This post originally appeared on Lawfare.
A large number of reporters have been calling us over the past few days asking for our speculation about James Comey’s testimony tomorrow before the Senate Select Committee on Intelligence.
The curtain-raiser story is one of the less illuminating traditions in American political journalism. It’s an opportunity for reporters and sources to imagine what they would like the story to be, often on the basis of relatively little information. So let us be candid at the outset here: We don’t know what Comey is going to say at this hearing, and we won’t pretend to. What’s more, we are content, before commenting on what he has said, to wait for him to actually say it. And, while recognizing the futility of the plea, we urge others to do the same.
That said, there is a limited set of questions on which a certain amount of guidance is, at this stage, possible. So here are some Frequently Asked Questions about what to expect when you’re expecting Comey, omitting those to which the only honest answer is: “Who knows? We’ll find out tomorrow.”
Is Comey Likely to Make Some New Trump-Destroying Bombshell Revelation?
We doubt it.
We have no doubt that Comey will add a lot of new information to the conversation. But those waiting with bated breath for him to drop a big bombshell revelation that will have the House of Representatives rushing to draw up impeachment paperwork should probably lower their expectations. We’ll detail below what we will be particularly watching for. But we think Comey is unlikely to reveal dramatic, game-changing new facts befitting the attendant media fanfare. (CNN is actually running a countdown clock to the testimony, and several Washington bars are hosting viewing parties.)
Our reasons for caution on this point are threefold. First, as many of Comey’s newfound critics have pointed out, he contented himself while in office with writing memos; he did not resign over any interaction with Trump. He did not blow the whistle. This strongly suggests that while Trump’s interactions with Comey were bad, there is a limit to how bad they were.
Second, Ben has written that in his interactions with Comey, the then-FBI Director seemed to indicate that—at least as of late March—the situation between the White House and the FBI was under control. Comey was very disturbed by his interactions with the President, but he wasn’t talking like someone who believed he had witnessed the kind of frank crimes of the Internet’s worst imagination. That is consistent with the sort of revelations already reported in public—and perhaps more of them—which is to say disturbing, pressuring interactions with the President that risk politicizing law enforcement and do violence to important norms preventing abuse of the FBI. It is far less consistent, in our view, with the kind of additional bombshell that involves per se criminality.
Third, Comey testified on May 3 before the Senate Judiciary Committee as follows, in response to questioning from Senator Mazie Hirono:
HIRONO: So if the Attorney General or senior officials at the Department of Justice opposes a specific investigation, can they halt that FBI investigation?
COMEY: In theory yes.
HIRONO: Has it happened?
COMEY: Not in my experience. Because it would be a big deal to tell the FBI to stop doing something that—without an appropriate purpose. I mean where oftentimes they give us opinions that we don’t see a case there and so you ought to stop investing resources in it. But I’m talking about a situation where we were told to stop something for a political reason, that would be a very big deal. It’s not happened in my experience.
On May 11, Acting FBI Director Andrew McCabe testified similarly in response to questioning from Senator Marco Rubio about the firing of Comey:
RUBIO: Mr. McCabe, can you without going into the specific of any individual investigation, I think the American people want to know, has the dismissal of Mr. Comey in any way impeded, interrupted, stopped or negatively impacted any of the work, any investigation, or any ongoing projects at the Federal Bureau of Investigations?
MCCABE: As you know, Senator, the work of the men and women of the FBI continues despite any changes in circumstance, any decisions. So there has been no effort to impede our investigation today. Quite simply put sir, you cannot stop the men and women of the FBI from doing the right thing, protecting the American people, and upholding the Constitution (emphasis added).
Comey’s and McCabe’s words here are careful but also significant. The question to Comey is about the Justice Department, not the White House, and the question to McCabe is about the Comey firing, not about the White House’s conduct in general. Neither man’s answer says that the President never attempted improperly to interfere with the FBI’s work in his personal interactions with Comey. Comey only says that there was no completed effort to shut down an investigation by the Justice Department, and McCabe says only that Comey’s firing itself was not accompanied by an effort to impede the investigation. These comments are consistent with many manners of impropriety on the part of the President, it does suggest again that there’s some limit to the impropriety—specifically that while the President may have pressured Comey in any number of ways, and ultimately removed him, the leadership felt both before and after the firing that it was able to protect the FBI from tangible impacts on its work and to ensure that the actual investigation was not affected. So a bombshell revelation that’s not consistent with that general mood seems unlikely.
So Will Comey’s Testimony Turn Out to Be Much Ado About Nothing?
Even if there is no game-changing single allegation, Comey’s account of his interactions with the President are potentially pivotal in a number of respects: First, this is the first time we are going to hear a coherent narrative presentation of the President’s interactions with law enforcement over the Russia investigation. The journalism on this subject has been superb, and we are in no sense criticizing it when we say that what we have seen to date are scattered anecdotes given by—with the exception of those stories sourced to Ben—anonymous sources. That’s just a reality. There is nothing first-hand. There is very little on the record. There is nothing under oath.
All that will change when Comey testifies. Whatever you think of the guy, he’s not a liar. He will also be under oath. And he will be testifying about matters in which he was a direct participant. That means his testimony will bring a certain first-hand narrative coherence to what is now a disturbing but disjointed set of reports. That’s a very big deal, even if there is no smoking gun revelation. In other words, this may not be the first time we are hearing some of these stories, but it is the first time we’re hearing Comey tell them—and it’s the first time we’re hearing them in detail, rather than in sketch, and in a formal setting. That will be a big deal.
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It’s important to stress that the details here—and how the incidents in question connect to one another—matter enormously. It matters if the FBI Director felt menaced by the President, felt he had to protect the FBI from him, felt the President was trying to interfere with the Russia investigation—or if, in the alternative, he merely regarded the President as an eccentric who had to be educated about how to behave. It matters if he describes a pattern of pressure or a pattern of missteps or something in between. It matters what precisely the President said. It matters what precisely he asked—or told—Comey to do. It matters what a reasonable person would glean from Comey’s story about the President’s intent.
What’s the Big Question You’re Expecting Comey to Answer?
The key question Comey needs to answer is very simple: What happened between Comey and the President? Was there any attempt—or were there multiple attempts—to interfere with the Russia investigation? And if so, what specific behavior characterized the attempt or attempts? Comey may well choose not to attribute motive to the President or attempt to characterize his intent in doing the things he did. That’s fine. Ascribing intent is not his role. Comey’s role is to say what happened and his perception of the events.
Are You Expecting Comey to Announce Whether the President Committed Obstruction of Justice?
Congressional testimony is not the venue to make accusations of criminality, and notwithstanding Comey’s role in the Clinton email affair, the FBI Director is generally not the person who normally makes those judgments anyway. What’s more, Comey is testifying in his capacity as a witness to and participant in certain events. We thus think it advisable for him to stick to the facts of what happened, not to try to characterize their interaction with the law—except to the extent that his view of the law affected his behavior at the time.
That said, a key question for others in light of Comey’s testimony will certainly be whether the conduct he describes—plus his subsequent firing, plus the President’s comments about the firing to Lester Holt, and plus the President’s comments to the Russians that he had faced “great pressure because of Russia” that was now “taken off” because of Comey’s firing—constitutes an obstruction, either under the criminal code or for purposes of the impeachment clauses.
The better part of valor on Comey’s part, at least in our view, would be to leave these questions, along with questions of the President’s motive or intent, to others.
So What are the Big Areas the Committee Should Focus On?
While we don’t know what Comey intends to say, there are a few clear areas in which the committee should focus its questions. While past hearings in the House saw strong partisan divides—with Democrats focusing on Russia and Republicans focusing on leaks and unmasking—the Senate Intelligence Committee has thus far been more restrained and bipartisan in its approach. We thus hope to see members of both parties focused on the most important questions.
First, members should seek to develop a complete account of Comey’s interactions with the President. There have been numerous media reports regarding a series of alarming alleged interactions. These include a dinner early in the administration in which Trump reportedly asked Comey to pledge personal loyalty, as well as phone calls and an awkward hug captured on film that Ben has previously written about at length. Perhaps the most significant interaction is a reported meeting in the Oval Office in which Trump pressured Comey to drop the investigation into Michael Flynn.
Trump himself has provided some fodder for questions and the committee will likely request that Comey provide his account of matters the President has described. In the letter in which Trump fired Comey he referred to three interactions in which Comey purportedly reassured him he was not under investigation. The significance—and frankly the bizarreness of that claim—simply demands clarification.
Trump also tweeted about the possibility of his interactions having been taped. The committee should certainly explore with Comey the existence of any recordings about which he may be aware—though that is probably an issue that the White House, not Comey, needs to clarify.
The other area the committee needs to probe carefully is Comey’s reaction to his interactions with the President and any actions that he took in response. This includes reports that Comey documented each interaction with the Trump in memos, now reportedly in the possession of Special Counsel Mueller, and that following the Oval Office encounter, Comey requested of Attorney General Jeff Sessions that he not leave him alone with the President again. What steps did Comey take in real time either to document his interactions with Trump or to mitigate impacts on the Bureau that he feared—and why precisely did he take them? Similarly, why did Comey decline to take other, potentially more aggressive, steps?
The committee should also probe about other interactions between the White House and the FBI. Those include reports of a conversation between White House Chief of Staff Reince Priebus and then-Deputy and now-Acting FBI Director Andrew McCabe regarding media reports on the investigation, and subsequent efforts by the White House to enlist the FBI and others in shooting down the story in calls with the press. The committee needs to establish whether those reports are accurate, whether Comey perceived those, or any other, contacts as improper, and what actions he took in response to reestablish long-standing boundaries between the FBI and the White House.
Finally, the committee needs to establish Comey’s account of his own firing. Did Deputy Attorney General Rod Rosenstein ever speak to Comey about the concerns Rosenstein laid out in the memo used as the purported basis for Comey’s firing? Did the President or anyone else in administration discuss concerns with how Comey had handled either the Clinton email investigation or other management issues they have subsequently cited as the basis for the firing?
Will Comey Discuss the Russia Investigation?
That’s an easy one. No. Don’t look for a lot of talk about Paul Manafort, Carter Page, or the substance of the investigation of Michael Flynn—at least not from the witness. And the committee, in our view, should not waste time asking questions on the subject.
At the risk of raining on some parades, open congressional testimony is not a venue in which ongoing investigations or intelligence operations can be discussed in any detail. Many of the most relevant facts are classified. And while the committee’s investigation proceeds in parallel to the FBI inquiry overseen by Mueller, Comey will surely take great care not to reveal material that is sensitive either for investigative reasons or for reasons of classification.
In fact, we know pretty precisely what lines Comey is likely to observe on Thursday, because he laid them out in his March 20 testimony before the House Intelligence Committee:
As you know, our practice is not to confirm the existence of ongoing investigations, especially those investigations that involve classified matters, but in unusual circumstances where it is in the public interest, it may be appropriate to do so as Justice Department policies recognize. This is one of those circumstances.
I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.
Because it is an open ongoing investigation and is classified, I cannot say more about what we are doing and whose conduct we are examining. At the request of congressional leaders, we have taken the extraordinary step in coordination with the Department of Justice of briefing this Congress’ leaders, including the leaders of this committee, in a classified setting in detail about the investigation but I can’t go into those details here. I know that is extremely frustrating to some folks. I hope you and the American people can understand. The FBI is very careful in how we handle information about our cases and about the people we are investigating.
In that testimony, Comey resolutely refused to go further than these few lines the Justice Department had specifically authorized him to speak. There’s nothing about being the former FBI Director, as opposed to the current FBI Director, that would meaningfully change this position. Unless Mueller has authorized further disclosures, and that seems unlikely, it’s reasonable to expect him to go no further in this testimony.
Is There Anything Else We Should Know?
Yes, one other thing.
This is a forum in which Comey excels. Love him or hate him, he’s charismatic and highly articulate. He comes across as earnest; he’s exceptionally good at the Q&A format of a congressional hearing. And he will have a good portion of the nation’s attention for several hours of uninterrupted air time. Don’t underestimate the power of that moment, particularly if the story he tells turns out to be—as the news stories would lead a reasonable reader to suspect—alarming as to the President’s commitment to basic rule of law norms.
It appears Trump himself recognizes the potential power of this moment: He reportedly plans to live tweet the hearing, a strategy that will only add to the spectacle of the episode. If Comey’s factual account raises concerns about obstruction of justice, dyspeptic presidential Twitter interventions in the middle of his testimony will only invite the inference that the President continues to fear the former director and, having removed Comey from his own investigation, continues to harass him in his effort to assist the committee’s.