At last, at least for your humble correspondent, this week’s big hearing brought clarity. I now believe President Donald Trump fired Federal Bureau of Investigation director James Comey because he believes Comey intentionally misled the public into believing Trump was under investigation by the FBI. There is enough support for this theory that, had the president been forthright in explaining it when he dismissed Comey on May 9, there might have been considerably less uproar. Instead, Trump dissembled, as he seems hardwired to do. He thus bought himself a debilitating special-counsel investigation, despite its being increasingly patent that there is no crime to investigate.
March 20 was the big day. Understanding why requires us to go back several weeks, to January 6, the day Trump and Comey first met.
It was also the day the FBI, in conjunction with the National Security Agency and the Central Intelligence Agency, issued a report called “Assessing Russian Activities and Intentions in Recent US Elections.” The report was based on intelligence that had been gathered over several months. But it made clear to the public that the FBI was continuing to investigate. As the agencies put it, “new information continues to emerge, providing increased insight into Russian activities.” Thereafter, the continuing investigation was widely covered in the media, often on the strength of unlawful leaks of classified information.
The agencies’ report was the reason for Trump’s introduction to Comey that day, at Trump Tower in New York City. The Bureau’s then-director, accompanied by other intelligence-agency bosses, was there to brief the then-president-elect.
In written testimony that Comey submitted this week to the Senate Intelligence Committee, he recounts his concern that the incoming president might form the misimpression that “the FBI was conducting a counter-intelligence investigation of his personal conduct.” Thus, after discussing the matter with his FBI “leadership team,” Comey came to the meeting “prepared to assure President-Elect Trump that we were not investigating him personally.” He met one-on-one with Trump to deliver part of the briefing. Though the president-elect did not ask, Comey volunteered the “assurance” that Trump was not being investigated.
Three weeks later, on January 27, Trump, now sworn in as president, hosted Comey at a one-on-one dinner in the White House. Yet again, the then–FBI director assured Trump that he was not under investigation.
In light of what would come later, the context of this second assurance is striking. Trump explained that he was considering ordering Comey to investigate lurid claims made in a dossier about Trump and prepared by former British spy Christopher Steele. The president said he wanted the claims examined “to prove it didn’t happen.” That is, far from curtailing the Russia investigation, Trump was calling for additional FBI focus on Russia, where Steele alleged these salacious activities had occurred.
Comey discouraged the idea. As the former director recounted in his written testimony, he advised the president against taking steps that could create a misleading public “narrative” — in this instance, a narrative that the FBI was “investigating him personally, which we weren’t.”
With this as background, let us turn to then-director Comey’s March 20 testimony before the House Intelligence Committee.
In his opening statement, he made this startling disclosure (my italics):
I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.
In presaging this revelation, Comey noted that it was against the “practice” of the FBI “to confirm the existence of ongoing investigations, especially those investigations that involve classified matters.” As we noted at the top, though, it had already been publicly confirmed in the intelligence agencies’ report, and it was already publicly known through media reporting, that the FBI was investigating the Russian government’s efforts to interfere in the 2016 presidential election. Consequently, the only apparent purpose of Comey’s irregular disclosure was to proclaim that the Bureau was probing links between the Trump campaign and the Putin regime — in particular, any “coordination” between the campaign and Russia’s meddling in the 2016 election.
And note Comey’s reference to the FBI’s “counterintelligence mission.” Given that it is not the purpose of that mission to investigate crimes, and that it is in fact improper to use counterintelligence authorities with the intention of building criminal cases, why would the FBI director invoke an “assessment of whether any crimes were committed”?
It had only been a few weeks since Comey cautioned Trump to avoid creating misleading narratives. Yet it was inevitable that the then-director’s explosive disclosure would fuel the narrative that Trump — who, as NBC News’s Lester Holt pointed out, was the “centerpiece of the Trump campaign” — had ties to Russia that were worthy of FBI scrutiny. In addition, Comey’s assertions invigorated the narrative that Trump had colluded with Putin to manipulate the American electoral process.
Comey’s testimony seemed, for example, to validate an explosive New York Times report (February 14) headlined “Trump campaign aides had repeated contact with Russian intelligence” — a report that Comey now describes as “almost entirely wrong.” Indeed, as our Dan McLaughlin notes, the Times reported on the March 20 bombshell under the headline, “F.B.I. Is Investigating Trump’s Russia Ties, Comey Confirms.” Even as Comey was giving his testimony, Neera Tanden, president of the left-leaning Center for American Progress, tweeted (next to her “Resist” avatar), “The FBI is investigating a sitting President. Been a long time since that happened.” As Dan shows with numerous cognate examples, Comey’s announcement was understandably and predictably exploited by mainstream media outlets, which blared that Trump himself was under FBI investigation.
On March 30, Trump called Comey to complain about the ‘cloud’ over his presidency. Naturally, it had intensified since the congressional hearing, impairing his ability to govern.
In this week’s written testimony, Comey further related that he “briefed the leadership of Congress on exactly which individuals we were investigating and . . . told those Congressional leaders that we were not personally investigating President Trump” (emphasis added). This was done, of course, out of the public earshot. And — mirabile dictu! — it seems to be the only detail the intelligence community and plugged-in Democrats have resisted leaking to the media.
At Thursday’s hearing, Senator Tom Cotton (R., Ark.) noted that as late as May 18, his colleague Senator Dianne Feinstein (D., Cal.) conceded to CNN that she’d seen no evidence that the Trump campaign colluded with Russia. As the ranking member on two relevant committees, Feinstein has had access to intelligence unavailable to Cotton and other more junior senators. Comey, furthermore, has acknowledged that as long as he was at the FBI (i.e., until his May 9 dismissal), there was no investigation focused on President Trump.
To summarize, then, despite over a year of investigation, no evidence of collusion between Trump’s circle and the Putin regime has been uncovered — and, clearly, none had been uncovered by March 20. Moreover, whatever threads the FBI has been following are sufficiently remote from the president himself that Trump was never under investigation — a fact that, by March 20, was well known to the intelligence agencies, who made it known to Congress.
Nevertheless, a decision was made — Comey stresses, with Justice Department approval — to have Comey announce to the nation on March 20 not only that there was an ongoing FBI counterintelligence investigation but that it was focused on the Trump campaign’s suspected collusion with Russia, and that criminal prosecutions were a possibility. Since the existence of the counterintelligence investigation was well known, Trump had to wonder: What point could there have been in that announcement other than to cast suspicion on the Trump campaign — and, inexorably, on Trump himself?
We are not told who at the “Trump” Justice Department authorized the then-director to make this announcement. I scare-quote the president’s name advisedly. On March 20, the only Trump appointee yet installed at the Justice Department was attorney general Jeff Sessions. He was already recused from Russia-related matters and therefore presumably not consulted on Comey’s planned disclosure.
Ten days later, on March 30, Trump called Comey to complain about the “cloud” over his presidency. Naturally, it had intensified since the congressional hearing, impairing his ability to govern. On this point, Comey’s testimony addresses the president’s desire to know what the FBI could help him do to “lift the cloud.” Left unaddressed, however, is what had been done at the March 20 hearing to intensify the cloud. When, in their March 30 conversation, Comey again confirmed that Trump was not personally under investigation, the president insisted — quite understandably — “We have to get that fact out.”
In his written testimony, Comey observes that he and Justice Department leaders (again, not Trump appointees) were “reluctant to make public statements that we did not have an open case on President Trump.” Remarkably, the rationale offered for this reluctance was fear of the uproar that would be caused if the record eventually had to be corrected — meaning: The speculative possibility that some evidence implicating Trump in Russia collusion might someday come to light, notwithstanding that (a) in all the months and months of investigating, no signs of such evidence had surfaced, and (b) as Comey explained in answering hearing questions from Senator Marco Rubio (R. Fla.), Trump had encouraged the FBI to do the Russia investigation and let it all come out.
In any event, why was this the FBI director’s call to make, rather than the president’s? If Trump is so confident about his lack of culpability in Russia’s cyberespionage that he was willing to run Comey’s “duty to correct” risk, what would have been the downside of informing the public that Trump was not under investigation — especially when any sensible person, on hearing what Comey did disclose, would assume that Trump was under investigation?
I don’t see how Trump could have handled Comey’s dismissal worse — no warning, conflicting explanations, talking him down in a meeting with Russian diplomats, savaging his reputation.
All that said, and as the former director learned painfully during the Clinton caper, the FBI and Justice Department should not make public statements about investigations unless and until they are prepared to file charges formally in court, where people get to see the evidence and have a chance to defend themselves. What possible good reason was there to alert the public that the Trump campaign was under investigation? Inevitably, that would induce the media to tell the world — incessantly — that Trump himself was under investigation.
Comey maintains, as he did in the July 2016 Clinton-e-mails press conference, that there is a “public interest” exception to the Justice Department rule against commenting on investigations. But public interest is the very reason for the no-comment rule. The point is to avoid smearing people who have not been charged with a crime. Such a smear happens only if the public is interested in the case.
More fundamentally, what is the “public interest” in misleading the public? If you know that what you are about to say is going to lead people to believe the president of the United States is under investigation (as it did), and you know for a fact that the president of the United States is not under investigation (as Comey did), why make the statement? And if it was important enough to tell Congress that Trump was not under investigation so that Congress would not be misled, what conceivable reason is there not to tell the public — especially when you must know that withholding this critical detail will make it much more difficult for the president to deal with foreign leaders and marshal political support for his domestic agenda?
The fact that President Trump was not under investigation did not get out until Trump finally put it out himself. That was in the May 9 letter that informed FBI director Comey that he was removed from office: “I greatly appreciate you informing me, on three separate occasions, that I am not under investigation.”
Do you suppose the desperation to tell that to the world, the exasperation over Comey’s refusal to tell it to the world, just might have been at the front of the president’s mind?