There have been many bad news days already for the still-young Trump Administration. Thursday was yet another terrible one. Former FBI Director James Comey's testimony before the U.S. Senate Select Committee on Intelligence was devastating. Whether or not his remarks revealed crimes by the President—more on that below—it revealed a President who freely lies about matters of great public import, and who either thoroughly misunderstands or knowingly violated deeply important norms that keep federal law enforcement free from political interference.
Comey, of course, was fired by President Trump from his post in May. The White House initially claimed the firing was due to Comey's controversial handling last summer and fall of the criminal investigation into Hillary Clinton's private email server. But President Trump soon admitted publicly that he had in fact fired Comey due to his dissatisfaction with the FBI's investigation into Russia's interference with the presidential election and possible collusion between the Trump campaign and Russia.
Comey, it should be noted, is a life-long Republican. He reportedly donated to the John McCain and Mitt Romney presidential campaigns in 2008 and 2012, respectively. He held a senior position in the George W. Bush administration. As FBI director, Comey decided to drop his Republican party registration, apparently due to the need for the director to be perceived as apolitical. Comey has been criticized by both left and right for his handling of the Clinton email matter during the 2016 presidential campaign. But everybody agrees that Comey is a straight shooter—as honest as they come—and a devoutly committed public servant.
So Comey's testimony on Thursday about Trump (and other matters) is highly credible. No one argues that he is misreporting the facts. What are those facts?
- From the beginning, Comey did not trust Trump and the people around him and so took contemporaneous notes of conversations because he feared that Trump or his team might later lie about what occurred.
- Comey stated that Trump had told "lies" to the American people when he claimed the FBI was in disarray and that FBI agents had lost confidence in Comey. (This and all other quotations and transcriptions are mine.)
- During a one-on-one dinner meeting requested by Trump, the President demanded that Comey pledge personal loyalty to him. Comey demurred. (Comey also testified that Trump's later claim that Comey asked for this meeting in order to request that he keep his job was another lie. Trump asked for the meeting, and the President had previously told Comey that he wanted him to remain as FBI Director.)
- The day after National Security Adviser Michael Flynn was fired, as a result of news reports that Flynn had lied about his pre-inauguration communications with the Russian ambassador, Trump cleared everyone out of an Oval Office meeting so he could tell Comey alone that he hoped the FBI would drop its investigation of Flynn.
- In the context, Comey perceived this as an "order" from the President.
- Comey, of course, did not drop the investigation of Flynn, or the larger investigation.
- Trump later called Comey twice to complain about "the cloud" the Russia investigation was casting over the presidency and him personally, and asked Comey to make public statements that Trump was not personally being investigated into order to "lift the cloud."
- The Russia investigation—the cloud—continued. Trump then fired Comey. Why?, he was asked. Comey (my transcription): "I take the President at his word that I was fired because of the Russia investigation."
- Comey was repeatedly "stunned, "troubled," "concern[ed]" and "shocked" by the President's behavior.
There are so many extraordinary and disturbing things about the President's conduct that it is hard to know where to start.
It may not come as a surprise anymore to hear it said that Trump frequently lies. But it should matter that such behavior was confirmed today, beyond any reasonable doubt, by one of the most credible people in public life. And these were not lies as a private citizen, or about private business or personal peccadilloes. These were lies as told in his role as President about matters of public importance.
Congress gave the FBI Director a 10-year term in office because, in the wake of the Watergate scandal in the 1970s, it wanted to protect the FBI from interference or instruction by the White House. Congress and the American people overwhelmingly agreed that federal law enforcement needed to be apolitical and independent. Trump has flouted that norm in an extraordinarily damaging fashion.
The President's claim that Comey has vindicated him is incorrect. Comey did say that Trump "personally" was not the subject or target of an FBI investigation, and that Comey had communicated this to the President. But Comey also testified that Trump’s conduct fell within “the scope of” the FBI investigation. More than that, we know from Comey and other sources that Trump's presidential campaign, his former campaign manager, other campaign staff, Trump businesses, and other Trump associates on the campaign and in government, including Trump's son-in-law and his former national security adviser, are being investigated by the FBI and federal prosecutors.
Comey would not comment on whether Trump's actions constituted the crime of obstruction of justice. He left that call to Robert Mueller, the recently-appointed special counsel overseeing the Trump-Russia investigation. Whether or not Mueller might ever bring such a charge, enough is now known to say that the charge would be legally supported.
But we must remember not to focus too narrowly on whether crimes were committed. Of course it matters whether the President committed the crime of obstruction of justice. But it also matters whether he abused the power of his office, defied norms protecting the rule of law, or behaved unethically, even if those actions do not constitute crimes.
The language of criminal law is coming to dominate the discussion to an unfortunate degree, as political commentator David Frum and others have noted. Whether or not there was secret "collusion" between the Trump campaign and elements of the Russian intelligence services, and whether or not those secret dealings—if they occurred—constituted crimes, much damning information is already public. There was clearly a kind of public collusion by Trump and his campaign with the Russian hacking. "I love Wikileaks," Trump liked to say on the campaign trail. “Russia, if you’re listening," he said, I hope you hack Hillary Clinton's emails. He and his campaign surrogates talked incessantly about the leaked materials. And Trump fired his FBI Director to try to stymie an investigation into Trump-Russia connections.
In the face of the unanimous opinion of the U.S. intelligence community that Russia was behind the hacking, Trump as President has continued to cast doubt on that. Comey's testimony emphasized that Russia's attack on the U.S. election was a really "big deal." And "they are coming after America" and its democracy again, he said. Comey was asked by several senators whether Trump seemed to be interested or concerned about Russia's misconduct or the threat Russia posed. Comey gave long answers that can be summarized with one word: no. Although the list is long, that may have been the most troubling thing America learned today about its President.
Andrew Kent is a professor of law at Fordham University School of Law in New York City.