The Comey Show: Will there be fireworks? Not if he follows the law

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Inside the Beltway, the lions of media and politics have wound themselves to a state of near hysteria over former FBI Director James B. Comey’s appearance before the Senate Intelligence Committee Thursday morning. But those expecting explosive political revelations may be disappointed if Comey follows the law and the rules and regulations governing his testimony.

Various Justice Department and FBI officials have said their investigation of possible Russian involvement in our election is ongoing. [Note: to date, no one has produced any evidence that anyone in the Trump administration engaged in any type of “collusion” with Russian officials. Moreover, former Obama Department of Homeland Security Secretary Jeh Johnson has stated that DHS “saw no evidence that hacking by any actor altered the ballot count or any cyber actions that deprived people of voting.” So it seems there was no actual interference with the election process.]

But, everyone should understand that as the former head of the FBI, Comey cannot reveal the details of an ongoing investigation. That rule is in place to prevent testimony that might damage an investigation and potential prosecution as well as the reputations of individuals who are being targeted by the government.

All of these exemptions mean that Comey would be committing a serious breach of the rules if he reveals the kind of details about the Russian investigation that the press is apparently hungering for.

That is why, for example, the federal Freedom of Information Act, 5 U.S.C. §552, has a huge exemption that allows the government to avoid publicly disclosing any “records or information compiled for law enforcement purposes” if such disclosure “(A) could reasonably be expected to interfere with law enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy,” or would reveal confidential sources or law enforcement techniques and procedures.

All of these exemptions mean that Comey would be committing a serious breach of the rules if he reveals the kind of details about the Russian investigation that the press is apparently hungering for.

The key issue that has the news media salivating over Thursday’s hearing is the question of obstruction of justice: Did President Trump violate the law and order James Comey to end the investigation of Michael Flynn?

The New York Times reported on May 16 that Comey had written a memorandum to the file (known in Washington circles as a CYA memo) claiming that in a February meeting in the Oval Office, Trump asked Comey if he could “let this go,” referring to the Flynn investigation.  Comey’s written testimony, released on Wednesday, claims that Trump told Comey at a dinner in January that he needs “loyalty.”

Of course, the problem with the New York Times story is that Comey was asked under oath in a Senate hearing in early May whether any higher ups had asked him to halt his FBI investigation. His answer to Sen. Mazie Hirono (D-Hawaii) was that it had “not happened.”  In fact, Comey said, “It would be a big deal to tell the FBI to stop doing something.”  That had never happened in his experience.

If Comey now suddenly claims that he was asked to stop the investigation, he has a real problem: his new sworn testimony would contradict his previous sworn testimony. That would be difficult to explain away.

Reporters and others are also throwing around the term “obstruction of justice” without apparently knowing very much about it.  The federal code contains 22 different statutes banning various types of behavior considered to be obstruction of justice.  They range from attempts to influence jurors to witness tampering.

The only provision that comes even marginally close to the conversation that the New York Times describes is 18 U.S.C. §1503.  The second half of this statute prohibits anyone from “corruptly, or by threats or force, or by any threatening letter or communication” from attempting “to influence, obstruct, or impede, the due administration of justice.”

While that is very broad language, paraphrasing James Comey when he closed the Clinton email investigation, I don’t think any reasonable prosecutor would take this case.  While this entire episode may well cause the president political problems, it is quite a stretch, at least at this point, to claim that this constitutes obstruction of justice—a crime that is usually accompanied by explicit threats or bribes or by the willful destruction of evidence.

To begin with, it would be “the president’s word” vs. “the FBI director’s word” on what happened in the Oval Office.  Even if true, the president telling Comey he hoped the director could ‘let it go” is not an order to drop an investigation. It can be reasonably construed as the president thinking there is no reasonable basis to believe that there had been a violation of the law and therefore no basis for the FBI continuing its investigation.  Given the ambiguity of this, any good defense attorney would likely tear the prosecution to shreds. And Comey would have to explain why he changed his story when he was testifying before Congress.

And loyalty?  Presidents ask for and should get loyalty from all of their subordinates in the executive branch.  A general conversation about the importance of loyalty does not come even close to being an attempt to obstruct or “impede the administration of justice.”

All this could change if more evidence is produced about what actually happened.  But based on what we know now, there does not seem to be enough evidence that a prosecutor could take to court.  And Comey’s testimony Thursday is unlikely to change that.