Thursday, 08 June 2017

Comey's Testimony: A Study in Contradictions

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In his sworn testimony before the Senate Intelligence Committee Thursday, former FBI Director James Comey directly contradicted his previous sworn testimony from May 3. Not only that, but he made conflicting remarks in Thursday's testimony.

In his May 3 testimony, Comey said — under oath and on camera — that no one had ever told him to kill an investigation. In Thursday’s testimony, he said that President Trump had done just that, by telling him to drop the investigation into Michael Flynn and that Attorney General Loretta Lynch told him not to call the Clinton e-mail investigation an “investigation,” but to refer to it as a “matter.”

The issue here comes down to two things: The first is the independence of the FBI from the political process — a principle Comey repeatedly mentioned in his testimony Thursday. The second is that — when under oath, a witness is only required to answer the questions that he is asked, however, if he goes beyond that, he is still under oath and everything he says must be true.

The question Comey was answering on May 3 was from Senator Mazie Hirono (D-Hawaii). That question was, “So, if the Attorney General or senior officials at the Department of Justice opposes a specific investigation, can they halt that FBI investigation?” Comey answered, “In theory? Yes.” Hirono followed up with, “Has it happened?” Comey’s answer was, “Not in my experience.” He went on to say:

Because it would be a big deal to tell the FBI to stop doing something that — without an appropriate purpose. I mean, we’re oftentimes — they give us opinions that “we don’t see a case there and so, you ought to stop investing resources in it.” But I’m talking about a situation where we were told to stop something for a political reason. That would be a very big deal. It’s not happened in my experience.

But, while answering questions posed by members of the Senate Intelligence Committee Thursday, Comey contradicted that previous testimony. He said that when President Trump told him to remain behind after a meeting in the Oval Office on February 14, Trump directed him to drop the investigation into former Security Advisor Michael Flynn. In his prepared statement, which was made available to both the committee and the public on Wednesday and was considered part of his sworn testimony, Comey wrote:

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."

And:

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. Regardless, it was very concerning, given the FBI's role as an independent investigative agency.

In his oral testimony before the committee, Comey was asked repeatedly about that conversation — specifically about the president’s choice of words and how Comey interpreted them. He testified that he took “I hope” as “direction,” “a directive,” and as “an order.” In his exchange with Senator Jim Risch (R-Idaho), Comey vacillated back and forth between admitting that Trump did not order him to drop the investigation and claiming that he took it as “direction.”

Risch — who, like Comey, is a former prosecuter — asked Comey, “There's 28 words now in quotes. It says, quote, 'I hope' — this is the president speaking — 'I hope you can see your way clear to letting this go, to letting Flynn go. He is good guy. I hope you can let this go.' Now, those are his exact words, is that correct?”

After Comey agreed that it was correct, Risch replied:

He said, "I hope." Now, like me, you probably did hundreds of cases, maybe thousands of cases, charging people with criminal offenses and, of course, you have knowledge of the thousands of cases out there where people have been charged. Do you know of any case where a person has been charged for obstruction of justice or, for that matter, any other criminal offense, where they said or thought they hoped for an outcome?

Comey answered, “I don't know well enough to answer. The reason I keep saying his words is I took it as a direction,” adding, “I mean, this is a president of the United States with me alone saying 'I hope this.' I took it as, this is what he wants me to do. I didn't obey that, but that's the way I took it.”

Risch called Comey out, saying, “You may have taken it as a direction but that's not what he said.” Comey’s one-word reply was, “Correct.”

The next senator to question Comey was Dianne Feinstein (D-Calif.), who revisited the issue and gave Comey a chance to reverse what he had just admitted. She said, “You also said in your written remarks, and I quote, that you '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.' Please go into that with more detail.”

Comey, seeming to forget that he had just admitted thet the president did not order him to do anything, said, “Well, the context and the president's word are what led me to that conclusion,” adding, “I understood what he wanted me to do was drop any investigation connected to Flynn's account of his conversations with the Russians.”

Comey also revealed that Attorney General Loretta Lynch had told him not to call the investigation into Hillary Clinton’s illegal use of a private e-mail server an “investigation,” but to use the word “matter.” He had been asked by Chairman Richard Burr (R-N.C.) about whether his decision to go public with the details of the Clinton e-mail investigation was “influenced by the Attorney General's tarmac meeting with the former president, Bill Clinton?” Comey said it was because he felt he “had to do something separately to protect the credibility of the investigation, which meant both the FBI and the Justice Department.”

Burr asked if there were “other things that contributed to that, that you can describe in an open session?” Comey answered, “Probably the only other consideration that I guess I can talk about in open setting is that at one point the attorney general had directed me not to call it an investigation, but instead to call it a matter, which confused me and concerned me, but that was one of the bricks in the load that led me to conclude I have to step away from the department if we're to close this case credibly.”

He made similar statements when Senator John Cornyn (R-Texas) asked follow-up questions on that topic, going so far as to agree with Cornyn that he believed Lynch “had an appearance of a conflict of interest on the Clinton e-mail investigation,” saying, “That’s fair. I didn't believe she could credibly decline that investigation. At least not without grievous damage to the Department of Justice and to the FBI.”

Regardless of whether Comey was correct in his assumptions about either Lynch or Trump, the fact is that — according to his testimony Thursday — he believed both of them had attempted to stop investigations “for political reasons.” And — again, according to his testimony — he believed that on May 3 when he testified under oath that “a situation where we were told to stop something for a political reason” had “not happened” in his “experience.”

While his nuanced way of answering the questions probably doesn’t allow his inconsistencies and contradictions to rise to the level of perjury, one thing is certain: If the former FBI director can’t keep the facts any straighter than that, it is a very good thing President Trump fired him.

Photo of Sen. James Rich (left) and James Comey: screen-grab from C-Span broadcast of the testimony

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