James Comey’s testimony to the Senate Intelligence Committee lived up to its billing: In a blockbuster hearing, the former FBI director accused President Donald Trump of telling “lies” about the reason for his abrupt firing, and detailed what he viewed as the president’s attempts to shut down a federal investigation.
Comey described how Trump had pulled him aside in the Oval Office and expressed his “hope” that the inquiry into Michael Flynn, the former national security adviser, would go away. And he alleged that the president asked in a phone call if there were anything he could do to “lift this cloud”—meaning the Russia investigation—that has done deep political damage in his first few months on the job.
Comey also confirmed that he had told the president he was not “personally” under investigation, but suggested that special counsel Robert Mueller might be looking into whether Trump’s private comments amounted to obstruction of justice.
Trump denies doing anything wrong—“The president is not a liar,” spokeswoman Sarah Huckabee Sanders said Thursday—and his lawyer punched right back, accusing Comey of making “unauthorized disclosures to the press” by instructing a friend to share his notes of his encounters with the president with a reporter.
It’s one man’s word against another, with nothing less than the presidency of the United States potentially at stake. To sift through the questions raised by Comey’s dramatic testimony, we asked a bipartisan group of legal experts to analyze his remarks and tell us what they mean for the president’s fortunes and the FBI’s ongoing investigation. Here’s what they said:
The case against Trump seems ‘considerably stronger now’
Laurence H. Tribe is a professor of constitutional law at Harvard.
Comey was totally convincing and completely fair both in what he said and in what he refused to say. I can’t imagine anyone doubting a word of what he said.
Comey’s flat statement that the president had lied to the nation by saying he hadn’t asked Comey to call off the dogs on Flynn and had also lied both to Comey and to the nation about why he was fired (and had defamed both Comey and the FBI in lying as he did) was noteworthy, as was his conclusion that he was fired for his failure to do the president’s bidding with respect to the Russia investigation. In addition, Comey’s compelling explanation that he took Trump’s statement that he “hoped” Comey could go easy on Flynn as a direct order even though not stated in so many words adds considerably to Comey’s written description of that encounter.
All in all, the case for finding that the president had endeavored to shut down or at least cool off an ongoing FBI investigation—and had manifested his realization that what he was seeking was improper, if not downright corrupt, by insisting that everyone else (including Sessions and Kushner) leave the room so he and Comey could be alone—seems to me considerably stronger now than it did even after reading the remarkable prepared statement by Comey, and of course much stronger than it was before that statement was released.
Furthermore, Comey’s suggestion, under oath, that Mueller is now investigating Trump on charges of obstruction of justice is a bombshell that I’ve not seen sufficiently emphasized in the twitterverse or the blogosphere as of this moment.
Everyone seems to be focused now on criminal obstruction of justice by the president, but the underlying matter of possible collusion between Russia and a campaign headed by now-President Trump to subvert our sovereignty and democracy—a subject Comey said he could not speak about in an open session—is no less explosive, as is the possible charge of potentially impeachable (even if not criminal in the statutory sense) abuse of presidential power in the form of lying about why the FBI director was fired and defaming and thereby injuring the FBI as an institution vital to our national security. Of a piece might be Trump’s lying about President Barack Obama’s supposed wiretapping of Trump in his tower, but nobody asked about that abuse of power.
All those possible charges are more plausible now than they were before Comey was asked to testify, and each of them is potentially devastating to the Trump presidency.
‘Nothing Comey said … was a smoking gun’
Renato Mariotti is a former federal prosecutor who handled many obstruction cases. He is now a partner at Thompson Coburn LLP.
Ultimately an obstruction case will come down to the president’s intent, and Comey’s testimony Thursday added important details that will undoubtedly be examined by Mueller and his team. That said, nothing Comey said Thursday was a “smoking gun” that turned a case based on inferences into a case with strong direct evidence of intent. A prudent prosecutor would continue to gather evidence before making any determination about obstruction.
Comey’s testimony ‘confirms the intent required to prove obstruction’ and ‘echoes what led to articles of impeachment against President Nixon’
Jill Wine-Banks is a former assistant Watergate special prosecutor, former general counsel of the U.S. Army and former member of the Department of Defense Judicial Proceedings Panel Subcommittee on Sexual Assault in the Military.
Director Comey’s testimony changes what the public knows. It is the first public testimony under oath and it confirms all the press reports of acts by President Trump that appeared to be part of a cover-up. Now we know from Comey’s own voice that those reports are true.
Comey confirmed that President Trump expressed his “hope” that he’d drop the FBI’s investigation into former National Security Adviser Michael Flynn. Comey admitted he interpreted the Trump’s words to mean that the president was asking him to stop the ongoing investigation. That meets the legal definition of obstruction of justice and echoes what led to articles of impeachment against President Nixon.
We know from President Trump’s admission to Lester Holt on national television—and from a report of what the president told the Russians he met with in the Oval Office at the request of Putin—that Comey’s not complying was the reason Comey was fired, one more part of Trump’s obstruction of the FBI’s work. Although Comey did not do as Trump wanted, he felt the force and gravity of Trump’s words, especially when hearing them alone in the Oval Office with the president of the United States.
Today’s testimony also confirms the intent required to prove obstruction. Comey affirmed that Trump asked Attorney General Sessions and Vice President Pence to leave the room before asking Comey to find a way to let go of the Flynn investigation. Why would he ask them to leave if he wasn’t about to do something illegal? Trump’s action suggests intent. And, the president cannot claim ignorance of the law or that he didn’t know it was wrong to have this conversation; he demonstrated his knowledge when he made a major campaign issue out of former President Bill Clinton’s getting on Attorney General Lynch’s plane during the FBI’s email investigation of candidate Hillary Clinton. In that instance, there was not even a shred of evidence that the two talked about the investigation; in Trump’s private meetings with Comey, we now have sworn testimony that there was.
Comey’s testimony—combined with his reputation for integrity, his training in recording conversations by a contemporaneous memo and other known facts—surpasses the “reasonable doubt” standard needed for a guilty verdict on obstruction of justice. It makes clear that President Trump abused his power and attempted to interfere with the FBI’s investigation of Michael Flynn.
‘The most remarkable thing about Comey’s testimony was its vapidity’
Elizabeth Price Foley is a professor of law at Florida International University.
The most remarkable thing about Comey’s testimony was its vapidity. Other than thoroughly exploring the legally inconsequential issue of whether Trump asked Comey for his “loyal honesty” or “his honest loyalty,” the hearing yielded nothing.
As a constitutional matter, the FBI director—like the attorney general, CIA director, NSA director and numerous other investigative and prosecutorial executive branch officers—serves at the pleasure of the president. There is nothing illegal about a president meeting one-on-one with such officers, calling them privately or asking them for loyalty. The president can meet with them if he wants and fire them when he wants—for any reason.
It’s significant that neither Comey nor any members of the Senate Intelligence Committee asserted that Trump’s behavior constituted an obstruction of justice. There is a reason for their silence on this issue: There is zero evidence that Trump’s casual, one-time statement to Comey—about Flynn being a “good guy” and that he hoped the FBI would let the investigation go—constituted an obstruction of justice. If it did, every criminal defense attorney in the country would be guilty of obstruction. No pending judicial proceeding was impeded or threatened, which is what the obstruction statutes require. And every court in the country that has been asked has ruled that an FBI investigation is not a “pending proceeding” within the meaning of the obstruction statutes.
At most, Comey’s testimony reflects a culture clash between a consummate Washington insider and an outsider president who didn’t abide by norms of D.C. political etiquette. Comey was clearly uncomfortable with Trump’s familiar and frank manner, and preferred to be insulated from direct communication with, or political accountability to, the president. But Comey’s discomfort does not make Trump’s behavior legally or ethically inappropriate, much less criminal. We should stop pretending that it does.
‘Comey’s testimony stands to change the way the public views the myriad, ongoing investigations’
John Culhane is professor of law and co-director of the Family Health Law and Policy Institute at Widener Law Delaware.
Although it’s still likely that none of what happened Thursday will matter to the current majority in Congress, I’m no longer as certain of that fact as I was a few hours ago. Comey’s testimony stands to change the way the public views the myriad, ongoing investigations of Trump and those in his orbit.
It’s true that Comey’s prepared statement and his answers to questions support Trump’s claims that he himself is not under investigation for colluding with the Russians, and might give him some breathing room on that score. In the other direction, though, Comey all but shouted, “The president obstructed justice!” when he said, repeatedly, that he interpreted as a “directive” Trump’s “hope” that the Flynn investigation would be dropped. Though some Republican senators suggested that expressing a “hope” is not an explicit order, California Sen. Kamala Harris cleverly compared the situation to an armed robber who, with a gun to your head, says “I hope you’ll give me your money.”
It was one of a few exchanges Thursday that could continue to gain currency. In explaining why he’d memorialized every conversation with Trump in text—a practice he’d not followed for either of the other two presidents for whom he’d worked—Comey cited his concern that Trump “might lie about” their meetings. And in defending both himself and the FBI against Trump’s statements that the organization was “in disarray,” Comey bluntly stated: “Those were lies, pure and simple.” If enough people hear and believe Comey’s characterization, we could see a further erosion in Trump’s already historically low level of public support. For Trump’s congressional allies, at some point, the cost of continuing to defend him might be too great. Then impeachment, or forced resignation, could follow.
‘Trump’s administration will be seriously weakened’
Daniel Farber is a professor of law at the University of California, Berkeley.
We will be seeing a lot of debate about whether Comey’s testimony proved that Trump obstructed justice. That’s the wrong question to ask, for a number of reasons. Impeachment will not turn on complex doctrinal issues in criminal law. It’s a political decision, one that would require at least a dozen GOP members of both houses of Congress to vote against Trump. In any event, there were no new bombshells at the hearing. But the hearing did establish that the investigation into the “Russian connection” is serious and credible, not a witch hunt or a partisan vendetta. Comey’s demeanor and the generally respectful attitude of even GOP senators were convincing on that score. The fact that the response to the hearing has come from Trump’s lawyer reinforces the message that we’re talking about issues that go beyond politics. All this makes it much harder to dismiss the investigation, let alone derail it.
Even if no case is ever brought against Trump himself, the ongoing investigations will have serious consequences. Flynn seems to be in very serious danger of indictment. There were also hints in Comey’s testimony that Sessions may have something to worry about, and a variety of campaign aides are likely to be on the hot seat. Moreover, an investigation of this nature is likely to bring other kinds of criminal conduct to light. So regardless of whether Trump himself is in direct jeopardy—and he may be—Thursday’s testimony made it clear that none of this will end soon, and that Trump’s administration will be seriously weakened.
‘Thursday’s testimony was dramatic theater’ showing Trump’s ‘disregard’ for norms
Ilya Somin is professor of Law at George Mason University, and author of Democracy and Political Ignorance: Why Smaller Government is Smarter.
Thursday’s testimony was dramatic theater, but it is not clear that we learned much that was new. Comey’s statements indicate that Trump pressured him to drop the investigation into disgraced former Flynn’s ties to Russia, and that Trump has a brazen disregard for political and legal norms. We already knew the former from media reports and Comey’s written testimony, and the latter has long been evident to anyone paying attention to the president’s words and deeds. We did learn that Comey leaked notes of his discussions with Trump in the hope it would “prompt the appointment of a special counsel,” which is new information, but not surprising; the big issue at stake is not Comey’s motivation, but Trump’s actions.
Experts differ over the issue of whether the actions described by Comey qualify as obstruction of justice. But even if Trump’s actions were technically legal, it is important to remember that our constitutional system depends on unwritten norms as well as formal legal rules. The norm breached by Trump—that FBI investigations must be independent and nonpartisan—serves the vital function of making it harder for presidents to use the Bureau to persecute their enemies and shield wrongdoing by their allies.
The deterioration of valuable political norms did not begin with Trump, of course, and both parties deserve blame for this dangerous trend, which is in part a product of growing partisan bias that incentivizes both sides to overlook the misdeeds of their respective leaders. But Trump is making the situation even worse than before.
‘We now have what we did not have before: reliable public sworn testimony’
David Cole is the national legal director of the ACLU and the Honorable George J. Mitchell professor in law and public policy at the Georgetown University Law Center.
It should change things. Comey’s testimony provided what has thus far been lacking with respect to this controversy: direct public testimony, under oath. Comey testified at length and in detail about Trump’s efforts to end a criminal investigation of Flynn, Trump’s former national security adviser. The testimony was frank, direct and, at least to this viewer, highly credible. So we now have what we did not have before: reliable public sworn testimony that the president of the United States actively sought to halt a criminal investigation into his own adviser’s potential ties to Russia. In addition, it is undisputed on the public record that when Comey declined to end the investigation Trump fired him, that the Trump administration initially lied about the reasons for the firing and that Trump later admitted that he fired Comey because of the Russia investigation. These are serious allegations of grave misconduct.
In one sense, however, the testimony does not seem to have changed one thing: What was perhaps most disturbing was that given these allegations, the response from most of the Republican senators was not to try to get to the bottom of the issue, but to cast aspersions, obfuscate and misdirect. The facts described by Comey warrant the most serious nonpartisan attention. They should concern Americans of all political leanings. They involve the possibility of obstruction of justice, a threat to the rule of law itself, and of collusion with Russia in its attempts to interfere with our democratic process. The workings of the democratic process and the rule of law are foundational values to our republic, and deserve defending whatever one’s political inclinations are. Thus far, the Republicans have not shown an inclination to get to the bottom of this, and that is a sad commentary on the partisan divide that so permeates Washington, and our country.
‘The investigation will continue, with a focus on Trump’s state of mind’
Saikrishna Prakash is a professor of law at the University of Virginia and a senior fellow at the Miller Center.
We learned a couple of new things:
1. The president is a transgressive person, unaware of certain norms and willing to break known conventions. This posed a problem for Comey, who thought it was inappropriate for the president to speak to him about Flynn or ask for his loyalty. But asking for loyalty is what politicians do, including newly minted politicians. And the FBI does not have the legal independence that Comey wishes it had.
2. Loretta Lynch successfully influenced how Comey characterized the Clinton investigation. I suspect that Republicans will want to pursue this further. What other influence did she exert, successfully or otherwise?
3. In his written testimony, Comey referred to Trump’s “request” with respect to Flynn. But in his oral comments he spoke of a “direction” to halt the inquiry into Flynn. This is a significant change in characterization. One is an entreaty, the other a command.
4. Trump desperately wanted the world to know that he was not being investigated. Comey refused to state as much publicly. Perhaps part of the president’s decision to fire Comey had to do with frustration with Comey’s unwillingness to clear the air.
5. Trump never asked Comey to end the Russia investigation. It seems he never even hinted this wish.
6. Comey was deeply distrustful of the president, from the beginning. But his willingness to stay on seems in tension with this distrust.
7. The investigation will continue, with a focus on Trump’s state of mind. Was the discussion regarding Flynn a request or a command? Was his firing of Comey meant to slow down the Russian investigation? Or had he merely become frustrated with Comey’s unwillingness to make public what was known by many in private?
The Senate Intelligence Committee is now looking at obstruction of justice
Carrie Cordero is an attorney in private practice, adjunct professor at Georgetown Law, and former counsel to the assistant attorney general for national security.
In three important ways, former Director Comey’s statement and testimony before the Senate Select Committee on Intelligence provided transparency into the government’s myriad efforts to get to the bottom of Russia’s efforts to influence the United States.
First, it provided yet another opportunity for a former senior national security and law enforcement leader to confirm unequivocally that the Russian government implemented a deliberate and sophisticated plan to disrupt the 2016 election, a point often lost in the politics surrounding the investigations.
Second, the testimony added details to the narrative that has developed over the past several months regarding steps the president may have taken to influence, delay, or derail the overall investigation into Russia’s efforts in the 2016 election, and any related investigations involving individuals affiliated with his campaign, transition team or administration. Specifically, the president’s statements to the former director indicating his desire for the Flynn case to be dropped, as well as the request for “loyalty” in the context of a conversation involving whether the FBI director would continue in his position, stand out as behaviors inconsistent with traditional White House avoidance of doing anything that could be interpreted to interfere in Department of Justice investigations.
Third, the hearing itself was a positive step in the Senate Intelligence Committee’s ongoing bipartisan investigation—an assertion of its own independence and seriousness of purpose. The committee leadership, by inviting Comey to testify soon after his firing by President Trump, seems to be indicating that they are open to inquiring about potential obstruction efforts as part of their broad mandate. In his testimony, Comey made clear that special counsel Robert Mueller is examining obstruction under his purview as a legal and potential criminal matter; the committee’s willingness to provide a forum for Comey to state, under oath, his narrative regarding statements the president made to him indicates that they, operating in the political realm, are willing to uncover facts as they may relate to obstruction. After today’s hearing, the committee will not be able to turn a blind eye to additional testimony it receives revealing any efforts by the White House to frustrate the Russia inquiries.
Senate Republicans put Trump on notice
Josh Blackman is a constitutional law professor at the South Texas College of Law in Houston, an adjunct scholar at the Cato Institute, and the author of Unraveled: Obamacare, Religious Liberty, and Executive Power.
On Thursday, for three riveting hours, the Senate confirmed that it can still perform its constitutional role by conducting a fair and neutral investigation into potential misconduct within the executive branch. Senators on both sides of the aisle asked probing questions about former Comey’s interactions with the president and his administration. More pressingly, their questions drilled down into the specific elements of the crime of obstruction of justice in order to make public what precisely Trump did, and did not, do. In our era of partisan gridlock, these proceedings were refreshingly professional.
Since Trump’s inauguration, alas, the norm has become that the judiciary resolves all manner of political questions. This is not how our separation of powers is structured. Thursday’s hearings serve as a reminder that Congress remains fully able to provide oversight of the executive branch.
President Trump is now on notice that he is subject to scrutiny, even by members of its own party. If dissent on the Republican side of the aisle continues to grow, this administration will be remain under fire.
‘The question of obstruction of justice [is] more acute’
Rick Pildes is a professor of constitutional law at NYU Law.
The most significant development Thursday was Comey’s testimony that he understood Trump to be “directing” him to shut down the criminal investigation into Michael Flynn. In Comey’s written testimony, he reported only the specific language Trump had used, which had the president saying to Comey, “I hope you can see your way clear to letting this go, to letting Flynn go.” In providing Thursday his view of the overall context in which that conversation and others took place, Comey went much further. He made it clear that he believed—and, presumably, felt that anyone in his position would believe—that the president was directing him to shut that investigation down. This conversation and Comey’s perspective on it has to be put together with all the other information, some of which might not be public, before any firm conclusions can be drawn. But for the president to direct the FBI to shut down a criminal investigation into one of the president’s top aides certainly makes the question of obstruction of justice more acute.
Comey also said that the president’s direction to shut down the Flynn investigation was a matter of “investigative interest” that would fall into the bailiwick of the special counsel Mueller. That means that the special counsel should be assumed to be investigating, among other things, whether the crime of obstruction of justice was committed and what role the president’s pressure on Comey to shut down that investigation plays in coming to any judgment about that.
The hearing ‘sent a serious warning to the White House’
Mark Zaid is a national security attorney based in Washington D.C.
Comey’s sworn testimony Thursday placed a higher burden on the president with respect to the perceived integrity of who is telling the truth regarding their nine encounters, and one that the president and his surrogates should carefully consider. The fact that multiple senators in a welcome bipartisan fashion praised Comey’s honesty and reputation sent a serious warning to the White House. Although some are already claiming that Comey’s remarks vindicate Trump from an obstruction charge, it did no such thing. It merely placed into context Comey’s perception of highly unusual conversations that still can be relied upon to pursue criminal charges, if warranted.
‘The testimony is about Comey’s feelings’—that’s all
Eugene Kontorovich teaches at Northwestern University School of Law. He specializes in constitutional law, federal courts and public international law.
Comey’s testimony in the Senate Thursday shows that the president did nothing illegal, and that both he and Comey acted unprofessionally. In essence, the testimony is about Comey’s feelings. In his written statement, he says he felt “compelled” to take notes, and had a “feeling” that Trump wanted to “create some sort of patronage relationship” but provides no hard evidence for that. Similarly, the testimony Thursday was about Comey’s feelings. (Plus, Comey’s own “patronage” theory is undermined by the fact that though he did not pledge “loyalty” to Trump, the latter went on to express satisfaction that he would stay in his job in the new administration.)
The most untoward event Comey recounted in his testimony is Trump’s expression of “hope” that the investigation into Flynn be dropped. But the president did not command Comey to do so, or even belabor the point, which was one of many in a rambling discussion. Comey, who obviously is not trying to do Trump any favors, says he “took it as” a direction, but does not say he was pressured. Nonetheless, the conversation was certainly unwise and untoward on Trump’s part, but not illegal. And it is a single incident. Given the vast speculation about Trump’s supposed leaks to the Russians and improper campaign activities, this is underwhelming.
But the impartiality of Comey’s feelings, and motivations, are called into some question by his testimony. He has testified that he began transcribing him meetings with Trump from their first meeting. He admits he did not do this with President Barack Obama, but that he felt “compelled” to do so with Trump, even when Trump was still president-elect. But his explanations for this “compulsion” are inadequate at best, and compromising for Comey at worst. He says he wrote it down partly because it was meetings with the president that “about matters that touch on the FBI’s core responsibility.” But he spoke with Obama about important law enforcement issues without running out to take notes. Most amazingly, he admitted in the hearing that he took notes because of “the nature of the person.” In other words, Comey treated Trump differently because he did not like his personality, and did not trust him.
This strongly suggests that Comey was one of the many professional civil servants who, from the moment Trump was elected, decided that he would not get the same respect or “presumption of regularity” as all other duly elected chief executives. Perhaps Trump was right to worry about loyalty, in the sense of a civil servant’s duty to serve all administrations equally, regardless of their “feelings” about the incumbent.