Executive Branch

Initial Comments on James Comey’s Written Testimony

Benjamin Wittes
Wednesday, June 7, 2017, 3:09 PM

James Comey’s seven-page written statement, released by the Senate Intelligence Committee this afternoon in connection with Comey’s impending testimony tomorrow, draws no conclusions, makes no allegations, and indeed, expresses no opinions. It recounts, in spare and simple prose, a set of facts to which Comey is prepared to testify under oath tomorrow.

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James Comey’s seven-page written statement, released by the Senate Intelligence Committee this afternoon in connection with Comey’s impending testimony tomorrow, draws no conclusions, makes no allegations, and indeed, expresses no opinions. It recounts, in spare and simple prose, a set of facts to which Comey is prepared to testify under oath tomorrow. Despite this sparseness, or maybe I should say because of it, it 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.

Let me begin by walking through the document and annotating it a bit with those reasonable inferences that Comey leaves implicit but which a member of Congress, or a member of the public, should certainly consider. That is, let me start by considering in a narrow-bore way what some of these facts mean. Having done so, I’ll zoom out and try to make sense of the big picture as Comey takes the stand tomorrow. Comey proceeds in his statement chronologically. I am going to treat matters more thematically—which will mean bouncing around a bit in the document. The following comments will make more sense if readers first take the time to read the statement in its entirety, something I think it incumbent on citizens and other stakeholders in this society to do.

The first broad theme I want to highlight here is the effort on the part of the President to engage his FBI director in a relationship of patronage and the overwhelming discomfort this effort caused Comey. This is a theme I wrote about based on my own contemporaneous conversations with Comey, but to see it fleshed out across a number of different incidents is nevertheless jarring.

Comey is explicit that he saw Trump as attempting to enmesh him in an inappropriate relationship at the time. Of the January 27 dinner, for example, he writes that, “My instincts told me that the one-on-one setting, and the pretense that this was our first discussion about my position, meant the dinner was, at least in part, an effort to have me ask for my job and create some sort of patronage relationship.” And it’s hard to read this meeting any other way, at least not as Comey describes it. The President repeatedly asked for “loyalty,” was not satisfied with a promise of “honesty,” and the two compromised only awkwardly over the term “honest loyalty.” Trump specifically dangled the question of Comey’s keeping his job over his head. In their last conversation, on April 11, Comey reports that Trump emphasized to him that “I have been very loyal to you, very loyal; we had that thing you know.”

Throughout the document, Comey reports extreme discomfort with Trump’s behavior generally, and this aspect of it particularly. At that dinner, Comey felt compelled to tell the President that he was not “reliable” in the way politicians expect. He reports that the President’s efforts to engage him in a “patronage” relationship “concerned me greatly, given the FBI’s traditionally independent status in the executive branch.” He describes the interaction as a “very awkward conversation.”

Remarkably, even before that meeting, Comey was so uncomfortable with Trump that he had already begun writing memos recording every interaction he had with the President and sharing them with the FBI’s senior leadership. After their first meeting, on January 6, Comey recounts:

I felt compelled to document my first conversation with the President-Elect in a memo. To ensure accuracy, I began to type it on a laptop in an FBI vehicle outside Trump Tower the moment I walked out of the meeting. Creating written records immediately after one-on-one conversations with Mr. Trump was my practice from that point forward. This had not been my practice in the past.

Indeed, it contrasts sharply with his interactions with Obama, whom he admired a great deal. And he makes that point specifically:

I spoke alone with President Obama twice in person (and never on the phone) – once in 2015 to discuss law enforcement policy issues and a second time, briefly, for him to say goodbye in late 2016. In neither of those circumstances did I memorialize the discussions. I can recall nine one-on-one conversations with President Trump in four months – three in person and six on the phone.

In other words, Comey is saying here how little he trusted Trump from the beginning, and that Trump’s behavior caused him to behave differently than he had in the past.

This brings me to the second broad theme about Trump’s conduct, which is the serial investigative inquiries made directly of the FBI. The first one, on the occasion of the January 6 briefing about the Steele dossier, is probably forgivable. Comey had to brief the President-elect on what he described as “salacious and unverified” allegations. It’s not clear what precisely Trump said or did in response to the briefing, and, in fact, Comey suggests that he did not directly ask whether the FBI was investigating the matter. That said, and I’ll return to this point below, it was “based on President-Elect Trump’s reaction to that briefing” that Comey felt compelled to assure him that he was not personally the subject of “an open counter-intelligence case.” So that case is a little murky.

The pages of the testimony are laced, however, with examples of other inappropriate queries of the FBI director on investigative matters. There’s the conversation about General Michael Flynn; there is a subsequent inquiry on the Steele material; there are questions about when Comey was going to publicly state that Trump wasn’t personally under investigation.

It’s hard to express to people who are not steeped in federal law enforcement just how inappropriate these inquiries are, particularly when they involve an investigation in which the President has such deep and multifaceted personal stakes. No, they are not illegal. The President, after all, has constitutional authority to ask for whatever information he wants from his subordinates in the executive branch. But of course, the President also has the authority to give the State of the Union address in Latin and have it consist entirely of obscenities directed at the Speaker of the House. To people who know the norms of federal law enforcement, the conduct described here is closer to that end of the spectrum of presidential behavior than it is to the normal range.

Don’t take my word for that. At a recent event at the Federalist Society, I asked former Attorney General to President George W. Bush Michael Mukasey and former Obama White House Counsel Neil Eggleston whether they could imagine a conversation along the lines of Trump’s interaction with Comey over Flynn taking place between the two presidents they served and their top law enforcement officials regarding an ongoing investigation. As Josh Gerstein summarized in Politico,

Both men said they could not conceive of their bosses having the conversation Trump reportedly had with Comey in February, urging him to back away from any further investigation of former national security adviser Michael Flynn….

Asked if that could have happened under Bush, Mukasey said: "One word answer: No." He later said he was aware of no such White House involvement in criminal cases or investigations during his tenure.

"The norm was observed," the former AG said.

Eggleston said Obama's White House had and generally adhered to a policy of not discussing investigations with people at the Justice Department.

"It would not have happened while I was in the White House," the former White House counsel said. "We would not have been talking to the FBI director or attorney general about a specific investigative matter... That just would not happen."

Comey was so concerned about these interactions that he specifically asked Attorney General Jeff Sessions to shield him from them:

I spoke with Attorney General Sessions in person to pass along the President’s concerns about leaks. I took the opportunity to implore the Attorney General to prevent any future direct communication between the President and me. I told the AG that what had just happened – him being asked to leave while the FBI Director, who reports to the AG, remained behind – was inappropriate and should never happen. He did not reply.

An overlapping but distinct theme here involve the incidents of substantive pressure the President placed on the FBI for specific investigative outcomes. The most upsetting example here is the pressure to drop the Flynn investigation, which Comey explicitly states he understood as political pressure for a particular substantive outcome. Comey reports:

The President then returned to the topic of Mike Flynn, saying, “He is a good guy and has been through a lot.” He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” I replied only that “he is a good guy.” . . . I had understood the President to be requesting that we drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December.

But the Flynn conversation is not the only example of specific substantive pressure in the document. During the January 27 dinner, Comey recounts that Trump “said he was considering ordering me to investigate the [Steele dossier material] to prove it didn’t happen.” On phone calls both on March 30 and April 11, Trump asked Comey to “find a way to get it out that we weren’t investigating him” (March 30) and “‘get out’ that he is not personally under investigation” (April 11).

Let’s leave to another day whether anything the President did here amounts to any kind of obstruction of justice. It’s poisonous stuff to a rule of law society that requires that law enforcement not be simply an arm of political power.

Finally, there’s Comey’s clarification of what Trump appears to have meant when he wrote in his letter dismissing Comey that Comey informed him “on three separate occasions … that I am not under investigation.” I wrote about what those interactions may have consisted of some time back, arguing that it was simply inconceivable that Comey would have told the President his conduct was not at issue in any of the probes under way. Suffice it to say that the reality is rather closer to my hypotheses about what happened than it is to Trump’s characterization. Keep in mind, as I pointed out in that piece, that counter-intelligence investigations are subject specific; that is, they are focused on individuals, not on crimes. Comey makes this point in his statement as well, and it is critical to understanding these interactions.

The first incident occurred on January 6, when Comey briefed Trump on the salacious material in the Steele dossier. Comey reports:

Because the nature of the hostile foreign nation is well known, counterintelligence investigations tend to be centered on individuals the FBI suspects to be witting or unwitting agents of that foreign power. When the FBI develops reason to believe an American has been targeted for recruitment by a foreign power or is covertly acting as an agent of the foreign power, the FBI will “open an investigation” on that American and use legal authorities to try to learn more about the nature of any relationship with the foreign power so it can be disrupted.

In that context, prior to the January 6 meeting, I discussed with the FBI’s leadership team whether I should be prepared to assure President-Elect Trump that we were not investigating him personally. That was true; we did not have an open counter-intelligence case on him. We agreed I should do so if circumstances warranted. During our one-on-one meeting at Trump Tower, based on President-elect Trump’s reaction to the briefing and without him directly asking the question, I offered that assurance.

The second incident took place later that month, at the January 27 dinner, when Trump announced he was thinking of ordering Comey to prove the allegations false:

During the dinner, the President returned to the salacious material I had briefed him about on January 6, and, as he had done previously, expressed his disgust for the allegations and strongly denied them. He said he was considering ordering me to investigate the alleged incident to prove it didn’t happen. I replied that he should give that careful thought because it might create a narrative that we were investigating him personally, which we weren’t, and because it was very difficult to prove a negative.

The third incident took place during the March 30 phone call:

Then the President asked why there had been a congressional hearing about Russia the previous week – at which I had, as the Department of Justice directed, confirmed the investigation into possible coordination between Russia and the Trump campaign. I explained the demands from the leadership of both parties in Congress for more information, and that Senator Grassley had even held up the confirmation of the Deputy Attorney General until we briefed him in detail on the investigation. I explained that we had briefed the leadership of Congress on exactly which individuals we were investigating and that we had told those Congressional leaders that we were not personally investigating President Trump. I reminded him I had previously told him that. He repeatedly told me, “We need to get that fact out.”

Ironically, the document makes perfectly clear that Trump was aware that the investigation was touching people close to him in the campaign and his company, and that he was perfectly willing to throw these people under bus if need be: “The President went on to say that if there were some ‘satellite’ associates of his who did something wrong, it would be good to find that out, but that he hadn’t done anything wrong and hoped I would find a way to get it out that we weren’t investigating him.”

Put simply, this emphatically does not amount to Trump’s blanket statement that he was assured multiple times that he was not under investigation. Trump might have been on solid ground in his letter firing Comey had he written that “I greatly appreciate you informing me, on three separate occasions, that none of the investigations involving my campaign, my subordinates, or my companies at the present time involves an open counterintelligence case directed at me personally.” Somehow, however, that lacks the self-exculpating ring the President seems to have been going for.

So what does it all mean? We will learn more tomorrow, of course, when Comey is asked to expand on the points he makes in this document, when he is asked about incidents to which he makes no reference here, when he is asked about the circumstances of his firing, and when he is challenged by those senators who may be skeptical of his account. We will also learn more as we see which parts of this document, if any, the White House contests.

But I will make three general observations based on this document alone.

First, 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.

Second, we are about to see a full-court press against Comey. I don’t know what it will look like. But the attack instinct always kicks in when a presidency is under siege. And Trump has the attack instinct in spades even when he’s not under siege. It is important to remember what the stakes are here. They are not about whether Comey was treated fairly. They are not about whether you like him. They are not about whether he handled the Clinton email investigation in the highest traditions of the FBI or the Justice Department. They are not about leaks. The stakes here are about whether what Comey is reporting in this document are true facts and, if so, what we need as a political society to do about the reality that we have a president who behaves this way and seeks to use the FBI in this fashion. It is critical, in other words, that people not change the subject or get distracted when others try to do so.

Finally, it is also critical—though probably fruitless to say—that we eschew partisanship in the conversation. Tomorrow, this document will be the discussion text when Comey faces a committee that, warts and all, has handled the Russia matter to date in a respectable and honorably bipartisan fashion. It is not too much to ask that members put aside party and respond as patriots to the fact that the former FBI director will swear an oath that these facts are true—and was fired after these interactions allegedly took place by a man who then told Lester Holt that “when I decided to just do it [fire Comey], I said to myself … this Russia thing with Trump and Russia is a made up story,” and boasted to the Russians the day after dismissing Comey that “I faced great pressure because of Russia. That’s taken off.”

The question they—and we—all face is simple: Do we care?

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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