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Issues to Watch in Comey Hearing—A handy checklist

 

What questions might be answered at Monday’s hearing with FBI Director James Comey before the House Intelligence Committee? There is no expectation that the hearing will address all of the items in the checklist below, but it may help fill in some of the blanks. All eyes will be on Comey, but the first question and a few of the others below are about the Committee itself and its Chairperson.

1. Whether the House Intelligence Committee will establish itself as a credible investigative forum on Russian election interference and potential Russian connections to the Trump campaign.

2. Whether Director Comey will reject President Trump’s accusation that President Obama physically wiretapped phones at Trump Tower to spy on Trump.

2-a: If he does, how strongly will Comey dispute that accusation, and will he cover other versions of it (such as other forms of surveillance in addition to wiretapping phones and whether any actions were ordered by other parts of the prior administration other than Mr. Obama himself)?

3. Whether Comey will state publicly if there is one or more criminal investigations of any Trump associates and their dealings with the Russian government?

3-a: Whether the Chair of the House Intelligence Committee, Devin Nunes (R-Calif.) will clarify his remark on Fox News Sunday suggesting that there is one member of the Trump White House who is currently under investigation.

[Background: Nunes said: “Well, if you look at the folks that are working in the White House today that are involved in the — in the Trump — in the Trump administration, I don’t think there’s any but one there that’s under any type of — of — of investigation or surveillance activities at all.” (emphasis added)]

4. Whether the Justice Department or FBI, at a certain point, decided to slow or suspend the Russia-Trump campaign investigation until after the presidential election.

4-a If yes, knowing what he knows now, does Comey regret that decision?

[Background: For more on this topic, see Ryan Goodman & Richard Painter, “Real Questions include FBI Inaction and Action on Russia: Only Independent Investigations Can Resolve”]

5. Whether Comey will be asked (and answer) whether he, Deputy Director Andrew McCabe or anyone else at the FBI cleared Reince Priebus to say that FBI officials told him that the New York Times story on repeated contacts between the Trump campaign and Russian intelligence was bogus?

5-a If Comey won’t answer that question directly, whether Comey will say if he could ever provide such clearance to a White House official if the matter concerned an ongoing investigation (see this tweet for more background).

6. Whether the FBI requested a FISA warrant (in June 2016 or any other time) to conduct surveillance of Mr. Trump or Trump campaign associates and if so, whether, as Senator Ted Cruz has wondered, this was an “overbroad” application and a “fishing expedition.”

[Background: on Face the Nation, Sen. Cruz said: “The FISA applications, though, are significant, or at least they could be. They have been reported publicly in the media. It is not often that the FISA court turns down an application. They usually grant those applications. That suggests the application was probably overbroad. It is worth looking at, was there a fishing expedition that the Obama administration was trying to do or not?”]

6-a. Whether the FBI believed it had probable cause to surveil Trump associates in June 2016—and for what crime or national security concern.

7. Whether the FBI made a second request to the FISA court (reportedly in July 2016) and what was the scope and content of that request?

8. Whether the FBI made a FISA request that was approved by the FISA court in October 2016 and what was the scope and content of the warrant or order.

9. Whether the FBI agrees with the White House that ret. lieutenant general Michael Flynn’s conversations with the Russian Ambassador about US sanctions were neither unlawful nor inappropriate. Even if the Justice Department would not prosecute Flynn under the Logan Act (due, for example, to constitutional concerns about that law), does Comey think the content of Flynn’s conversations violated the terms of the Logan Act? Would those conversations, in Comey’s view, violate the Logan Act if Flynn were not a member of a transition team of an incoming administration at the time?

10. Whether Comey will comment on any existing evidence of collusion between Russia and the Trump campaign.

10-a: Whether Comey agrees with James Clapper who said that as of January 20 2017, there was “no evidence of such collusion”?

10-b Whether Comey agrees with Rep. Adam Schiff who said on Meet the Press that Clapper’s remark was too categorical, and Schiff’s statement that there is “circumstantial evidence of collusion” and “direct evidence of deception.”

10-c What counts as “evidence” – is raw intelligence enough?

10-d What counts as “collusion”? Would Roger Stone’s public statements about being in communication with Julian Assange and Gucifer 2.0 count as some evidence of collusion?

11. Whether Comey is concerned about the reported actions of FBI agents, including in the New York Office, leaking information or providing false information during the campaign favorable to one of the two presidential candidates. What is Comey doing to address these concerns?

12. Whether the Committee under Rep. Nunes’ leadership will focus more attention on the leaks than on the Russian election interference itself and potential connections to Trump campaign affiliates.

 

Image: FBI Director James Comey testifies during a House Judiciary Committee hearing on encryption, March 1, 2016 – Drew Angerer/Getty

 

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About the Author

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, Former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter (@rgoodlaw).