RUTHFULLY YOURS

What if all the painful drama over Donald Trump and Mike Flynn and Hillary Clinton and Russians wasn’t really due to Donald Trump or Mike Flynn or Hillary Clinton or Russians? What if the national spectacle the country has endured comes down to one man, James Comey ?

It was certainly all about the former FBI director on Thursday, as he testified to the nation via the Senate Intelligence Committee. Mr. Comey didn’t disappoint. He already had submitted pages of testimony detailing his every second with President Trump, complete with recollections of moments he felt “strange” or “uneasy” or “awkward.” But on Thursday he went further, wowing the media with bold pronouncements: President Trump was a liar; the president fired him to undermine the Russia investigation; the president had directed him to back off Mr. Flynn.

Mostly he pronounced on what is—and is not—proper in any given situation: when handling investigations, interacting with the president, or releasing information. By the end, something had become clear. Mr. Comey was not merely a player in the past year’s palaver. He was the player.

It was Mr. Comey who botched the investigation of Mrs. Clinton by appropriating the authority to exonerate and excoriate her publicly in an inappropriate press event, and then by reopening the probe right before the election. This gave Mrs. Clinton’s supporters a reason to claim they’d been robbed, which in turn stoked the “resistance” that has overrun U.S. politics.

We now know it didn’t have to be this way. Mr. Comey explained that he had lost faith in then-Attorney General Loretta Lynch’s ability to handle the affair, in part because she had directed him to describe the probe in public as a “matter” rather than an “investigation.” That one of President Obama’s political appointees outright directed the head of the FBI to play down an investigation is far more scandalous than any accusation aired about Mr. Trump. Mr. Comey said it gave him a “queasy” feeling. But did he call on Ms. Lynch to recuse herself? Did he demand a special counsel? No. Mr. Comey instead complied with the request. Then he judged that the only proper way to clean up the mess was to flout all the normal FBI protocols. Vive la resistance.

It was Mr. Comey who launched an investigation into Russian meddling last July and expanded it to look for possible collusion with the Trump campaign. That may well have been warranted. Yet before the election his FBI had leaked this to the press, casting an aura of illegitimacy on a new president and feeding conspiracy theories based on, in Mr. Comey’s words, “nonsense” reporting.

Mr. Comey could have spared us this by simply stating, as he acknowledged Thursday, that Mr. Trump wasn’t under investigation. One could argue he had a duty to explain, given that he’d taken the unusual step of confirming the probe, and given the leaks from his FBI and the flood of fake news that resulted. But no. James Comey judged that (in this case, at least) it would be improper to speak out. So we’ve had all Russia all the time. CONTINUE AT SITE

James Comey’s first post-FBI appearance in front of the Senate on Thursday turned out to be a political anticlimax, with no major revelations about the alleged Trump-Russia nexus or the President’s supposed attempt to derail the investigation. But nearly three hours of testimony did expose the methods of the highly political former FBI director.

To wit, Mr. Comey is trying to have it both ways. He worked to leave the impression that Mr. Trump had committed a crime or at least an abuse of power, even as he abdicated his own obligations as a senior law-enforcement officer to report and deter such misconduct.

Mr. Comey confirmed that Mr. Trump never tried to block the FBI’s larger probe of potential Russian entanglement in the election and even encouraged the FBI, noting that “if some of my satellites did something wrong, it’d be good to find that out.” Despite this probative evidence, Mr. Comey claims that in an Oval Office meeting in February Mr. Trump importuned him to close the case on Michael Flynn, the National Security Adviser who had recently been fired for misleading the Vice President.

Mr. Trump, according to Mr. Comey, defended Mr. Flynn, saying “he is a good guy. I hope you can let this go.” Mr. Comey explained that “I took it as a direction to get rid of this investigation.”

But he wouldn’t answer when Senators asked if such a direction was illegal. “I don’t think it’s for me to say whether the conversation I had with the President was an effort to obstruct,” Mr. Comey said. “I took it as a very disturbing thing, very concerning, but that’s a conclusion I’m sure the special counsel will work towards to try and understand what the intention was there, and whether that’s an offense.”

Mr. Comey also admitted that after he was fired he leaked his personal memos about his Trump conversations, via a cutout at Columbia Law School, “because I thought that might prompt the appointment of a special counsel.” So Mr. Comey triggers Robert Mueller’s new assignment and then tosses him responsibility while still intimating that Mr. Trump violated the law.

This legerdemain is an awfully convenient self-defense. The important question is whether Mr. Comey believed Mr. Trump was obstructing justice at the time, and Mr. Comey’s behavior then doesn’t confirm his Senate tale.

Mr. Trump had expressed the same sentiments about Mr. Flynn’s bona fides in public and on Twitter , so his preferences were no secret. But if Mr. Comey really believed Mr. Trump was trying to block the Flynn probe, then he had a legal duty to report Mr. Trump’s conduct to his Justice Department superiors or the White House counsel. Obstruction of justice—intentionally attempting to impede an investigation—is a crime.

Mr. Comey said that he was “so stunned” that he lacked “the presence of mind” even to tell Mr. Trump that his request was improper. But he was able to gain enough composure to write up the experience in the car after the meeting, and to discuss the meeting, by his own testimony, with his chief of staff, the FBI deputy director, the associate deputy director, the general counsel, the deputy director’s chief counsel and the head of the FBI office of national security. But he never informed Attorney General Jeff Sessions, the Deputy AG or any other supervisor.

This abdication is especially remarkable for someone as experienced in the corridors of power as Mr. Comey. This is a government veteran who served three Presidents in senior positions and in 2004 predrafted a letter of resignation as Acting Attorney General to threaten President Bush over wiretapping.

https://www.gatestoneinstitute.org/

The statement may provide political ammunition to Trump opponents, but unless they are willing to stretch James Comey’s words and take Trump’s out of context, and unless they are prepared to abandon important constitutional principles and civil liberties that protect us all, they should not be searching for ways to expand already elastic criminal statutes and shrink enduring constitutional safeguards in a dangerous and futile effort to criminalize political disagreements.

The first casualty of partisan efforts to “get” a political opponent — whether Republicans going after Clinton or Democrats going after Trump — is often civil liberties. All Americans who care about the Constitution and civil liberties must join together to protest efforts to expand existing criminal law to get political opponents.

Today it is Trump. Yesterday it was Clinton. Tomorrow it could be you.

In 1992, then President George Walker Bush pardoned Caspar Weinberger and five other individuals who had been indicted or convicted in connection with the Iran-Contra arms deal. The special prosecutor, Lawrence Walsh, was furious, accusing Bush of stifling his ongoing investigation and suggesting that he may have done it to prevent Weinberger or the others from pointing the finger of blame at Bush himself. The New York Times also reported that the investigation might have pointed to Bush himself.

This is what Walsh said:

“The Iran-contra cover-up, which has continued for more than six years, has now been completed with the pardon of Caspar Weinberger. We will make a full report on our findings to Congress and the public describing the details and extent of this cover-up.”

Yet President Bush was neither charged with obstruction of justice nor impeached. Nor have other presidents who interfered with ongoing investigations or prosecutions been charged with obstruction.

It is true that among the impeachment charges levelled against President Nixon was one for obstructing justice, but Nixon committed the independent crime of instructing his aides to lie to the FBI, which is a violation of section 1001 of the federal criminal code.

It is against the background of this history and precedent that the statement of former FBI Director James must be considered. Comey himself acknowledged that,

“throughout history, some presidents have decided that because ‘problems’ come from Justice, they should try to hold the Department close. But blurring those boundaries ultimately makes the problems worse by undermining public trust in the institutions and their work.”

Comey has also acknowledged that the president had the constitutional authority to fire him for any or no cause. President Donald Trump also had the constitutional authority to order Comey to end the investigation of Flynn. He could have pardoned Flynn, as Bush pardoned Weinberger, thus ending the Flynn investigation, as Bush ended the Iran-Contra investigation. What Trump could not do is what Nixon did: direct his aides to lie to the FBI, or commit other independent crimes. There is no evidence that Trump did that.

With these factors in mind, let’s turn to the Comey statement.

Former FBI Director James Comey’s written statement, which was released in advance of his Thursday testimony before the Senate Intelligence Committee, does not provide evidence that President Trump committed obstruction of justice or any other crime. Indeed it strongly suggests that even under the broadest reasonable definition of obstruction, no such crime was committed.

The crucial conversation occurred in the Oval Office on February 14 between the President and the then director. According to Comey’s contemporaneous memo, the president expressed his opinion that General Flynn “is a good guy.” Comey replied: “He is a good guy.”

The President said the following: “I hope you can see your way clear to letting this thing go.”

Comey understood that to be a reference only to the Flynn investigation and not “the broader investigation into Russia or possible links to the campaign.”

Comey had already told the President that “we were not investigating him personally.”

Comey 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.”

Comey did not say he would “let this go,” and indeed he did not grant the president’s request to do so. Nor did Comey report this conversation to the attorney general or any other prosecutor. He was troubled by what he regarded as a breach of recent traditions of FBI independence from the White House, though he recognized that “throughout history, some presidents have decided that because ‘problems’ come from the Department of Justice, they should try to hold the Department close.”

That is an understatement.

Throughout American history — from Adams to Jefferson to Lincoln to Roosevelt to Kennedy to Obama — presidents have directed (not merely requested) the Justice Department to investigate, prosecute (or not prosecute) specific individuals or categories of individuals.

It is only recently that the tradition of an independent Justice Department and FBI has emerged. But traditions, even salutary ones, cannot form the basis of a criminal charge. It would be far better if our constitution provided for prosecutors who were not part of the executive branch, which is under the direction of the president.

In Great Britain, Israel and other democracies that respect the rule of law, the Director of Public Prosecution or the Attorney General are law enforcement officials who, by law, are independent of the Prime Minister.

But our constitution makes the Attorney General both the chief prosecutor and the chief political adviser to the president on matters of justice and law enforcement.

The president can, as a matter of constitutional law, direct the Attorney General, and his subordinate, the Director of the FBI, tell them what to do, whom to prosecute and whom not to prosecute. Indeed, the president has the constitutional authority to stop the investigation of any person by simply pardoning that person.

Assume, for argument’s sake, that the President had said the following to Comey: “You are no longer authorized to investigate Flynn because I have decided to pardon him.” Would that exercise of the president’s constitutional power to pardon constitute a criminal obstruction of justice? Of course not. Presidents do that all the time.

The first President Bush pardoned Caspar Weinberger, his Secretary of Defense, in the middle of an investigation that could have incriminated Bush. That was not an obstruction and neither would a pardon of Flynn have been a crime. A president cannot be charged with a crime for properly exercising his constitutional authority

For the same reason President Trump cannot be charged with obstruction for firing Comey, which he had the constitutional authority to do.

The Comey statement suggests that one reason the President fired him was because of his refusal or failure to publicly announce that the FBI was not investigating Trump personally. Trump “repeatedly” told Comey to “get that fact out,” and he did not.

If that is true, it is certainly not an obstruction of justice.

Nor is it an obstruction of justice to ask for loyalty from the director of the FBI, who responded “you will get that (‘honest loyalty’) from me.”

Comey understood that he and the President may have understood that vague phrase — “honest loyalty” — differently. But no reasonable interpretation of those ambiguous words would give rise to a crime. 
 Many Trump opponents were hoping that the Comey statement would provide smoking guns.

It has not.

Instead it has weakened an already weak case for obstruction of justice.

The statement may provide political ammunition to Trump opponents, but unless they are willing to stretch Comey’s words and take Trump’s out of context, and unless they are prepared to abandon important constitutional principles and civil liberties that protect us all, they should not be searching for ways to expand already elastic criminal statutes and shrink enduring constitutional safeguards in a dangerous and futile effort to criminalize political disagreements.

The first casualty of partisan efforts to “get” a political opponent — whether Republicans going after Clinton or Democrats going after Trump — is often civil liberties. All Americans who care about the Constitution and civil liberties must join together to protest efforts to expand existing criminal law to get political opponents.

Today it is Trump. Yesterday it was Clinton. Tomorrow it could be you.

Then-Director of the Federal Bureau of Investigation, James Comey, testifies in front of the Senate Judiciary Committee, May 3, 2017, in Washington, DC. (Photo by Eric Thayer/Getty Images)

Alan Dershowitz, Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of “Taking the Stand: My Life in t

I find it difficult to understand how legal experts can read former FBI director James Comey’s submitted testimony and conclude that it makes out a case of felony obstruction of an FBI investigation. That contention was ill-conceived before we saw Comey’s testimony (see, e.g., here, here, and here), and it is even weaker now.

As I’ve tried to explain before, there are two principles at play here. The first is corruption. Perhaps it would help to look at the relevant statute, Section 1505 of the federal penal code (Title 18). It states in relevant part (my italics):

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States [shall be guilty of a crime].

Much of the commentariat assumes than any interference in an investigation equals obstruction. It is simply not true. Criminal statutes do not contain idle words. The word “corruptly” states an essential element of the crime. It is the core of the mental state that prosecutors must prove beyond a reasonable doubt to establish an obstruction offense. This is a technical legal fact; it is not cavalier rhetoric — a word thrown around by a fired-up commentator in a media interview or a partisan lawmaker in a red-hot congressional debate.

As you can see, aside from acting “corruptly,” there are basically two other ways that the crime of obstructing the administration of law can be committed: by a threat or by use of force. Rather than blow by them with ellipses, I left them in the excerpt above so people would not wonder what I was omitting. But they clearly do not apply to our situation. Even on the most extravagant construction of President Trump’s February 14 plea to then-director Comey on Michael Flynn’s behalf — i.e., a vague, implied threat to fire Comey — no serious person is contending that Trump told Comey, in effect, “Do what I want, or else.”

I will also not bog us down in such technicalities as whether there was a “pending proceeding.” Let’s assume there was an active investigation that satisfies this requirement.

Thus, the question boils down to this: Did Trump corruptly influence or endeavor to influence the FBI’s administration of law?

To demonstrate that a person acted corruptly, it is not sufficient to show that he acted intentionally. The act must also be done with an awareness that the conduct in question violates the law. A political official could corruptly impede an investigation by, say, leaning on the police to drop a case because he’s been bribed by the main suspect. Or, if the political official had, say, been in a fraud conspiracy with the main suspect, he might lean on the police to pull the plug on the investigation to stop the suspect from revealing the official’s own culpability. In these instances, the official would be acting to undermine the investigation for a clearly unlawful purpose.

But if the official impeded or halted the investigation for a legitimate purpose, there could be no obstruction. This underscores the importance of the word corruptly. Not all acts to influence, impede, or outright halt an investigation violate the law; only corrupt ones.

So, what would be a legitimate reason to halt an investigation? This brings us to the second important principle: executive discretion.

It is not enough to say the president is the chief executive. In our system, he is the only executive with constitutional power. (“The executive Power shall be vested in a President of the United States of America” —Article II, Section 1.) Every other executive-branch officer is not just subordinate to the president. These inferior officers do not have their own power. The power they exercise is the president’s power. They are mere delegates.

These subordinate executive officials include FBI agents and federal prosecutors. Every day, throughout the United States, these officials exercise executive discretion to shut down investigations or decline prosecutions. Very often, these are cases in which crimes have been committed and a prosecution would be viable.

In our system, it is not mandatory that a viable case be indicted and prosecuted. Instead, in each case, agents and prosecutors weigh the equities: the seriousness of the crime, including the harm to any victims, versus personal considerations relevant to the suspect — his history of criminality or positive contribution to society, whether other negative consequences have befallen him such that prosecution would be overkill, whether there are means other than the criminal law (such as civil suits or community service) that would adequately address the wrongdoing, etc. The Justice Department (of which the FBI is a component) decides, based on the totality of the circumstances, whether further investigation and prosecution are warranted.

In this, again, they are exercising the president’s power. In light of the fact that the president is their superior and the power is his, the president cannot have less discretion than a United States attorney or an FBI supervisor does in weighing the equities and deciding that a case should not be pursued. Charging discretion, moreover, is like the pardon power in this regard: It is a power of the executive that is unreviewable by the courts.

Here is Comey’s recollecton of the president’s remarks about Flynn on February 14:

The President began by saying, “I want to talk about Mike Flynn.” Flynn had resigned the previous day. The President began by saying Flynn hadn’t done anything wrong in speaking with the Russians, but he had to let him go because he had misled the Vice President. He added that he had other concerns about Flynn, which he did not then specify. . . .

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.” (In fact, I had a positive experience dealing with Mike Flynn when he was a colleague as Director of the Defense Intelligence Agency at the beginning of my term at FBI.) I did not say I would “let this go.”

The former FBI director goes on to say he understood that the “this” the president wanted him to “let go” referred to “any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December.” As I discussed last night, the FBI is investigating Flynn for allegedly making untrue statements to agents who interrogated him about his communications with ambassador Sergey Kislyak. Making false statements in that context is a felony.

So, what was the president saying? Basically, that the subject matter of the investigation is not the crime of the century, particularly given that Flynn “hadn’t done anything wrong in speaking with the Russians” — which is true: Flynn was the incoming national-security adviser; establishing relationships with foreign counterparts was among his roles in the Trump transition; and the recordings of his conversations showed he had not given Kislyak any commitments to drop sanctions imposed by President Obama.

Also, Flynn “is a good guy” — a combat veteran who has served his country with courage and distinction. Moreover, Flynn had already “been through a lot” — he had been publicly humiliated by his firing, and his professional prospects had significantly dimmed in light of the public reporting that he had been either incompetent or disingenuous in his briefing of Vice President Pence on the Kislyak conversations.

Which is to say that Trump was doing exactly what prosecutors and agents do: looking at the totality of the circumstances and opining that prosecution would be overkill.

Now, you may disagree with his calculus. But it cannot seriously be said that the calculus is not a legitimate exercise of prosecutorial discretion. Those who claim it is illegitimate political interference in law enforcement misunderstand our constitutional system (and have apparently never heard of the pardon power, in which presidents routinely intrude on law enforcement).

The FBI and Justice Department are not an independent branch of government. They are subordinate to the president, and he gets to prod and even order them to do things. We hope there is not an excess of political interference with the day-to-day enforcement of the laws because that would undermine public confidence in the system on which the rule of law depends — and thus it would probably be impeachable. But nevertheless, the president absolutely has the authority to exercise prosecutorial discretion.

A legitimate exercise of executive power cannot be corrupt. A president does not corruptly impede an investigation by deciding that the equities weigh in favor of halting it. That is a decision the president gets to make.

Finally, it bears emphasizing that it is not the decision Trump made. He told Comey what he hoped would happen, and why. But he did not order Comey to halt the investigation. Plus, Comey did not halt the investigation; it is continuing to this day. Moreover, Comey acknowledges that Trump was speaking narrowly about Flynn. The president did not ask him to shut down the broader “Russia investigation” — meaning the president was not pretextually lobbying for Flynn in an attempt to make his own potential problems disappear.

You can disagree with Trump’s reasoning. You can conclude that browbeating Comey in this fashion was inappropriate. But this clearly was not obstruction — which is no doubt why then-director Comey did not resign or otherwise treat the matter as if he’d just witnessed a crime.

— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.

Dan and Rich have extensively discussed former FBI director James Comey’s written submission of testimony. For now, I would just like to add a point about former national security adviser Michael Flynn — the investigation of whom is the subject of the “obstruction” debate.

We learn from Comey’s testimony that the thrust of the criminal investigation of Flynn involves false statements that he is suspected of making to the FBI, regarding his communications with Russian ambassador Sergey Kislyak. In discussing his February 14 meeting with the president, Comey avers (my italics):

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. I did not understand the President to be talking about the broader investigation into Russia or possible links to his campaign. I could be wrong, but I took him to be focusing on what had just happened with Flynn’s departure and the controversy around his account of his phone calls.

With a grand jury considering evidence in Virginia, there has been speculation that Flynn’s potential criminal problems arise out of the security firm he started after retiring from the military: Did he fail to disclose to the Defense Department speaking fees he collected in a 2015 trip to Russia? Did he fail to register as a foreign agent with the Justice Department for work that benefitted the government of Turkey?

It is now clear that, while these transactions are no doubt being scrutinized, what’s driving the train is a potential false statements charge, under Section 1001 of the federal penal code (a felony punishable by up to five years’ imprisonment).

On that, I hate to say I told you so.

Back in February, I penned a column asking, “Why Was the FBI Investigating General Flynn?” The upshot was that there appeared to be no reason to investigate Flynn as a criminal suspect, and, in particular, to have subjected him to an FBI interrogation after Flynn’s conversations Kislyak. Because Kislyak was being surveilled as a foreign agent of Russia, the FBI already had recordings of these conversations. It was perfectly appropriate for Flynn, as Trump’s prospective national security adviser and a top official in the Trump transition, to be engaging in conversations with foreign counterparts — the point of the transition is to allow the new administration to hit the ground running. Moreover, as an unlawful classified leak to the New York Times made clear, the FBI had determined there was no corrupt quid pro quo in Flynn’s discussion with Kislyak — Obama advisers, according to the Times, pressed the Bureau on whether Flynn made any assurances to Kislyak about withdrawing the sanctions that President Obama had imposed, and the Bureau said no.

Yet, Flynn was treated as if he were a suspect. So hot was the Obama Justice Department to make a case on him, it apparently even considered charging him with a violation of the Logan Act. That is a purported prohibition against freelance engagement in foreign policy by American citizens. Its constitutionality is so dubious that it has never been successfully prosecuted (and almost never invoked) in the two centuries it has been on the books.

The question here was whether the Justice Department wanted Flynn interrogated in the hope that he would not truthfully describe the conversation with Kislyak. Since they had a recording, any inaccuracy could then be charged as a false statement — a classic “process crime.”

I subsequently put it this way:

The government is not supposed to use its FISA surveillance authority to make criminal cases, yet it seems to have been more than willing to ignore that impediment to try to make a case on Flynn. As I’ve previously detailed, the Times report elaborates that the FBI did not just record Flynn’s communications and consult “Obama advisers” on the possibility of charging Flynn – a White House intrusion into law-enforcement that the media would have turned into Watergate if done by a Republican administration. The FBI is also said to have “grilled” Flynn about his communications with Kislyak. Given that the FBI recorded the communications and obviously doesn’t need Flynn to tell them what was said, any competent lawyer would have to wonder whether they “grilled” Flynn in the hope that he would lie about what was said, opening him up to a charge of false statements to investigators – a felony.

Is this what happened? It is a question worth pursuing, especially given that the Justice Department and FBI went out of their way not to make a case on Hillary Clinton and her subordinates, who mishandled classified information and destroyed government files.

To be clear, I do not endorse the misleading of investigating agents. We live in a country where we are privileged to refuse to speak to the police. If you choose to speak, you are obliged to be truthful. I have no idea whether Flynn lied or not; perhaps we will learn at some point.

Nevertheless, law-enforcement is not supposed to subject a person to the processes of a criminal investigation absent a good faith belief that a crime may have occurred. It is abusive to interrogate people, not to uncover a reasonably suspected crime, but to create a new crime.

It is worth asking again: Why was General Flynn, the incoming national security adviser, “grilled” by FBI agents?