How to Frame—and Not Misframe—Comey’s Testimony

We thought to offer a few thoughts in anticipation of James Comey’s testifying before the Senate Intelligence Committee on Thursday.

1. First it is important to remember that while Comey is no doubt the principal witness in the obstruction investigation, he will not be the only one. No case would be built on his testimony alone, and so whatever he says (whether inculpatory or exculpatory, or a bit of both) will have to be assessed together will all the other available evidence (witness, documentary, etc.). To what extent Comey’s testimony is ultimately corroborated will be an important consideration. Further, Comey’s evidence will have to be assessed in light of his own biases or perceptual limitations that may (or may not) have existed. All of these points are particularly important if Comey offers a mixed bag of testimony with both inculpatory and exculpatory bits (which is often the case with witnesses). Commentators will be tempted to seize on one statement that advances a particular narrative, but ultimately investigators will have to evaluate the testimony as a whole and how it fits with other pieces of evidence.

2. It will also be tempting for commentators and newsrooms to frame the testimony as a “swearing match” between two witnesses—he said (Comey) vs. he said (Trump). The President will help fuel that narrative if he follows through on this plan to livetweet the hearing. The reality of it, however, is that there are far many more potential witnesses and others who can provide information about this and related episodes. For instance, if their willingness to speak to the press is any indication, several people close to the White House may be forthcoming with the special counsel and congressional investigators and on matters that are not specifically about Trump and Comey’s direct interactions. Consider, for example, Tuesday night’s story on the president’s relationship with Attorney General Jeff Sessions. According to multiple sources, the president has repeatedly expressed being highly upset that Sessions, the person with a conflict of interest in the investigation, recused himself and thus was unable to alter the Russia investigation. As ABC reported:

“Multiple sources say the recusal is one of the top disappointments of his presidency so far and one the president has remained fixated on.
Trump’s anger over the recusal has not diminished with time. Two sources close to the president say he has lashed out repeatedly at the attorney general in private meetings, blaming the recusal for the expansion of the Russia investigation, now overseen by Special Counsel and former FBI Director Robert Mueller.”

As another example, DNI Director Dan Coats has also said he would be happy to speak with an investigative committee about his interactions with the president. The Washington Post reported on Tuesday that President Trump met with Coats to ask him to “intervene with then-FBI Director James B. Comey to get the bureau to back off its focus on former national security adviser Michael Flynn in its Russia probe.”

3. To the extent the testimony is to explore the obstruction question, then what is obstruction and what are the investigators looking for exactly? Any act that would obstruct, influence or impede the investigation, and any evidence showing Trump’s intent in taking those actions. On intent, the question is whether he acted with a corrupt or improper purpose, and intent can be demonstrated by direct evidence or can be inferred from circumstantial evidence.

4. With that in mind, the questions that are asked should be open-ended and should seek as much detail as possible regarding the content, circumstances and context of all of Comey’s interactions with Trump:

When you met or spoke with Trump, what did he say exactly?

What was the context of the conversation (how initiated, who present, where, etc.)?

In addition to what he said, what was the tone, manner, gestures, expressions, etc. that affected how you understood his words?

What other larger context shaped the understanding of that conversation (did it follow on or precede other conversations, did it connect to conversations you’d had with other people, did it connect to actions or decisions by Trump or others, etc.)?

What did you understand Trump to be saying, and why did you have that understanding?

What records did you make of conversations and why?

Did you have contemporaneous conversations with anyone about those conversations?

Did anybody ever make contact with you on Trump’s behalf? What were those conversations, context, etc. etc.?

Do you know of anyone else in the Executive Branch who was asked by the President to provide something like an assurance of personal loyalty to him?

5. Understand what is “evidence” or “indications” of obstruction of justice. Some data points should be considered evidence that affirmatively supports a case of obstruction even though the data point in and of itself would not amount to obstruction. For example, Comey will likely say that he considered Trump’s asking him to drop the Flynn investigation “inappropriate” and a form of “pressure.” Such characterizations may stop short of the type of corruption required for obstruction of justice, but would be consistent with it.

6. It is important to distinguish between Comey’s state of mind and the President’s state of mind. For example, Comey may say that he did not feel intimidated, or influenced in how he carried out the investigation, by the president’s actions, but that would not mean the president did not have the intent to try to intimidate or influence Comey. Ultimately the president’s actions will likely be assessed on an array of data points from Comey’s testimony and elsewhere.

7. Recall that obstruction of justice is not the only legal question if the president placed pressure on Comey to drop the Russia investigation. Other areas of law that might apply include bribery—under the impeachment clause and federal criminal law. In addition, whether Comey had a duty to report the president’s actions to other authorities may turn on internal rules of ethics regardless of whether the president’s actions were potentially criminal.

 

[Editor’s Note: In advance of Thursday’s hearing, be sure to read Kate Brannen’s “To Whom Should Comey Have Reported His Interactions with Trump?”]

Photo: Then-Director of the FBI, James Comey testifies in front of the Senate Judiciary Committee, May 3, 2017 – Zach Gibson/Getty 

About the Author(s)

Ryan Goodman

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). You can follow him on Twitter @rgoodlaw.

Alex Whiting

Professor of Practice, Harvard Law School; former federal prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston; served as Investigations Coordinator and Prosecutions Coordinator at the International Criminal Court. Follow him on Twitter (@alexgwhiting).