Then-FBI Director James B. Comey being sworn in prior to testifying before the Senate Judiciary Committee in May. (Jim Watson/AFP via Getty Images)
Former FBI director James B. Comey’s testimony in about an hour will begin the process of discovering whether President Trump and any of his aides stepped over the line, either committing a crime in obstructing justice or abusing their power in such a way as to raise a solid basis for impeachment. The two — criminal prosecution and impeachment — do not have the same standard of proof. In a criminal case, one has to prove all the elements of a specific crime; in impeachment, Congress decides what actions constitutes “High Crimes and Misdemeanors.” In a criminal case, one has to set out the facts with precision, a detailed account of what occurred. In impeachment, rules of evidence don’t apply — how people interpreted events, what people thought was going on and hearsay evidence can all be considered.
What’s required or permitted in one setting but not in the other has to get sorted out later. For now, Congress should cast the widest net possible. We should pay attention not just to the particulars but also, to borrow a literary term, the arc of the story. Ben Wittes of the highly respected Lawfare blog writes:
Comey is describing here conduct that a society committed to the rule of law simply cannot accept in a president. We have spent a lot of time on this site over seven years now debating the marginal exertions of presidential power and their capacity for abuse. Should the president have the authority to detain people at Guantanamo? Incinerate suspected terrorists with flying robots? Use robust intelligence authorities directed at overseas non-citizens? These questions are all important, but this document is about a far more important question to the preservation of liberty in a society based on legal norms and rules: the abuse of the core functions of the presidency. It’s about whether we can trust the President—not the President in the abstract, but the particular embodiment of the presidency in the person of Donald J. Trump—to supervise the law enforcement apparatus of the United States in fashion consistent with his oath of office. I challenge anyone to read this document and come away with a confidently affirmative answer to that question.
Comey will likely fill in large portions of the story with more details to amplify his prepared testimony. What about the other four times you spoke with the president? Who did Comey tell at the time in the FBI this was going on? He can also give his impressions and “sense” of what the president was up to and how others interpreted events. How did other FBI agents react when told of the events? Is this normal practice in a White House? Did Comey think Trump’s reference to the “thing we have” indicated Trump thought he had made a deal with Comey — keep his job, but only if loyal? (“Because I have been very loyal to you, very loyal; we had that thing you know,” Trump said in repeating his request to publicly clear him.)
Four things should become clearer as the day goes on.
First, Republicans playing defense for Trump have been asking why Comey didn’t quit or report this conduct. Well, he did report it to Attorney General Jeff Sessions (who reportedly said nothing) so Sessions needs to get hauled in. Moreover, what Comey describes is a not-very-subtle, intensifying effort to get him into a “patronage” position as he put it. No single act is a gotcha moment, but viewed in their totality a damning picture emerges. Look for Comey to present an effective narrative tying all the bits and pieces together.
Some events in isolation — asking to verify he was not personally under investigation don’t immediately seem unreasonable. However in context, the request sound different. Matthew Miller, a former Justice Department spokesman, explain that “the form and the repeated nature of the requests are what make it so inappropriate. It should’ve gone through the White House Counsel’s office to DOJ, and it shouldn’t have been tied to loyalty.” He adds, “While the president might not have been personally under investigation at the time Comey gave him that assurance, the organization he headed was under investigation. Whenever DOJ investigates any organization – whether it be a drug cartel, a bank, or a campaign – you look at the wrongdoing where you see it, and try to work your way as high up the organization as you can. So whether he was personally under investigation at that time is a bit of a red herring.” Seen in that light the request seems more like an effort to preemptively clear Trump of wrongdoing.
Second, there has been much talk about “intent” as an element of obstruction (in the criminal context.) A powerful indicator of corrupt intent is the number of entreaties to Comey and to others to get the FBI away from Michael Flynn. There was a persistent, energetic effort to press for this desired outcome. At times we see some consciousness of wrongdoing, as when Trump cleared the room to talk to Comey, even chasing out Vice President Pence and Jared Kushner. In this regard coming up with a pretextual reason for firing Comey also suggests a nefarious motive. Working with Rep. Devin Nunes (R-Calif.) to cook up a phony story about bugging Trump Tower to divert the investigation should also be seen in that light.
Third, there’s a lot of questions as to whether Trump has made a serious miscalculation in his choice of counsel. Trump’s longtime lawyer, Marc Kasowitz, played a cheesy PR game. He gave a statement claiming Comey’s prepared testimony amounts to exoneration (!). This off-key and clumsy show of bravado won’t influence the real decision-makers who are unspinnable (e.g., Robert Mueller, a grand jury). To the extent Kasowitz doesn’t realize the incriminating pattern emerging he is in over his head and not giving his client adequate representation. Prestigious lawyers’ refusal to represent Trump may prove quite damaging in the long-run.
Finally, we will look to see if Trump really does tweet along the way. Since this is quickly becoming about a pattern of conduct that may amount to obstruction of justice, his remarks could be seen as part of that ongoing effort. Tweets in this context can take on the air of intimidation — directed either at Comey or others who might testify. (“He’ll be sorry he said that,” can sound rather ominous coming from the head of the executive branch.) One thing we know about Trump, he tends to make his problems more severe than they would if he was capable of exercising self-control.