Executive Branch

Two Reflections on the Comey Statement

Jack Goldsmith
Wednesday, June 7, 2017, 8:56 PM

Though I agree with much of what Ben says about James Comey’s statement, I find myself in greater agreement with David French’s account.

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Though I agree with much of what Ben says about James Comey’s statement, I find myself in greater agreement with David French’s account. As French concludes, “there are some elements that are good for President Trump, but overall it shows a chief executive placing improper pressure on the FBI director — pressure that no GOP politician would tolerate from a Democratic president.” I write to add two points.

First, I disagree with Ben about whether the Comey statement vindicates Trump’s claim, in his letter firing Comey, that Comey “on three separate occasions” informed the President that he was “not under investigation.” Contrary to Ben, that seems to me like a fair reading of what Comey says he told Trump.

Comey says that he told the President—the first time without the President raising the topic—that the FBI was not investigating him. Comey makes clear that the first time he said this, he meant that the FBI did not “have an open counter-intelligence case on” Trump. But he does not say that he explained to Trump that his “assurance” was so limited. Moreover, Comey later says that in connection with his confirmation to Congress about “the investigation into possible coordination between Russia and the Trump campaign,” he told the President that he (Comey) “told ... Congressional leaders that we were not personally investigating President Trump.” He also “reminded” President Trump that he had previously told him this.

Ben says the Comey statement “emphatically does not amount to Trump’s blanket statement that he was assured multiple times that he was not under investigation.” He reasons:

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.

This seems nit-picky to the point of wrong, at least based on the Comey statement. Regardless of what Comey intended, we don’t have any reason to think that Comey distinguished in his comments to Trump between a counter-intelligence investigation and some other type of investigation. And Comey himself said that he told the President that he was not under investigation concerning “possible coordination between Russia and the Trump campaign.” It is easy to see how the President might interpret that statement as meaning that he was not under investigation in connection with the Russia matter, period. Maybe Comey was hiding the ball from the President in his conversations, and there is an investigation of the President other than a counter-intelligence one related to Russia. Comey does say at one point: “I did not tell the President that the FBI and the Department of Justice had been reluctant to make public statements that we did not have an open case on President Trump for a number of reasons, most importantly because it would create a duty to correct, should that change.” Comey was at least contemplating the possibility that Trump’s investigation status might change. But the premise of that contemplation was that “we did not have an open case on President Trump.”

Second, consider one of French’s best points about what the Comey statement reveals:

Overall, one gets the impression that the president views himself less as the president of a constitutional republic and more as the dictatorial CEO of a private company. This is understandable, given his long experience in the private sector, but it’s unsustainable. President Trump has to better understand not just the separation of powers but also the constitutional and legal obligations of governance, or the turmoil surrounding Comey’s termination will be but the first of a series of controversies that could well shake his presidency to its foundation.

This analysis echoes points that Bob Bauer has made on this site. And it is right. Trump does not remotely understand his role, status, and duties as President and Chief Executive, and this failure infects or undermines just about everything he does. It is an amazing state of affairs: A President of the United States who does not at all grasp the Office he occupies, and who thus entirely lacks the proper situation sense, or contextual knowledge, in which a President should exercise judgment or act. Let that sink in, and then imagine all of the decisions a President must make, all that he is responsible for. This reflection is the main reason why I have come to believe that the President does not deserve a presumption of regularity in his actions—not just by courts with respect to the immigration executive orders, but by the public more generally with respect to “everything the Executive does that touches, however lightly, the President.”

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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