FBI Director James Comey delivered his long-awaited testimony to the Senate Intelligence Committee today. There are at least two significant timeline issues with Comey’s testimony.
Marco Rubio’s questioning summed up the hearing succinctly and in the most salient manner:
RUBIO: What it comes down to is the president asked three things of you. Asked for your loyalty. You said you’d be loyally honest.
COMEY: Honestly loyal.
RUBIO: Honestly loyal. He asked you on one occasion to let the Mike Flynn thing go because he was a good guy. By the way, you’re aware he said the same thing in the press the next day. He is a good guy, treated unfairly, et cetera. I imagine your FBI agents read that.
COMEY: I’m sure they did.
RUBIO: The president’s wishes were known to them, certainly by the next day when he had a press conference with the prime minister. Going back, the three requests were, number one, be loyal. Number two, let the Mike Flynn thing go. He is a good guy, been treated unfairly. Number three, can you please tell the American people what these leaders in congress already know, which you already know and what you told me three times, that I’m not under personally under investigation.
COMEY: That’s right.
RUBIO: We learn more from the newspaper sometimes than the open hearings. Do you ever wonder why, of all the things in the investigation, the only thing never leaked is the fact the president was never personally under investigation, despite the fact that Democrats and Republicans and the leadership of congress have known that for weeks?
Rubio’s question/statement “the only thing never leaked is the fact the president was never personally under investigation” is worth bearing in mind while reviewing the rest of Comey’s testimony. It’s also worth keeping in mind that Congressional leadership has obviously known for some time that President Trump was not under investigation – despite public comments by Democratic members to the contrary.
Now we move on to the two problems with Comey’s timeline.
The first starts with Comey’s reasoning in not informing Attorney General Jeff Sessions of Comey’s concerns regarding the February 14 2017 conversation about Mike Flynn.
Comey spoke with President Trump on February 14 2017 about Mike Flynn. Comey states in both his public testimony and his submitted written opening statement that he believed Attorney General Sessions would be forced to recuse himself. This was his excuse for not telling Sessions immediately of the comments President Trump made about Flynn at the 2/14 meeting. Attorney General Jeff Sessions recused himself from the Russia Investigation on March 2 2017.
How is it possible that Comey knew more than two weeks in advance that Sessions would recuse himself – before Sessions himself knew? Note also, Rubio correctly points out that President Trump makes the same statements about Mike Flynn the next day [2/15] publicly.
COMEY: And then the conversation turned to what should we do with this information? And that was a struggle for us, because we are the leaders of the FBI. So it’s been reported to us, in that I heard it and now I’ve shared it with the leaders of the FBI — our — our conversation was, should we share this with any senior officials at the Justice Department?
Our — our absolute primary concern was, we can’t infect the investigative team. We don’t want the agents and analysts working on this to know the president of the United States has — has asked — and when it comes from the president, I took it as a direction — to get rid of this investigation, because we’re not going to follow that — that request.
And so we decided we gotta keep it away from our troops. But is there anybody else we ought to tell at the Justice Department? And, as I laid out in my — in my statement, we considered whether to tell the attorney general, decided that didn’t make sense because we believed, rightly, that he was shortly going to recuse.
I can think of two possible answers.
Comey manufactured his timeline with hindsight. He did not tell Sessions of the Flynn conversation at the time because he either did not find the conversation that important – or Comey didn’t want Sessions to inform President Trump of his concerns.
Or
Comey was the source of the leak – or aware the leak would occur – over Jeff Sessions’ meetings with the Russian Ambassador – which led to Session’s recusal.
Then we have the timeline problem with Comey’s self professed leaking.
Comey testifies that he leaked the memo on or after May 15 2017 – in response to a May 12 2017 tweet from President Trump. While it is true that the New York Times runs an article on May 16 2017 claiming Comey Memo Says Trump Asks Him to End Flynn Investigation, the Times also runs a story on May 11 2017 claiming President Trump demanded loyalty from Comey. President Trump fired Comey on May 9 2017.
Comey’s comments on leaking the memo:
COLLINS: Finally, did you show copies of your memos to anyone outside of the department of justice?
COMEY: Yes.
COLLINS: And to whom did you show copies?
COMEY: I asked — the president tweeted on Friday [5/12] after I got fired that I better hope there’s not tapes. I woke up in the middle of the night on Monday night [5/15] because it didn’t dawn on me originally, that there might be corroboration for our conversation. There might a tape. My judgment was, I need to get that out into the public square. I asked a friend of mine to share the content of the memo with a reporter. Didn’t do it myself for a variety of reasons. I asked him to because I thought that might prompt the appointment of a special counsel. I asked a close friend to do it.
COLLINS: Was that Mr. Wittes?
COMEY: No.
COLLINS: Who was it?
COMEY: A close friend who is a professor at Columbia law school.
This problem with this timeline presented by Comey was also picked up on by President Trump’s lawyer as he noted in his statement:
“Although Mr. Comey testified he only leaked the memos in response to a tweet, the public record reveals that the New York Times was quoting from these memos the day before the referenced tweet, which belies Mr. Comey’s excuse for this unauthorized disclosure of privileged information and appears to entirely retaliatory. We will leave it the appropriate authorities to determine whether this leaks should be investigated along with all those others being investigated.”
Comey leaked his memo with the direct intention of prompting the appointment of the Special Counsel – despite Congress never having seen the memo. He did so in direct retaliation for his firing – not in response to a tweet from President Trump. To the contrary, President Trump tweeted about “tapes” in response to the leak by Comey.
It is unclear if this memo should be considered classified or not. No one else has seen this memo. Comey is not certain he can produce it.
Comey’s comments on producing the memo:
LANKFORD: The individual that you told about your memos, that then were sent on to The New York Times, did you have a copy of the memos or told orally?
COMEY: Had a copy at the time.
LANKFORD: Do they still have a copy of those memos?
COMEY: Good question. I think so. I guess I can’t say for sure sitting here, but — I guess I don’t know. But I think so.
LANKFORD: So the question is, could you ask them to hand that copyright back to you so you can hand them over to this committee?
COMEY: Potentially.
LANKFORD: I would like to move that from potentially to seeing if we can ask that question so we can have a copy of those. Obviously, the notes are really important to us, so we can continue to get to the facts as we see it. The written documents are exceptionally important.
COMEY: Yeah.
Other salient points:
President Trump was never under investigation:
RISCH: I gather from all this that you’re willing to say now that, while you were director, the president of the United States was not under investigation. Is that a fair statement?
COMEY: That’s correct.
Russia interfered in the Election:
BURR: Do you have any doubt that Russia attempted to interfere in the 2016 elections?
COMEY: None.
No votes were altered in the Election:
BURR: Are you confident that no votes cast in the 2016 presidential election were altered?
COMEY: I’m confident. When I left as director I had seen no indication of that whatsoever.
President Trump did not interfere in the Russia Investigation:
BURR: Director Comey, did the president at any time ask you to stop the FBI investigation into Russian involvement in the 2016 U.S. Elections?
COMEY: Not to my understanding, no.
No one in the Trump Administration interfered in the Russia Investigation:
BURR: Did any individual working for this administration, including the justice department, ask you to stop the Russian investigation?
COMEY: No.
Comey notes – correctly – that President Trump has the Constitutional authority to stop any investigation if he wants to:
LANKFORD: Okay. Fair enough. If the president wanted to stop an investigation, how would he do that? Knowing it is an ongoing criminal investigation or counterintelligence investigation, would that be a matter of going to you, you perceive, and say, you make it stop because he doesn’t have the authority to stop it? How would the president make an ongoing investigation stop?
COMEY: I’m not a legal scholar, but as a legal matter, the president is the head of the executive branch and could direct, in theory, we have important norms against this, but could anyone be investigative or not. I think he has the legal authority. All of us ultimately report in the executive branch to the president.
LANKFORD: Would that be to you, or the attorney general or who?
COMEY: I suppose he could if he wanted to issue a direct order could do it anyway. Through the attorney general or issue it directly to me.
Comey was pressured by former-Attorney General Loretta Lynch on the Clinton Criminal Investigation:
BURR: Let me go back if I can very briefly to the decision to publicly go out with your results on the email. Was your decision influenced by the attorney general’s tarmac meeting with the former president, Bill Clinton?
COMEY: Yes. In ultimately conclusive way that was the thing that capped it for me, that I had to do something separately to protect the credibility of the investigation, which meant both the FBI and the justice department.
BURR: Were there other things that contributed to that, that you can describe in an open session?
COMEY: There were other things that contributed to that. One significant item I can’t but know the committee’s been briefed on, there’s been some public accounts of it which are nonsense but I understand the committee has been briefed on the classified facts. 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.
And again:
LANKFORD: Then you made a comment earlier, the attorney general, the previous attorney general asking you about the investigation on the Clinton e-mails saying you were asked to not call it an investigation anymore. But call it a matter. You said that confused you. You can give us additional details on that?
COMEY: Well, it concerned me because we were at the point where we refused to confirm the existence as we typically do of an investigation for months. And was getting to a place where that looked silly because the campaigns we’re talking about interacting with the FBI in the course of our work. The Clinton campaign at the time was using all kinds of euphemisms, security matters, things like that for what was going on. We were getting to a place where the attorney general and I were both going to testify and talk publicly about it I wanted to know was she going to authorize us to confirm we have an investigation. She said yes, don’t call it that, call it a matter. I said why would I do that? She said, just call it a matter. You look back in hindsight, if I looked back and said this isn’t worth dying on so I just said the press is going to completely ignore it. That’s what happened when I said we opened a matter. They all reported the FBI has an investigation open. So that concerned me because that language tracked the way the campaign was talking about the FBI’s work and that’s concerning.
LANKFORD: You gave impression that the campaign was somehow using the language as the FBI because you were handed the campaign language?
COMEY: I don’t know whether it was intentional or not but it gave the impression that the attorney general was looking to align the way we talked about our work with the way it was describing that. It was inaccurate. We had an investigation open for the federal bureau of investigation, we had an investigation open at the time. That gave me a queasy feeling.
Press reports that members of the Trump Campaign had contact with Russia were false:
RISCH: I remember, you talked with us shortly after February 14th, when the “New York Times” wrote an article that suggested that the trump campaign was colluding with the Russians. Do you remember reading that article when it first came out?
COMEY: I do, it was about allegedly extensive electronic surveillance in their communications.
RISCH: Correct. That upset you to the point where you surveyed the intelligence community to see whether you were missing something in that. Is that correct?
COMEY: That’s correct. I want to be careful in open setting, but —
RISCH: I’m not going to go any further than that, so thank you. In addition to that, after that, you sought out both Republican and Democrat senators to tell them that, hey, I don’t know where this is coming from, but this is not the case. This is not factual. Do you recall that?
COMEY: Yes.
RISCH: Okay. So again, so the American people can understand this, that report by the “New York Times” was not true. Is that a fair statement?
COMEY: In the main, it was not true. And again, all of you know this. Maybe the American people don’t. The challenge, and I’m not picking on reporters about writing stories about classified information, is the people talking about it often don’t really know what’s going on, and those of us who do know what’s going on are not talking about it. We don’t call the press to say, hey, you don’t that thing wrong about the sensitive topic. We have to leave it there.
And again:
COTTON: On February 14th the New York Times published the story, the headline of which was “Trump campaign aides had repeated contacts with Russian intelligence.” You were asked if that as an inaccurate story. Would it be fair to characterize that story as almost entirely wrong?
COMEY: Yes.
Comey treated the Clinton Criminal Investigation differently than the non-Investigation of President Trump:
CORNYN: And were you aware Ms. Lynch had been requested numerous times to appoint a special counsel and had refused.
COMEY: Yes. From, I think, Congress had — members of congress had repeatedly asked, yes, sir.
CORNYN: Yours truly did on multiple occasions. And that heightened your concerns about the appearance of a conflict of interest with the Department of Justice which caused you to make what you have described as an incorrectly painful decision to basically take the matter up yourself and led to that July press conference?
COMEY: Yes, sir. I ask — after President Clinton, former President Clinton met on the plane with the attorney general, I considered whether I should call for the appointment of a special counsel. And decided that would be an unfair thing to do because I knew there was no case there. We investigated it very, very thoroughly. I know this is a subject of passionate disagreement but I knew there was no case there. And calling for the appointment of special counsel would be brutally unfair because it would send the message, uh-huh, there’s something here. That’s my judgment. Lots of people have different views about it but that’s what I thought about it.
CORNYN: Well if a special counsel had been appointed they could have made that determination there was nothing there and declined to pursue it, right?
COMEY: Sure. But it would have been many months later or a year later.
CORNYN: Let me just you ask to — given the experience of the Clinton e-mail investigation and what happened there. Do you think it’s unreasonable for anyone, any president, who has been assured on multiple occasions that he’s not the subject of an FBI investigation, do you think it’s unreasonable for them to want the FBI director to publicly announce that, so that this cloud over his administration would be removed?
COMEY: I think that’s a reasonable point of view. The concern would be, obviously, because as that boomerang comes back it’s going to be a very big deal because there will be a duty to correct.
Comey stated he felt the President might lie as justification for the need to document conversations with President Trump:
WARNER: Now you’ve had extensive experience at the department of justice and at the FBI. You’ve worked under presidents of both parties. What was about that meeting that led you to determine that you needed to start putting down a written record?
COMEY: A combination of things. I think the circumstances, the subject matter, and the person I was interacting with. Circumstances, first, I was alone with the president of the United States, or the president-elect, soon to be president. The subject matter I was talking about matters that touch on the FBI’s core responsibility, and that relate to the president, president-elect personally, and then the nature of the person. I was honestly concerned he might lie about the nature of our meeting so I thought it important to document. That combination of things I had never experienced before, but had led me to believe I got to write it down and write it down in a very detailed way.
At times, Comey seemed to be able to read into things not said with perfect clarity – at other times Comey states he does not know how to read President Trump:
This:
FEINSTEIN: Talk for a moment about his request that you pledge loyalty and your response to that and what impact you believe that had.
COMEY: I don’t know for sure because I don’t know the president well enough to read him well. I think it was — first of all, relationship didn’t get off to a great start, given the conversation I had to have on January 6th. This didn’t improve the relationship because it was very, very awkward. He was asking for something, and I was refusing to give it. Again, I don’t know him well enough to know how he reacted to that exactly.
Versus this:
WARNER: Now you’ve had extensive experience at the department of justice and at the FBI. You’ve worked under presidents of both parties. What was about that meeting that led you to determine that you needed to start putting down a written record?
COMEY: A combination of things. I think the circumstances, the subject matter, and the person I was interacting with. Circumstances, first, I was alone with the president of the United States, or the president-elect, soon to be president. The subject matter I was talking about matters that touch on the FBI’s core responsibility, and that relate to the president, president-elect personally, and then the nature of the person. I was honestly concerned he might lie about the nature of our meeting so I thought it important to document. That combination of things I had never experienced before, but had led me to believe I got to write it down and write it down in a very detailed way.
WARNER: And so in all your experience, this was the only president that you felt like in every meeting you needed to document because at some point, using your words, he might put out a non-truthful representation of that meeting.
COMEY: That’s right, senator. As I said, as FBI director I interacted with President Obama, I spoke only twice in three years, and didn’t document it. When I was Deputy Attorney General I had a one one-on-one with President Bush been I sent an email to my staff but I didn’t feel with president bush the need to document it in that I way. Again, because of the combination of those factors, just wasn’t present with either President Bush or President Obama.
Or this:
HARRIS: In your written testimony, you indicate that after you were left alone with the president, you mentioned that it was inappropriate and should never happen again to the attorney general. And apparently, he did not reply. And you wrote that he did not reply. What did he do, if anything? Did he just look at you? Was there a pause for a moment, what happened?
COMEY: I don’t remember real clearly. I have a recollection of him just kind of looking at me. It was a danger I’m projecting on to him so this might be a faulty memory. But I kind of got — his body language gave me a sense like what am I going to do.
HARRIS: Did he shrug?
COMEY: I don’t remember clearly. I think the reason I have that impression is I have some recollection of almost imperceptible like what am I going to do. But I don’t have a clear recollection of that of that. He didn’t say anything.
Or this:
WARNER: The president seems from my reading of your memo to be holding your job or your possibility of continuing your job over your head in a fairly direct way. What was your impression, and what did you mean by this notion of a patronage relationship?
COMEY: Well, my impression, and again it’s my impression, I could always be wrong but my common sense told me what was going on is, either he had concluded or someone had told him that you didn’t, you’ve already asked Comey to stay, and you didn’t get anything for it. And that the dinner was an effort to build a relationship, in fact, he asked specifically, of loyalty in the context of asking me to stay. As I said, what was odd about that is we’d already talked twice about it by that point and he said I very much hope you’ll stay. In fact, I just remembered sitting a third, when you’ve seen the. IC tour of me walking across the blue room, and what the president whispered in my ear was “I really look forward to working with you.” So after those encounters —
WARNER: That was a few days before your firing.
COMEY: On the Sunday after the inauguration. The next Friday I have dinner and the president begins by wanting to talk about my job and so I’m sitting there thinking wait a minute three times we’ve already, you’ve already asked me to stay or talked about me staying. My common sense, again I could be wrong but my common sense told me what’s going on here is, he’s looking to get something in exchange for granting my request to stay in the job.
Or this:
BLUNT: You said the attorney general said, I don’t want to be in the room with him alone again, but you continued to talk to him on the phone. What is the difference in being in the room alone with him and talking to him on the phone alone?
COMEY: I think what I stressed to the attorney general was broader than just the room. I said, I report to you. It is very important you be between me and the white house.
BLUNT: After that discussion with the attorney general, did you take phone calls from the president?
COMEY: Yes, sir.
I’ve heard commentators state they felt Comey came off as reasonably credible in his testimony. I couldn’t disagree more. To me it looks like Comey may have lied – twice – possibly more. It also appears that Comey specifically refused to publicly state what he, and members of Congress, already knew – that President Trump was not under any investigation – purely for political purposes.
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