments later, the President said, “I need loyalty, I expect loyalty.” I didn’t move, speak, or change my facial expression in any way during the awkward silence that followed. We simply looked at each other in silence. The conversation then moved on, but he returned to the subject near the end of our dinner.
More:
Near the end of our dinner, the President returned to the subject of my job, saying he was very glad I wanted to stay, adding that he had heard great things about me from Jim Mattis, Jeff Sessions, and many others. 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.
There’s no serious argument that this is appropriate behavior from an American president. Imagine for a moment testimony that President Barack Obama or a hypothetical President Hillary Clinton had a similar conversation with an FBI director. The entire conservative-media world would erupt in outrage, and rightly so. The FBI director is a law-enforcement officer, loyal to the Constitution, not the president’s consigliere.
Second, while the request to drop the Flynn investigation is not by itself obstruction of justice, by providing sworn testimony of the request, Comey is putting in place a piece of a larger puzzle that’s getting much closer to obstruction.
We now have on-the-record testimony alleging that Trump made a request to drop at least a portion of the FBI’s Russia investigation.
Here’s the larger puzzle: We now have on-the-record testimony alleging that Trump made a request to drop at least a portion of the FBI’s Russia investigation, a request that he cleared the room to make. We have on-the-record testimony that the director refused Trump’s request. Next, we know that Trump then fired Comey, provided a false pretext for doing so, and later confirmed that he terminated Comey at least in part because of the Russia controversy. I still don’t believe that this adds up to a charge of criminal obstruction (for a host of reasons that I discussed recently on my podcast with my friend and former assistant U.S. attorney Ken White), but it still constitutes an intolerable abuse of power.
Moreover, the idea that Trump fired Comey not to stop the investigation but rather for his failure to publicly state that Trump wasn’t under investigation hardly clears the cloud from Trump’s conduct. The request — in the midst of an ongoing investigation — was improperly made through improper channels. But Trump apparently wanted an FBI director who would play by Trump’s rules.
The end of Comey’s testimony is chilling, and it refers right back to Trump’s initial request for “loyalty.” After Trump again asked Comey to publicly state that Trump wasn’t under investigation, Comey urged Trump to ask the White House counsel to take his request to the Department of Justice:
He said he would do that and added, “Because I have been very loyal to you, very loyal; we had that thing you know.” I did not reply or ask him what he meant by “that thing.” I said only that the way to handle it was to have the White House Counsel call the Acting Deputy Attorney General. He said that was what he would do and the call ended.
That was the last time I spoke with President Trump.
The testimony paints an ugly picture of the president. Trump’s interactions with Comey are excessive and bizarre (to the point of ordering everyone out of the Oval Office before making his request that Comey drop the Flynn investigation). Comey notes that he spoke only twice to President Obama, once when the president called him to say goodbye. By contrast, he had nine private conversations with President Trump in a mere four months.
To put this in perspective, the GOP was rightly outraged when Bill Clinton met privately — once — with Loretta Lynch during the Hillary e-mail investigation. Here we have evidence of multiple meetings where the president directly tried to influence the conduct of an FBI investigation. This is far worse and far better-documented misconduct.
Overall, one gets the impression that the president views himself less as the president of a constitutional republic and more as the dictatorial CEO of a private company. This is understandable, given his long experience in the private sector, but it’s unsustainable. President Trump has to better understand not just the separation of powers but also the constitutional and legal obligations of governance, or the turmoil surrounding Comey’s termination will be but the first of a series of controversies that could well shake his presidency to its foundation.
READ MORE:
Jim Comey Backs Up Trump’s Story, But It’s Not All Good News for Trump
Anonymous No More: Comey’s Under-Oath Discussion Will Be Refreshing
— David French is a senior writer for National Review, a senior fellow at the National Review Institute, and an attorney.