Former FBI Director James Comey will tell the Senate Intelligence Committee on Thursday that President Donald Trump asked him for his loyalty during a dinner in January and requested in an Oval Office meeting in February that he drop the FBI’s investigation into former national security adviser Michael Flynn.
Comey’s prepared remarks were posted to the Senate’s website on Wednesday, and experts say their implications are significant.
Comey’s prepared testimony is “the most shocking single document compiled about the official conduct of the public duties of any President since the release of the Watergate tapes,” wrote Benjamin Wittes, a close friend of Comey and editor-in-chief of Lawfare. Wittes added that it was difficult to express “just how inappropriate” Trump’s interactions with Comey were, “particularly when they involve an investigation in which the President has such deep and multifaceted personal stakes.”
Preet Bharara, the former US Attorney for the Southern District of New York who was fired by Trump, tweeted that it’s “NEVER OK for a POTUS privately to ask an FBI Director to drop a criminal investigation. Extraordinary, wrong & dumb.”
Bharara was referencing a section of Comey’s remarks in which he detailed a February Oval Office meeting during which Trump said of Flynn: “He is a good guy and has been through a lot. I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy.”
The meeting took place one day after Flynn was forced to resign as national security adviser when it emerged that he had discussed US sanctions with the Russian ambassador during the transition period and then misled Vice President Mike Pence about his contacts.
Such remarks would “confirm that” Trump obstructed justice in the case, said Jens David Ohlin, associate dean at Cornell Law School and an expert on criminal law.
It was “corrupt for Trump to have attempted such a brazen and direct interference with the Flynn investigation,” Ohlin added.
‘Comey’s statement establishes obstruction of justice’
Jeffrey Toobin, a senior CNN legal analyst, tweeted that “Comey’s statement establishes obstruction of justice by Trump. Period.”
Comey’s prepared remarks “absolutely bolster the case for obstruction of justice,” said Claire Finkelstein, a professor at the University of Pennsylvania Law School.
The former FBI director’s testimony suggests Trump was implicitly attempting to allow Comey to keep his job on the condition that Comey provided loyalty to him, Finkelstein said.
“Requesting on multiple occasions that Comey do things like drop the Flynn probe and publicly announce Trump is not under investigation is one thing,” Finkelstein added,” but “implicitly suggesting he may not keep his job and then firing him when he doesn’t absolve you personally in a dispassionate and objective investigation — that looks a lot like obstruction of justice.”
Obstruction of justice is broadly defined: It involves any conduct in which a person wilfully interferes with the administration of justice. But to charge Trump with obstructing justice based on Comey’s testimony would not be an easy case, said Robert Deitz, a former senior counselor to the CIA director and former general counsel at the National Security Agency.
That is primarily because it is unclear whether Trump was ordering Comey to end the FBI’s investigation into Flynn or asking Comey if he would consider dropping the case because Flynn was “a good guy.”
Ohlin said Comey did not seem to interpret the request to end the Flynn investigation as a request to shut down the entire Russia probe. “That’s a very generous interpretation on Comey’s part — and Trump should be counting his lucky stars for that,” she said.
But Trump’s conversation with Comey was part of a broader pattern that could more easily open him up to charges of obstruction of justice, experts say, beginning with Trump’s request for Comey to pledge his loyalty and assurance that he wasn’t under FBI investigation and ending when he fired Comey.
“Historically, obstruction-of-justice articles of impeachment do elaborate a pattern of conduct,” the legal experts at Lawfare wrote. “The first article of impeachment against Richard Nixon, for instance, included making false statements to investigators, withholding evidence, counseling witnesses to lie or give misleading testimony, and ‘interfering or endeavouring to interfere with the conduct of investigations by the Department of Justice of the United States and the Federal Bureau of Investigation.'”
Bob Bauer, a White House counsel under President Barack Obama, also questioned whether Trump’s “demands for reassurance, by their very repetitiveness,” implied that Trump “was bringing pressure on the person in charge of a criminal investigation to limit it.” In doing so, Bauer wrote recently, Trump was obstructing justice.
Richard Painter, a professor at the University of Minnesota who was President George W. Bush’s chief ethics lawyer from 2005 to 2007, told Business Insider last month that “obstruction of justice would be occurring if there were an express or implied threat to fire” Comey if he didn’t drop the Russia probe.
“That’s obstruction of justice. The president fired the FBI director,” Painter said. “It’s all evidence of a major scandal and abuse of power.”
‘Another devastating blow’
The written testimony may be somewhat of a relief for the president’s allies, because Comey indicated he did convey to Trump that he was not personally under investigation and that he did not feel the FBI’s investigation was being directly obstructed, said Keith Whittington, a professor of politics and expert on presidential impeachment at Princeton University.
But on the other hand, “Trump clearly engaged in grossly inappropriate behaviour, which can probably only partly be attributed to his inexperience in government,” Whittington said.
He added that Comey’s remarks appear to highlight Trump’s lack of understanding of the gravity of his responsibilities.
“It is another devastating blow to the president’s stature and credibility,” he said.
When it comes to examining whether Trump sought to obstruct the FBI’s investigation into Russia’s election interference and the Trump campaign’s role in it, the president’s pattern of behaviour and past statements about the probe could likely come back to haunt him. (Trump’s comments about barring Muslims from the US were similarly considered when federal courts were debating the intent behind his two controversial executive orders on immigration.)
“What is most remarkable is that the president has willingly created this self-portrait,” Bauer wrote. “As scandals in the making go, this one may become famous for featuring the president as the principal witness against himself: he seems committed to uncovering any cover-up.”
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