Is Former FBI Director James Comey’s Senate Testimony An Exoneration Of Donald Trump? Not Even Close.

By Richard Cameron


Directly following former FBI Director James Comey’s question and answer sessions Thursday in the Senate chamber, political narratives emerged, falling generally along partisan lines.  For Democrats, Comey’s testimony was notable in that he asserted that Donald Trump lied about the condition of the FBI and the reasons Trump disclosed for Comey’s firing.

For Republicans who are still tethering their destiny to that of the President’s, Comey’s answers were a full absolution of any wrongdoing on the part of the President. To listen to them, you would have to conclude that the investigation into obstruction of justice and Trump campaign collusion with Russia to influence the outcome of the election, is over and it is time to move on to other matters. For a variety of reasons, that is far from being the case.

Much was made by Trump surrogates that today’s appearance by Comey was anti-climactic and a bookend to the testimony earlier this week of the Director of National Intelligence, Dan Coats and NSA head, Mike Rogers.  Among the comments they seized upon was Coats’ testimony that:

“In the three-plus years that I have been director of the National Security Agency, I have never been directed to do anything I believe to be illegal, immoral, unethical or inappropriate and to the best of my recollection during that same period of service I do not recall ever feeling pressured to do so.”

However, follow up questioning made that statement highly questionable, particularly when both refused to provide specific details to specific questions regarding what Coats and Rogers may have been requested to do or not to do.

“I’m not prepared to answer your question today,” Coats said when pressed by Sen. Marco Rubio (R-Fla.) as to whether he had ever “been asked by the president or the White House to influence an ongoing investigation.”  Rogers also refused to comment. “I’m not going to discuss the specifics of discussions with the president of the United States,” he said.

“If what is being said to the media is untrue, then it is unfair to the president of the United States,” said Sen. Marco Rubio (R-FL). “And if it is, that is something the American people deserve to know, and it is something we as an oversight committee need to know.” Rubio pressed on, “Are you prepared to say that you’ve been asked by the president or the White House to influence an ongoing investigation?”

Both men contended that they were unable to answer Rubio’s queries in a public session of the committee.  Rubio took one final stab at it: “Have you ever been asked to say something that wasn’t true?” Once again, neither would give a direct answer.

Theories abound as to why neither of the men would provide particulars on their interactions with the President. Neither of them alleged that their refusal had to do with Trump having invoked executive privilege, Sen. Angus King (I-ME), asking them, “Is there an invocation of executive privilege? If there is, let us know about it. If there isn’t, then let’s answer the question.”

The point here, of looking back at Wednesdays’ hearings is to lay bare the contention that Comey’s testimony is the bookend to a public hearing that was an acquittal of the President.  It was no such thing.

Let’s examine that line of argument straight from the prepared statement’s of Trump’s attorney, Marc Kasowitz.  Kasowitz said that “the President feels completely vindicated and is eager to continue moving forward with his agenda with this public cloud removed.” And that is what you are hearing at this moment from the Trump amen chorus.

Kasowitz statement will be the template for Trump’s defenders in the alt-Right blogosphere as well as Fox News as they disseminate the White House counter-narrative.  Trump’s personal lawyer wasted no time in mis-characterizing Comey’s testimony:

Contrary to numerous false press accounts leading up to today’s hearing, Mr. Comey has now finally confirmed publicly what he repeatedly told the President privately:  The President was not under investigation as part of any probe into Russian interference.  He also admitted that there is no evidence that a single vote changed as a result of any Russian interference.

This is an incompetent statement.  While it is true that Comey told Trump that he was not “under investigation”, there is a distinct difference between being the focus of an active investigation and being a party that is connected to the subjects of an investigation.

When a team of agents have enough probable cause to compel them to apply to a court for a warrant to obtain more possible evidence, they are looking first at a specific player or set of players. The investigation begins at the outside of a circle and moves inward – from the low level players and working in the direction of an individual or group that might be directing an illegal operation. Trump seemed to be fishing for a simplistic answer that he could leverage into a political exoneration.  Here is what Comey said with regards to the conversation with Trump:

I explained that we had briefed the leadership of Congress on exactly which individuals we were investigating and that we had told those Congressional leaders that we were not personally investigating President Trump. I reminded him I had previously told him that. He repeatedly told me, “We need to get that fact out.” (I did not tell the President that the FBI and the Department of Justice had been reluctant to make public statements that we did not have an open case on President Trump for a number of reasons, most importantly because it would create a duty to correct, should that change.)

This is quite reasonable because, anyone who understands the mechanics of how these investigations proceed – and remember, this is an ongoing investigation, knows that no assurance can be given that anyone will be excluded from charges if at a later point in time, they become a subject of the investigation and if evidence surfaces that ties them to the activity being investigated.

Kasowitz’ statement is intentionally deceptive in this regard, because it is not so much what Comey did tell the President about his status, as what he didn’t volunteer about what Trump’s status could wind up being.  As to there “being no evidence that a single vote changed”, that is something that neither Kasowitz or Comey could prove or disprove.

It’s valuable to look at the specific context of what Kasowitz was referring to there.  It harkens back to some questions that the previous Director of National Intelligence, James Clapper, had been asked in January, about whether he was aware of any instances or evidence that Russian hackers, state actors or otherwise, had been successful in tampering with voting machines in the United States.  It was not a question having to do with whether the Russians effected a shift in the voting decisions of the American electorate.

“We had no way of gauging the impact that—certainly the intelligence community cannot gauge the impact–it [Russian cyber activities] had on the choices the electorate made,” Clapper told Senator John McCain (R-AZ).

Who you appoint to represent you in a public forum, is a direct reflection of your character and ethics.  Donald Trump, in assigning Marc Kasowitz to do so, appointed an individual, who, like himself,  is a flat out liar and has no standing to question James Comey’s truthfulness.  To put it otherwise, if you catch someone in a lie that is accusing someone else of lying, the focus then needs to be redirected back at the proven liar.  Kasowitz is the liar. Want proof? Good, here it is.  Kasowitz specifically said the following today:

Today, Mr. Comey admitted that he leaked to friends his purported memos of these privileged conversations, one of which he testified was classified.

Pay close attention to that claim.  Kasowitz says that Comey admitted he leaked “classified” memos.  Got it?  Now, the problem is that Comey’s statements – all of them – were public, on the record and transcribed, therefore it is the essence of simplicity to go back to the record of Comey’s testimony and confirm or refute Kasowitz assertion.  Let’s do that.  This segment is Senator Mark Warner’s (D-VA), question and Comey’s answer:

Warner:  “You made clear [in your prepared remarks] that you wrote that memo in a way that was unclassified. If you affirmatively made the decision to write a memo that was unclassified, was that because you felt at some point the facts of that meeting would have to … be shared with the American people?”

Comey:  “Well, I remember thinking, This is a very disturbing development. … If I write it in such a way that I don’t include anything that would trigger classification, that would make it easier for us to discuss within the FBI and the government and to hold on to it in a way that makes it accessible to us”.

So Comey, clearly did not “admit” leaking a classified memo, proving that Kasowitz is the author of a deliberate lie against a man he accuses of lying.  This renders every other statement of Kasowitz as unreliable.  The other linchpin of Kasowitz statement is that the subject matter of the meeting between Trump and Comey is “privileged”.  Here we have to concede the possibility that Kasowitz may not be deliberately conveying false information, but that he merely ignorant of the facts.  Mark J. Rozell, dean of the school of policy and government at George Mason University:

“Trump tripped himself up, first by speaking about his conversation and by firing Comey.  There is no legal prohibition on him, as a private citizen, discussing his conversations with the president,” Rozell said, so long as Comey did not expose government secrets as in a “classified” document.

Was Comey’s memo a classified document?  It was not. The reason it was not, because at the time it was prepared, James Comey was the FBI Director and according to Executive Order 12356, issued by President Ronald Reagan on April 2, 1982 – an FBI director, holding the status, under the order as “agency heads and officials designated by the President in the Federal Register”, is the individual charged with the responsibility of assigning the document as classified or unclassified.  In other words, James Comey, by definition, cannot be properly accused or charged with leaking a classified document – in this case, a memo, unless Mr. Comey himself had first assigned it a classified status.

It is not known if Kasowitz himself prepared the statement he read at the National Press Club or not. If he didn’t, the person who authored it is incompetent. If Kasowitz, himself composed it, then he appears to be virtually as uninformed as his employer regarding the law.

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