The Russia Hoax
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They found that he “flouted rules and deeply engrained traditions, and guaranteed that some people would accuse the FBI of interfering in the election.”1 Indeed, many Americans did. For this, he was appropriately fired.
But Comey was unchastened and determined to avenge the indignity of his dismissal. The notion of how to do it came to him, he said, when he awakened “in the middle of the night.”2 He resolved to leak government documents he had furtively taken from FBI headquarters to harm President Trump. It was an act of shameless hypocrisy, since Comey had promised the president, “I don’t do sneaking things, I don’t leak, I don’t do weasel moves.”3 Thus, the man who had previously been asked to enforce the law against leakers, became a notorious leaker himself.
He also became the chief witness in a politically motivated, albeit misguided, attempt to accuse the president of obstructing justice. Comey fashioned himself the innocent victim in what became, at its core, a clever plan to incriminate Trump for words and deeds that bore no resemblance to the law of obstruction.
Trump Did Not Obstruct Flynn Case
The day after the February 13, 2017, resignation of national security adviser Michael Flynn, a national security meeting was convened in the Oval Office at the White House. Vice President Mike Pence, FBI director James Comey, Attorney General Jeff Sessions, and other senior security officials attended. According to Comey, President Trump asked the FBI director to remain behind as others departed. A conversation allegedly ensued in which the Flynn case was discussed. Here is Comey’s account as told to the Senate Select Committee on Intelligence when he testified four months later:
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.”4
Comey’s story of what Trump is supposed to have said was contained in a memorandum composed by the director. After he was fired, he arranged for it to be delivered secretly to the New York Times. Comey did not want to leak it himself, so he gave his memo to a friend—a law professor—with instructions that it be surreptitiously conveyed to the media.5 It was a quintessential maneuver by Comey—sneaky, underhanded, and self-serving. He wanted to damage Trump after being sacked, but didn’t want to dirty his own hands with the actual deed.
Later, during his Senate Intelligence Committee testimony, Comey came clean, perhaps realizing that he would eventually be found out and did not want to run the risk of perjuring himself. But along with his admission, he offered an astonishing explanation for his motivation: he did it for the sole purpose of triggering the appointment of a special counsel in a blatant effort to manipulate the legal process against Trump.6 He bragged about what he’d managed to accomplish. If ever there was an act of retribution or vengeance, this was it. But it also constituted an apparent crime by Comey, which will be discussed later in this chapter.
Thanks to Comey’s engineered leak, the mainstream media immediately ran stories claiming that Trump’s remarks were evidence of obstruction of justice for attempting to derail any investigation into Flynn’s conduct.7 But wait, what investigation? When Comey met with Trump, the director already knew that Flynn had told the truth when he was interviewed by FBI agents in January. The investigation should have been closed. Why wasn’t Comey honest and forthright with Trump by telling him that Flynn had largely been cleared by his agents of any wrongdoing? Flynn’s conversations were perfectly legal and not a violation of the Logan Act, which Comey surely knew. And Flynn’s responses to the agents who questioned him were deemed by them to be truthful, which Comey also knew.
Comey’s unconscionable deception leaves three possibilities. First, there never was a conversation with Trump about the fired NSA, meaning Comey invented it to harm Trump. Second, Comey embellished his account of what was said. Or, third, there was a discussion about Flynn facing legal jeopardy, but Comey concealed the fact that Flynn had done nothing that violated the law. In each case, Comey appears to have been dishonest.
The White House responded to Comey’s leak by denying the conversation, stating “while the president has repeatedly expressed his view that General Flynn is a decent man who served and protected our country, the President has never asked Mr. Comey or anyone else to end any investigation, including any investigation involving General Flynn.” The statement went on to say, “This is not a truthful or accurate portrayal of the conversation between the President and Mr. Comey.”8 Months later, Trump repeated his denial when he tweeted, “I never asked Comey to stop investigating Flynn. Just more Fake News covering another Comey lie!”9
Comey’s testimony about his conversation with Trump prompted widespread speculation among Democrats and the media that the former director’s good friend Robert Mueller would use his appointment as special counsel to bring charges against the president for obstruction of justice or, at the very least, a report that could be used for impeachment proceedings by Congress. Senator Dianne Feinstein, who is not a lawyer but is the top Democrat on the Senate Judiciary Committee, surmised, “what we’re beginning to see is the putting together of a case of obstruction of justice.”10 Feinstein should have gone to law school.
Obstruction of justice is defined in a series of statutes, the most relevant of which is 18 U.S.C. 1505:
Whoever corruptly . . . 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 fined under this title, imprisoned not more than 5 years, or both.11
A “pending proceeding” would include an FBI investigation. As noted in chapter 2, the operative word in the statute is “corruptly.” Because it is a somewhat fungible term that can be subject to varying interpretations, it was given an explicit meaning in a subsequent code section, 18 U.S.C. 1515(b), which also included examples of specific acts that would constitute behaving “corruptly”:
As used in section 1505, the term “corruptly” means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.12
Assuming Comey’s account of what Trump said is true on its face, the president’s words or actions do not satisfy any of the examples of a “corrupt” or “improper” purpose stated in the statute. No false statements, no withholding or concealing, and no altering or destroying evidence have been alleged by Comey or anyone else. Did Trump do any of those things or ask the director to do them? Reread Comey’s statement. The answer is no.
Obstruction of justice is a specific intent crime, which means a person must specifically intend to obstruct or interfere with an investigation. Proof is dependent on the precise consciousness and purpose of the actor, in this case, Trump. There was nothing specific in the words the president allegedly used. His allusions to Flynn were vague and ambiguous. They could be interpreted in a variety of ways and with different meanings.
Obstruction is an easy accusation for someone like Feinstein and the media to throw around, but it is exceedingly difficult for a prosecutor to prove in a court of law because the wording of the statute is exact and unequivocal. Indeed, courts have interpreted it quite narrowly. The U.S. Supreme Court, in the case of Arthur Andersen v. United States, defined the term “corruptly” as it applies to a companion obstruction statute (18 U.S.C. 1512) as follows: “wrongful, immoral, depraved, or evil.”13 The high court ruled that consciousness of wrongdoing is required.
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��s compare this to the words allegedly uttered by Trump. The president is supposed to have said, “I hope you can see your way clear to letting this go, to letting Flynn go. He’s a good guy. I hope you can let this go.” Trump’s statement bears no resemblance to the requirements of the statute or the Supreme Court explanation of a corrupt purpose. There is no lie, threat, or bribe, and no pernicious act. Trump’s words were not “immoral, depraved or evil” in any sense. Under no legal interpretation could the president have obstructed justice.
Former Special Assistant U.S. Attorney at the Department of Justice Fred Tecce argues that the president’s remarks do not come close to satisfying the legal requirements of obstruction of justice:
At the time of the conversation with Comey, the FBI Director was aware that Flynn had been truthful with the FBI—Trump didn’t know that, but Comey did. So, it begs the question as to how Trump could form the requisite intent to corruptly influence an investigation that at that point was not even an investigation or, at best, had revealed that Flynn had done nothing wrong.
Trump’s words were aspirational. How Comey took them is of no avail. The question is Trump’s state of mind at the time and these words fail to indicate any intent to corruptly obstruct or impede anything.14
Hoping or wishing for an outcome is not the same as directing or ordering someone to end an investigation or clear a suspect.
By contrast, if the president had said, “Bury whatever incriminating evidence you might have, exonerate Flynn and end the investigation of him entirely or you are fired,” that might, arguably, constitute obstruction of justice. It would include two “corrupt” elements—a threat and concealing evidence. It would also be regarded as an edict or mandate to stop the Flynn investigation.
Of course, this analysis ignores the fact that the president denied he ever spoke the words ascribed to him. With no known witnesses to corroborate Comey’s claim, a prosecutor would be loath to consider bringing such a case based on one person’s word. It is the definition of reasonable doubt.
President Trump’s remarks about Flynn, if true, were not a directive to drop the investigation of him. It was not even a request, although Comey claimed he perceived it to be. His perception of what he heard is not, under the law, what proves obstruction; it is the specific intent of the speaker. In his introductory statement to the Senate Intelligence Committee, Comey asserted, “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.”15 How Comey interpreted the president’s words is irrelevant. As the statute makes plain, the intent of the person speaking the words proves obstruction, not how the listener may construe it.
Comey was schooled in the law and knew that his story of the Oval Office meeting was not obstruction of justice at all. During his Intelligence Committee appearance, Senator James Risch posed the key question:
SEN. RISCH: 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: I don’t know well enough to answer. The reason I keep saying his words is I took it as a direction.16
Comey’s answer was a misdirection. He claimed he really couldn’t answer, then shifted to how he interpreted the president’s words, which is irrelevant under the obstruction statute. Senator Risch continued to pursue the issue:
SEN. RISCH: You don’t know of anyone ever being charged for hoping something, is that a fair statement?
COMEY: I don’t as I sit here.17
Intelligence Committee chairman Senator Richard Burr asked Comey quite directly whether he thought the president was trying to obstruct justice. As expected, Comey demurred by claiming, “I don’t think it’s for me to say whether the conversation I had with the president was an effort to obstruct.”18 His response was curious. Comey was all too willing to usurp the authority of the attorney general in deciding that Clinton broke no laws, but was reluctant to say whether Trump did. While there was no legal basis for declining to answer the pivotal question, Comey dodged the answer for a reason. If he had said, under oath, that he regarded the president’s words as obstruction, Comey might have incriminated himself in a crime known as “misprision of felony” (18 U.S.C. 4).19
Misprision of a felony is similar to aiding and abetting a crime or accessory after the fact. It requires a showing that someone has knowledge of a felony and conceals it. What constitutes concealment? The case most often cited, Neal v. United States, stated: “there must be a concealment of something such as suppression of the evidence or other positive act.”20 In that case, evidence of a theft crime was allegedly stored or concealed in a golf bag.
Comey composed his memo and stored it somewhere until he was fired as FBI director. He either kept it at his home or took it with him when he was terminated. Either way, he considered it to be of significant value. One could argue that he regarded the memo as evidence of a felony (obstruction) and took affirmative steps to suppress it until he later chose to leak it to the media.
Which is more likely: Comey thought he would get away with misprision of a felony, or he thought the memo looked bad enough to be used as a political shield if he’s ever fired? Why did he wait several months and only after he was cashiered to act on his memo?
People who serve in law enforcement have a special duty to immediately report knowledge of a felony to a person of higher authority, not simply bury it somewhere in a file or take it home to use sometime in the future for blackmail or retribution. The FBI director’s superior is the deputy attorney general at the Department of Justice. In his testimony, Comey admitted he did not inform anyone at the DOJ.21 His excuse was that he did not think the deputy AG would be in that position for very long, which is no excuse at all. Thus, it is reasonable to conclude that Comey did not believe the president obstructed justice and he, therefore, had no duty to report it.
Comey was pressed on this issue during his hearing. Unbelievably, he claimed he did not know whether FBI officials have a duty to report a crime that has been committed:
QUESTION: You’re unsure whether they would have a legal duty?
COMEY: That’s a good question. I’ve not thought about that before. There is a statute that prohibits misprision of a felony—knowing of a felony and taking steps to conceal it. But this is a different question. Let me be clear, I would expect any FBI agent who has information about a crime to report it.22
Comey expected his agents to report evidence of crimes, yet he did not do so himself. He filed away his memo, took no action, and never informed the Justice Department. His actions indicate he knew his memo was not evidence of a crime. He well recognized that the president’s comments about Flynn did not have a “corrupt” or “improper purpose” and were never intended to obstruct or impede an investigation that had already found no wrongdoing by the national security adviser.
Comey’s memo was treated as a “smoking gun” only because the media and Democrats, prompted by the former director himself, peddled it that way. At most, the Oval Office conversation was an uncomfortable encounter. But that did not stop Comey from exploiting it later to smear the man who fired him. In this respect, the ex-director succeeded.
Although the president’s supposed remarks about Flynn appeared to be more of an observation than an order, Trump could have ordered Comey to end any criminal pursuit of his former NSA and been acting well within his authority to do so. This was conceded by Comey during his testimony when he endorsed what many constitutional scholars have long maintained. That is, the president has broad constitutional powers to stop investigations and potential prosecutions:
I am not a legal scholar, but as a legal matter, the president is the head of the executive branch and could direct, in theory . . . anyone being investigated or not. I think he has the legal authority. All of us ultimately report in the executive branch to the president.23
On this point, Comey was right. Article II of the Constitution contains what is known as the “vesting clause.” It states, “The executive Power shall be vested in a President of the United States.”24 This means he has full power over the executive branch of government and his decisions are not subject to congressional restraint. He can direct any agency or department to take whatever course of action he deems appropriate or, in the alternative, to refrain from taking action. In this case, Trump was empowered to order Comey to end his pursuit of Flynn, although that is not what he did.
Alan Dershowitz, professor at Harvard Law School and a prominent constitutional scholar, argued that Trump’s actions were perfectly permissible and historically supported:
Until recently, presidents—from Adams to Jefferson to Lincoln to Roosevelt to Kennedy—played active roles in deciding who to investigate and prosecute. In recent years a tradition had developed under which the FBI and the criminal division of the Justice Department were more independent of the White House. But this tradition did not and could not limit the constitutional authority of the president, especially in the absence of legislation.
It is clear, therefore, that Trump acted within his constitutional authority if he directed Comey to end his investigation of Flynn. It follows from this that he certainly acted within his authority if he merely requested or hoped that Comey stand down.25
Dershowitz was wise to emphasize the importance of presidential precedent. No one ever accused President Obama of obstructing justice when, in a televised interview on Fox News, he acknowledged that Hillary Clinton was “careless” in mishandling classified documents, but insisted she did not jeopardize national security.26 This was a thinly disguised statement to the FBI and the Justice Department that he did not want her to be prosecuted. He did not “hope” or “wish” that she be cleared. Obama articulated a very specific statement tailored to the law that his former secretary of state should be absolved of any wrongdoing. He didn’t need to issue a direct order to Comey or Attorney General Loretta Lynch. His nationally televised words conveyed the unmistakable message not to bring criminal charges against Clinton, incriminating evidence notwithstanding.