- James Comey’s testimony pulled few punches at President Donald Trump.
- Trump’s defenders, though took solace in a testimony that went better than they might have expected.
- Legal experts say the testimony was still damaging to Trump and could point to obstruction of justice.
Former FBI Director James Comey’s blockbuster Thursday hearing provided several bruising moments for President Donald Trump.
Comey, who Trump fired in early May, said he believed he was fired “because of the Russia investigation,” amplifying calls that Trump was obstructing justice. He said he took Trump’s comments that he “hoped” for the ousted FBI director to “let go” of the investigation into former national security adviser Michael Flynn “as a direction.”
Comey said he kept memos on his conversations with the president — a move he said he did not do with two prior presidents or other top Justice Department officials — because he “was honestly concerned that he might lie about the nature of our meeting.”
And he said that, in firing him from the top FBI post, Trump and his administration tried to “defame” him by spreading “lies, plain and simple” after his departure, citing Trump’s “shifting explanations,” which he said included Trump going on TV and “saying that he actually fired me because of the Russia investigation.”
Yet among all that, Republicans and supporters of the president were still able to walk away from Thursday’s hearing with surprising optimism. Trump’s allies suggested the testimony didn’t provide a proverbial smoking gun, and they emerged with options to try to shift the conversation.
Comey, for one, suggested that the Flynn investigation, if dropped, likely would not alter the course of the FBI’s larger probe into Russia’s election meddling and the Trump campaign’s role in it. Trump’s supporters also took grievance with Comey’s stunning admission that he instructed a good friend — a Columbia University law professor — to provide the press with information on his memos because he felt the investigation may have reached the point at which a special counsel needed to be appointed.
Perhaps looming largest, though, were his comments regarding former Attorney General Loretta Lynch and the investigation into Democratic presidential nominee Hillary Clinton’s use of a private email server. Comey said Lynch asked him to refer to the email probe as a “matter” instead of an “investigation,” which he said “gave him a queasy feeling.” It echoed language the Clinton campaign itself was using.
“That was one of the bricks in the load that led me to conclude I have to step away from the department if we’re to close this case credibly,” Comey said, adding that consideration of appointing a special counsel to oversee the matter was a valid suggestion, but one that would have been unfair. He reiterated that the facts of the case did not warrant charges pressed against the former secretary of state.
Fox News host Eric Bolling said on “The Specialists” — making a point that many in the Trump realm highlighted in similar ways — Comey’s comments on Lynch proved the real “collusion.”
“There’s your collusion — not between [Trump] and the Russians, but between” President Barack Obama, Lynch, and Comey, he said.
Delivering a statement following Comey’s testimony, Trump’s personal attorney Marc Kasowitz ripped the former FBI director for ordering the leaked memos. He even suggested that Comey lied under oath, disputing the claim that Trump hinted that Comey should drop the Flynn investigation. Of course, he also noted that Comey “finally confirmed publicly” what Trump has insisted: that “the president was not under investigation as part of any probe into Russian interference.”
Trump personally did not appear to believe Thursday was worth an all-out fight. Asked about the testimony, Trump “declined to comment, only smiling through pursed lips,” according to a pool reporter.
“There was no knockout punch,” Matt Mackowiak, a Republican strategist and president of the Potomac Strategy Group, told Business Insider in an email. “Trump will benefit from admission that he was not under investigation and Comey’s revelation that he leaked his own memo to require a special counsel be appointed. Trump will be harmed [by] inappropriate comments about Flynn made on the Oval Office, which I do not believe rose to the level of illegality.”
“Both sides fight on,” he continued.
Matthew Whitaker, a former US attorney, executive director of the conservative Foundation for Accountability and Civic Trust, and 2014 Republican primary candidate in Iowa’s Senate race, told Business Insider in an email that Comey’s testimony made it “clear” that “there is absolutely no criminal case to be made against President Trump for obstruction of justice.”
“Comey’s testimony simply does not come close to proving an intent to obstruct justice, let alone facts to support a criminal case,” he said. “If there is one thing we learned from the Hillary Clinton email server investigation, it is that the proof needed for ‘intent’ at Comey’s FBI was set very high.”
Whitaker, like many on the right, found the biggest news to be Comey’s revelation about Lynch.
“I found it very disturbing to learn that former Attorney General Loretta Lynch directed then FBI Director Comey to publicly mischaracterize the probe as just a simple ‘matter,'” he said. “It just reaffirmed my belief that a special prosecutor should have been assigned from day one to handle that case.”
Jed Shugerman, a Fordham law professor, told Business Insider in an email that Republicans’ claims in the aftermath of the Comey hearing “are not good faith arguments” based on the testimony. He called many of them “talking points” that were “pre-circulated” beforehand “based on a strategy of isolating the most favourable facts and events, and ignoring other events and the big picture.”
But, he said, the “pro-impeachment side does not have a slam dunk today, either.”
“No event in Comey’s written testimony — and not even all of those conversations together — constitutes a clear case of obstruction,” he said. “The obstruction case is based on the act of firing Comey after all of these events and interventions. Comey’s testimony is very helpful for establishing intent to obstruct and impede, but Trump himself already offered enough evidence of intent when he connected Comey’s firing with his purpose to impede the Russia investigation.”
Shugerman added that Trump defenders’ argument that Comey confirmed Trump was not under investigation — prior to Comey’s dismissal — “is meaningless.”
“It’s a bit like a thief telling the prosecutor he was not under investigation for murder, and it turns out he was not under investigation for murder,” he said. “It’s the confirmation of an irrelevant fact, and it’s noise to sound like they are confirming Trump’s story.”
For Shugerman, the biggest takeaway from the hearing was how “serious” Republicans on the committee were in “asking tough, but fair questions” and “respectfully giving Comey a full chance to answer.”
“By asking good questions, they gave Comey a chance to clarify the context in very damaging ways,” he said, noting exchanges that involved how Comey felt about Trump’s asking if the FBI director could “let go” of the Flynn investigation, and about the exchange Comey and Trump had involving FBI Deputy Director Andrew McCabe.
“The big picture here is that the Republicans are investigating seriously, not obstructing,” he said. “None of them were willing to take on the role of attack dog, unlike the famous example of Arlen Specter in the Clarence Thomas hearings, or Trey Gowdy in the Benghazi hearings, or in the 9/11 Commission. A pro-Trump PAC sent a signal of a strategy to tear at [Comey’s] credibility with ads, but none of the Republican senators followed. That’s very significant.”
Shugerman acknowledged that the Lynch revelation is now “a real subject to investigate further,” calling the pressuring of Comey to use “matter” instead of “investigation” a “huge mistake” and “a partisan intrusion” on Lynch’s part.
It “probably changed history by making Comey more sceptical about her and the Clintons’ role,” he said. “I inferred that it had an effect on Comey that may have changed how he handled the investigation later. She will face very tough questions. And it validates the follow-up questions on the Clinton campaign on their handling the email.”
“We will hear a lot about this,” he continued. “It does not rise to obstruction, because it was wording/semantic, not the substance of investigation, but Comey was right to be troubled. Lynch and [President] Bill Clinton should be called to testify and explain their behaviour. What’s obstruction for the goose is obstruction for the gander.”
Andrew Wright, a law professor at Savannah Law School, told Business Insider in an email that Comey’s direction to leak the memos, while not criminal or “privileged,” as Trump’s lawyer argued, does appear “retaliatory” and “gives fodder to Comey’s critics.”
But his main takeaways from the hearing did not involve some of the popular talking points on the right. He focused on how Comey called Trump and his staff “liars,” saying that Comey “thought so little of President-Elect Trump’s first briefing reaction he started documenting everything” and pointing out that Comey “gave a first person account of an obstruction narrative.”
He mentioned Comey’s referencing of Trump “dangling” his job before him, asking for his loyalty, suggesting he drop the Flynn investigation, and firing him for reasons related to the Russia investigation. And he said “we can infer” special counsel Robert Mueller “is investigating Donald Trump for obstruction of justice” based on Comey’s testimony.
“It was not a tie or pure Rorschach test, it was a very damaging day for President Trump,” he said. “There were some kernels for White House defenders that will help GOP talking points. Also, there were no ‘the president ordered the Code Red’ moment. But the obstruction narrative was enhanced.”
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