Published by The Lawfare Institute
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Today was a bad day for President Trump. Really bad.
Over the weekend, I wrote a short piece about how to understand the testimony FBI Director James Comey was to give today. The bottom line was that: "Comey's communicativeness with the committee—and through it with the public—will almost certainly be inversely proportional to the seriousness of the Russia investigation." That is,
if Comey says a lot, makes a lot of news on Russia matters, and cheers a lot of anti-Trump hearts by maximally embarassing the President for his outrageous comments on Obama's alleged wiretapping of Trump Tower, that will very likely be a sign that Comey has relatively little to protect in terms of investigative equities in the Russia matter and is thus free to vent. Conversely, a quiet, reserved Comey—one whose contrast with the relatively loquacious FBI director who talked at length about the Clinton email matters will infuriate a lot of liberals and frustrate those who want to know what's going on with Russia—may well spell trouble for the President.
The article spelled out three possible scenarios: In the first, Comey does not have much in the way of investigative equities to protect and he thus feels very free to give vent to his anger about the President's tweets, which imputed illegal conduct to the FBI. This scenario means "that [Comey] has decided that he doesn't mind being fired and that it's more important to tell the truth than to keep his job, and second and relatedly, that he has decided that his continued presence at FBI isn't necessary to preserve a crucially important investigation that is ongoing."
In the second scenario, "there are still threads of the Russia investigation to protect but Comey does not necessarily expect them to lead anywhere. If this is the case, expect him to be tight-lipped about Russia but relatively communicative about the wiretapping allegations."
In the third scenario,
Russia is a very big deal. Comey, in other words, has significant investigative equities to protect and he believes that he needs to be there in order to protect them—in other words, that he has a responsibility to not get himself fired because of his anger about the Trump tweets (or anything else) because he has to make sure the investigation can proceed unimpeded. In this situation, I would expect him to be minimally verbal. He may have to answer yes or no questions in certain instances, including about the truth of the wiretapping allegations, but he will refuse to answer a lot of questions. He will make as little news as humanly possible. He will be exceptionally spare with his opinions. He will make a point of not antagonizing the President. Lots of people will leave disappointed.
So which Comey showed up today?
Let's start with the obvious point: It certainly wasn't the Jim Comey of scenario number one. Yes, Comey contradicted the President on the accuracy of the tweets, but he did not do so in his opening statement. He only did it only in response to specific questioning from Adam Schiff, and he did it relatively minimally, gently even. Here's what he said:
SCHIFF: Director Comey, I want to attempt to put to rest several claims made by the president about the predecessor, namely that President Obama wiretapped his phone. so that we can be precise, i want to refer you to exactly what the president said, and ask you if there is any truth to it. First, the president claimed, quote, Terrible. Just found out that Obama had my wires tapped in Trump Tower just before the victory. Nothing found. This is McCarthyism, unquote. Director Comey, was the president's statement that Obama had his wires tapped in Trump Tower true?
COMEY: With respect to the president's tweets about alleged wiretapping directed at him from the prior administration, I have no information that supports those tweets and we have looked carefully inside of the FBI. The Department of Justice has said that the answer is the same for the Department of Justice and all its components. The Department has no information that supports those tweets.
SCHIFF: The president accused Mr. Obama, and presumably the FBI, of engaging in McCarthyism. As you understand the term McCarthyism, do you think that President Obama or the FBI was engaged in such conduct?
COMEY: I am not going to try to characterize the tweets themselves. All I can tell you is that we have no information that supports them.
SCHIFF: Were you engaged in McCarthyism, Director Comey?
COMEY: I try very hard not to engage in any isms of any kind, including McCarthyism.
SCHIFF: The president second stated, quote, is it legal for a sitting president to be wiretapping a race for president prior to an election. Turned down by court earlier. A new low, end quote. Can you answer the President's question, would it have been legal for President Obama to have ordered a wiretap of Donald Trump?
COMEY: I won't characterize or respond to the tweets themselves, but I can tell you that in general, as Admiral Rogers and I were saying, there is a statutory framework in the United States under which courts grant permission for electronic surveillance either in a criminal case or the national security case based on the showing of probable cause carefully overseen. It is a rigorous, rigorous process involving all three branches of government and it’s one that we have lived with since the late 1970s. That is how it works. No individual in the United States can direct electronic surveillance of anyone, and it has to go through the application process, and ask a judge. The judge can then make a order.
SCHIFF: So President Obama could not unilaterally order a wiretap of anyone?
COMEY: No president could.
SCHIFF: Mr. Trump also asserted in the tweet that the application was turned down by a court. Was there any request made by the FBI or the Justice Department to wiretap Donald Trump turned down by a court?
COMEY: That is one of the subjects that I can’t comment on one way or another, and please don't interpret that, but I cannot respond to anything that relates to the FISA process in an open setting.
SCHIFF: Third, the president said, I bet that a good lawyer could make a case out of the fact that President Obama was tapping my phones in October just prior to the election. Director Comey, you are a good lawyer. Can you make a great case that President Obama wiretapped President Trump's phones just prior to the election, in light of the fact that you've said you have no evidence of that
COMEY: All I can say is what I've said before, that we don't have any information that supports those tweets.
If Comey is, indeed, irate about the tweets, you don't see that here. And he certainly wasn't acting like someone who feels free to give voice to his anger because he's decided he's got nothing to protect in terms of his ongoing investigation. Indeed, his words here actually seem careful to spare the President embarrassment. He could, after all, quite truthfully have said something far more indignant and accusatory—something like, say, "there is no truth to that whatsoever" or even "that was a lie and an insult to the men and women of the FBI who conduct electronic surveillance only under the rule of law." He didn't do anything like that. He even put a little distance between himself and the factual correction of his boss by describing the tweets merely as reflecting a conclusion his investigation does not support. This is, I think, close to the most generous way Comey could possibly have responded to Trump. And it suggests to me that the investigative equities at stake here are non-trivial.
We don't need to speculate on that point because Comey announced it very clearly. Here's what he said about the Russia investigation:
As you know our practice is not to confirm the existence of ongoing investigations, especially those investigations that involve classified matters. But, in unusual circumstances, where it is in the public interest, it may be appropriate to do so, as Justice Department policies recognize. This is one of those circumstances. 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.
Because it is an open, ongoing investigation, and is classified, I cannot say more about what we are doing, and who’s conduct we are examining. At the request of congressional leaders, we have taken the extraordinary step, in coordination with the Department of Justice, of briefing this Congress’s leaders, including the leaders of this committee, in a classified setting in detail about the investigation. But I can’t go into those details here. I know that is extremely frustrating to some folks. I hope you and the American people can understand, the FBI is very careful in how we handle information about our cases, and about the people we are investigating. We are also very careful about how we handle information that may be of interest to our foreign adversaries. Both of those interests are at issue in a counterintelligence investigation.
Please don’t draw any conclusions from the fact that I may not be able to comment on certain topics. I know speculating is part of human nature. But it really isn’t fair to draw conclusions simply because I say “I can’t comment.” Some folks may want to make comparisons to past instances where the Department of Justice and the FBI have spoken about the details of some investigations. But please keep in mind that those involved the details of completed investigations. Our ability to share details with the Congress and with the American people is limited when those investigations are still open. Which I hope makes sense. We need to protect people’s privacy. We need to make sure we don’t give other people clues as to where we’re going. We need to make sure we don’t give information to our foreign adversaries about what we know or don’t know. We just cannot do our work well or fairly if we start talking about it while we’re doing it. So we will try very, very hard to avoid that, as we always do. This work is very complex, and there is no way for me to give you a timetable as to when it will be done.
We approach this work in an open-minded and independent way, and our expert investigators will conclude that work as quickly as they can, but they will always do it well no matter how long that takes (emphasis added).
Comey very politely requested that people not to draw any conclusions from his refusal to comment on certain topics. I cannot oblige him. I think there are important inferences to draw here both from what he said and also from what he didn't say.
First off, the scope of the investigation explcitly includes not merely the Russian government's hacking and attempts to interfere in the U.S. election. It also includes both "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." These are framed as active investigative questions, not—as White House and Republican officials have repeatedly suggested in recent weeks—matters of investigative conclusion. Comey offered the White House no solace of any time of time frame for resolution. Indeed, he announced that there was no time frame.
Second, Comey specifically included the fact that the investigation "will also include an assessment of whether any crimes were committed." This is an interesting point for him to include, and it may (or may not) be a signal.
One of the only good pieces of news for Trump in this testimony is Comey's formulation of the investigation he announced as a counterintelligence investigation, not a criminal investigation. This little-understood distinction is actually important. A criminal investigation is designed to suss out whether a crime was committed and needs to be prosecuted, who is guilty of it, and whether the evidence would support a conviction. A counterintelligence investigation, by contrast, is designed to respond to foreign espionage against the United States. The goal is not necessarily to prosecute but to figure out what kind of steps may need to be taken to prevent whatever harm is threatened. Most counterintelligence investigations don't result in criminal charges; they might result instead in long-term monitoring of foreign actors, cyberdefense activities, or even diplomatic moves. So when Comey says this is a counterintelligence investigation, not a criminal investigation, he is flagging that prosecuting anyone, let alone the President, may not be his top priority.
All of which makes his apparently gratuitous inclusion of a criminal element in describing the investigation curious. As Comey notes, the criminal component of this investigation is actually always there: "As with any counterintelligence investigation," he said, "this will also include an assessment of whether any crimes were committed." The criminal element is always there there because criminal process is an inherent feature of any investigation that involves activities—like hacking and spying—that implicate federal criminal laws.
But if a criminal element is always a feature of a counterintelligence probe, why mention it specifically? The answer, I suspect, is that Comey is flagging for the committee, and the public, the possibility that this matter could become criminal at any time. That is, it's not a criminal investigation, Comey is saying . . . yet.
Third, Comey then declared that he wasn't going to discuss specific aspects of the investigation, and he spent much of the rest of the hearing declining just about everyone's invitations to explore the contours of the probe. He resisted all questions about specific individuals, from refusing to discuss the Flynn leaks with Republicans to refusing any efforts by Democrats to ask whether his investigation included specific Russia-Trump matters they thought important.
In this sense, except for the announcement at the outset that the investigation existed at all, his behavior most resembles the third scenario I outlined. With this one big exception, this was a very reticent Jim Comey. And while he asked us not to read anything into that, I read one big thing into it anyway: there's a significant investigation going on, and Comey doesn't want either Congress or presidential tweets to impede his conduct of it.
If there's anything mitigating the bad news for the White House here, it is that Comey may have also sent subtle signals that the matters under investigation are not principally about the personal conduct of Trump himself. While this is speculation, I do not believe that if Comey had, say, validated large swaths of the Steele dossier or found significant Trump-Russia financial entanglements of a compromising variety, he would have said even as much as he said today. I also don't think he would have announced the scope of the investigation as about the relationship "between individuals associated with the Trump campaign and the Russian government" or "coordination between the campaign and Russia’s efforts"; these words suggest one step of removal from investigating the President himself. If the latter were the case, I suspect Comey wouldn't have used words suggestive of the Flynn-Manafort-Page cabal.
But that's reading a lot into a relatively small number of tea leaves. What is clear is that this was a very bad day for the President. In it, we learned that there is an open-ended Russia investigation with no timetable for completion, one that's going hang over Trump's head for a long time, and one to which the FBI director is entirely committed.