Published by The Lawfare Institute
in Cooperation With
Last night, CNN ran a lengthy interview I did with Anderson Cooper, in which I made a bald statement. When Cooper asked me about President Trump’s claim that then-FBI Director James Comey had assured him three times that he was not “under investigation," I said: “I have no firsthand knowledge of that. I’ve never talked to [Comey] about it, but I would bet every dollar that I have that no such communication ever took place. It’s simply inconceivable to me that Comey would tell the President that.”
I’ve said similar things in other interviews, but given the vagueness of the phrase “under investigation,” I should probably clarify what precisely I mean here and what I am not saying. The exercise actually provides a good opportunity to imagine what Comey may really have said to Trump in those three conversations that Trump has asserted took place.
The President’s exact words in his letter and in his later conversation with NBC’s Lester Holt are ambiguous. In his letter, he wrote that “I greatly appreciate you informing me, on three separate occasions, that I am not under investigation.” In his conversation with Holt, he said the following:
TRUMP: First of all, when you’re under investigation, you’re given all sorts of documents and everything. I knew I wasn’t under and I heard it was stated at the committee, at some committee level, that I wasn’t. Number one.
HOLT: So that didn’t come directly from him [Comey]?
TRUMP: Then during a phone call he said it. And then during another phone call he said it. So he said it once at dinner and then he said it twice during phone calls.
HOLT: Did you call him?
TRUMP: Uh, in one case I called him and in one case he called me.
HOLT: And did you ask, “Am I under investigation?”
TRUMP: I actually asked him, yes. I said, “If it’s possible, would you let me know am I under investigation?” He said you are not under investigation.
HOLT: But he’s, he’s given sworn testimony that there is an ongoing investigation into the Trump campaign and possible collusion with the Russian government? You were the centerpiece of the Trump campaign, so was he being truthful when he says you weren’t under investigation?
TRUMP: Well, all I can tell you is, well I know what, I know that I’m not under investigation. Me. Personally. I’m not talking about campaigns. I’m not talking about anything else. I’m not under investigation.
Trump’s words can actually mean a few different things. And some of these things are more plausible accounts of what Comey might have said than are others. So let’s break it down.
The most natural reading of the sentence in the letter is the one I would stake everything I own on Comey’s never having said. That is, I do not believe that Comey told Trump even on one occasion, let alone three, that Trump’s conduct was not implicated in any investigation taking place within the Bureau. The reason I don’t believe that is threefold:
- First, Comey has testified publicly that the FBI is investigating links and coordination between Trump’s campaign and the Russians. Given Trump’s very public flirtations with the Russians during that campaign and his leadership of his own campaign, given his appointment of Gen. Michael Flynn as national security advisor despite ongoing concerns, and given a thousand other factual and atmospheric conditions, it would have been lunacy for Comey to assure the President that his conduct was not ultimately a matter of scrutiny in at least some of the investigative threads the FBI had—and has—ongoing. And while the President has called him a “nut job,” Comey is not, in fact, a lunatic.
- Second, assuring someone at the head of an organization that you’re investigating that he’s not part of the investigation—unless you’re absolutely sure that you know the parameters of the investigation—is completely inappropriate and irresponsible. It's plausible in a situation in which a company employee is bilking the company, whose CEO is then effectively a crime victim. But to do it in a situation in which the Russians had intervened in the election on Trump's behalf and had contacts with some of his people is unimaginable to me. It would sacrifice the integrity of an investigation to which I know Comey was deeply and personally committed. I just do not believe that he would do that. This is why Trump's admission to Holt that he can't deny that his campaign is under scrutiny is significant. The President is asking people to believe that the Trump campaign—as Comey has testified publicly—is facing an investigation but that "I’m not under investigation. Me. Personally. I’m not talking about campaigns. I’m not talking about anything else." I just don't believe the FBI Director would have told the head of a snake that he is magically exempt from investigative scrutiny associated with the snake itself; and
- Third, as I previously explained, Comey believed the President was trying to pressure him and that he had to protect the FBI and insulate it from that pressure in order to let the Bureau do its job. It is inconceivable to me that he would have sought to reassure the President by telling him that his personal conduct was not at issue precisely at the time he was resisting encroachments by the President on the FBI’s independence.
But here’s the thing: Unless Trump is completely delusional, we should probably assume that at least some conversations—maybe even three of them—took place in which Trump sought information about his status with respect to one or more FBI matters and that Comey said something in response.
The really interesting question here is what he might have said. Here are a few thoughts and theories on that question.
First off, there’s actually nothing unusual about a person who is wrapped up in a white collar investigation inquiring about his status within it. It’s usually done through counsel, of course, and it’s not usually done to the FBI itself, much less to the FBI director personally. But let’s leave aside for a moment the propriety of the President’s making such an inquiry, much less his making it of Comey directly and circumventing the Justice Department in doing so. (I’ll return to that below.)
The Justice Department will often, in white collar investigations, tell someone whether he or she is a “witness,” a “subject,” or a “target.” None of these categories maps neatly onto the phrase “under investigation,” of course. But the point is that if Trump meant in his letter merely that he had inquired of Comey what his status was, I wouldn’t be surprised at all if Comey had answered that question.
What’s more, I also would not be entirely surprised if Comey had answered some other question Trump had asked with reference to these three categories. That is, I could easily imagine Trump’s asking repeatedly, “Am I under investigation?” and repeatedly receiving the answer, “You are not currently the target of any investigation.” Trump could assign whatever meaning he wanted to that answer. But the information in question is material the Justice Department commonly provides. In fact, when someone becomes a target of a federal investigation, a status with specific meaning that typically indicates a forthcoming arrest or indictment, the department will often notify the person of that fact by letter.
Testifying before the Senate Intelligence Committee days after Comey’s dismissal, Acting FBI Director Andrew McCabe cast some doubt on whether Comey answered status questions but he didn't rule it out. McCabe, under persistent questioning on these alleged exchanges, consistently refused to comment on “whether the Director and the President of the United States had that conversation,” but he did say that the FBI “do[es] not typically answer [the] question” of whether a particular individual is “under investigation.” He also stated that he was “not aware of [its] being standard practice” for the FBI to inform an individual that he or she is not the target of an investigation.
Here’s another important wrinkle: The FBI’s counter-intelligence investigations are subject specific. In a criminal investigation, investigators open a probe because they believe a crime has been committed—that is, they start with a fact pattern and investigate to determine who committed the crime or whether the fact pattern constitutes a crime. But a counter-intelligence investigation is generally an investigation of a person or an entity. That is, when the Bureau develops a sufficient factual predicate to believe that a person may be acting as a foreign agent or being targeted for recruitment by a foreign power, it opens a case on that person. Sometimes, these cases evolve into criminal matters. Sometimes they don’t. And sometimes they lead to files being opened on other individuals. But it’s possible to read the question of whether a person is “under investigation” in this context as meaning something as narrow as asking whether there is an open counterintelligence file on him specifically.
I can imagine two separate mechanisms, either or both of which could have led to Comey's disclosing that there was no open counterintelligence file specifically on Trump. The first is that it reportedly fell to Comey, along with other intelligence leaders, to brief the President-elect on the allegations in the Steele dossier. As CNN wrote at the time:
Multiple US officials briefed on the matter told CNN on Thursday [January 12] that FBI Director James Comey and Trump had a brief one-on-one conversation at last Friday's intelligence briefing.
It's during that pull aside that Comey briefed the President-elect on the two-page synopsis of the claims about Trump and Russia. All four intelligence chiefs had decided that Comey would be the one who would handle the sensitive discussion with the President-elect.
Officials emphasized at the time that just because Trump had been briefed on the Steele dossier did not mean that the intelligence community took the allegations in the report seriously. As then-Director of National Intelligence James Clapper stated after a call with Trump days after the briefing, following Trump’s castigation of the intelligence community for allegedly leaking the material in the dossier: "I emphasize that this document [the Steele dossier] is not a U.S. intelligence community product…. The IC has not made any judgment that the information in this document is reliable, and we did not rely upon it in any way for our conclusions. However, part of our obligation is to ensure that policymakers are provided with the fullest possible picture of any matters that might affect national security."
The briefing material in question reportedly included the Steele dossier’s allegations that Russian intelligence had collected embarrassing personal and financial information about Trump in an effort to compromise him. It’s easy to imagine, given the intelligence community’s decision to brief Trump on a whole lot of material that the agencies could not stand behind, that when Comey came to the President to advise him of the salacious and (if true) highly compromising allegations in that document, the President-elect might quite reasonably have asked whether Comey was investigating these allegations about him. It’s conceivable to me that Comey may have told the President-elect under those circumstances that there was no specific investigation of the Steele allegations with regard to him.
There’s another way I could imagine Comey’s saying that there was no specific counter-intelligence investigation of Trump: Trump may have committed the grotesque impropriety of demanding to know—after he was President. For reasons we have discussed at length on this site, this would violate all sorts of important norms. But welcome to Planet Trump. The violation of those norms would have put Comey in an exceptionally difficult position. The President is, after all, the head of the executive branch and he has the authority to demand whatever information he wants—just as he has the authority to dish highly classified material to the Russians if he wants and blow important US intelligence relationships in the process.
What’s more, we know that Comey briefed members of Congress on the Russia investigation in classified settings. If I were a member of Congress briefed at that time, I certainly would have asked very directly, “Does any information you’ve developed touch Trump individually, and do you have an open file on him specifically?” Not only would I have asked, I would have demanded an answer and interpreted the refusal on Comey’s part to answer as at least highly suggestive of an open file. If members were doing their jobs, they asked this question. And it’s hard to imagine how Comey could have taken the view that he would refuse to provide information to the head of his own branch of government that he had already provided to a coordinate branch of government.
Except, that is, by resigning. But resigning would have abnegated his ongoing efforts to shield the Bureau from Trump and the cabal around him—efforts I know he considered a matter of personal honor and mission. So it’s conceivable to me that, particularly if he had already disclosed that there was no open file on Trump in the context of the Steele matters, he might have reiterated that in response to questions later about whether Trump was “under investigation.”
Note that if Comey were asked this question in this context and answered that there was no open counter-intelligence file on Trump, that would not in any sense mean—at least as the common person would understand the phrase—that Trump was not “under investigation.” It would mean merely that the person-specific counter-intelligence investigations of individuals within Trump’s orbit or organization had not developed sufficient information to open a separate file on Trump individually.
There’s one other critically important point to mention: If Trump wasn’t, in fact, “under investigation” when he asked Comey about it, I would be stunned if he weren’t so now. There is simply no way to look at the revelations of the last week and not see a predicate for an obstruction investigation. One of the many elements of the fact pattern that has emerged which Bob Mueller will certainly want to examine in this regard are the President’s—by his own account—repeated inquiries to the then-FBI director as to the status of the probe vis a vis himself.