One of the main takeaways from former F.B.I. Director James Comey’s testimony before the Senate Intelligence Committee this week is that timing, if not everything, is indeed crucial to the interpretation of events.
When President Donald Trump pressured Comey to drop the F.B.I. investigation of Gen. Michael Flynn’s connections with Russia, and when he asked for Comey’s personal loyalty, the then F.B.I. head failed to inform the president that such requests are wrong – especially in private.
The Justice Department has specific guidelines developed to avoid the extensive influence exerted by late Director J. Edgar Hoover over several U.S. presidents. These guidelines pertain specifically to appropriate communication:
The relevant guidelines from a May 11, 2009 Attorney General memorandum read as follows:
The Assistant Attorneys General, the United States Attorneys, and the heads of the investigative agencies in the Department have the primary responsibility to initiate and supervise investigations and cases. These officials, like their superiors and their subordinates, must be insulated from influences that should not affect decisions in particular criminal or civil cases. As the Supreme Court said long ago with respect to United States Attorneys, so it is true of all those who exercise the Department’s investigatory and prosecutorial powers: they are representatives “not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” — Berger v. United States, 295 U.S. 78, 88 (1935).
Following this establishment of priorities are specific instructions for communications with the president:
In order to ensure the President’s ability to perform his constitutional obligation to “take care that the laws be faithfully executed,” the Justice Department will advise the White House concerning pending or contemplated criminal or civil investigations or cases when – but only when – it is important for the performance of the President’s duties and appropriate from a law enforcement perspective.
As James Comey made clear in his testimony, he was aware of these requirements and others in the memorandum.
Yet, he did not tell the president that their private meetings were wrong – to say nothing of the subject matter. His admission to such inaction being “slightly cowardly” does not alter that fact that such meetings occurred – more than once. (His understated phraseology reminds me of his “mildly nauseous” description of how he feels when thinking about his Trump-favorable influence on the 2016 election.)
It’s interesting to note, too, that Comey had harsh words for former AG Loretta Lynch given her having met with former President Clinton, but considers his own inappropriate meetings with a sitting president, one potentially under investigation, minor and defensible misjudgments.
That brings us to the issue of timing as it relates to blame. What if Comey’s “stunned” responses had been leaked right after they’d occurred rather than after Trump’s dismissal of him? Certainly he would have been criticized for speaking privately to the president. His leadership and integrity might well have been questioned. At this point in time, however, a lot of water has gone over the dam. Within the context of his firing, his being “defamed” by Trump, referred to by the president as a “nut job,” and his willingness to testify before the Senate Intelligence Committee, the impact of his inaction – to his benefit — has been muted.
At the very least, though, when the Director of the F.B.I. is asked by a president to do something wrong — yet he replies, “We’ll see what we can do” — there should be less fawning by senators regarding the quality of his judgment.
It’s hard not to wonder if a President Hillary Clinton would have received the F.B.I. Director’s patience and willingness to violate DOJ established protocol even for less egregious actions than those attributed to Trump by Comey.
Would the F.B.I. director have contacted the attorney general and advised him to help the president understand how her relationship with the F.B.I. should be conducted – a courtesy Comey extended to President Trump? Or would he have cut Clinton no slack, and made sure she paid a high price for such behavior? You don’t need to be a genius to answer that question?
Is Comey a hero or perhaps a villain? Is he a patriot hampered by attacks of questionable judgment? Or did he purposely help Donald Trump win and then realize he’d backed the wrong horse?
History may reveal the answer sooner rather than later. At least we now know that the president asked a top Justice Dept. official for favors and loyalty, fired him when he appeared to refuse, flouted well-established procedures, and lied repeatedly.
Investigations are underway that may lead to criminal charges of people in the president’s inner circle – perhaps the president himself. Whether Comey’s testimony helps him pay his dues for admitted errors remains to be seen. But at least someone in a position to know has placed Americans on official notice that their president can’t be trusted.