Defining hope:
Key legal question is whether Trump’s query was a request or an order.
Former FBI Director James Comey’s testimony on Capitol Hill set off immediate debate over two questions with potential legal consequences for President Trump.
Did Trump merely express “hope” that Comey would halt an investigation into former national security adviser Michael Flynn’s Russian contacts in a one-on-one meeting in February, or was it actually — as Comey testified Thursday before the Senate Intelligence Committee — an order to drop the investigation?
And was Trump’s request for Comey to “lift the cloud” hanging over him a mere plea to tell the nation the president was not under investigation — which was true, Comey said — or an attempt to end FBI scrutiny of Russian involvement in last year’s presidential election?
The answers may be crucial in assessing whether Trump committed obstruction of justice.
There is little dispute that Trump fired Comey on May 9 at least in part because of the FBI’s investigation into Russian interference and possible collusion by people involved with the president’s 2016 campaign. Trump told a television interviewer May 11 that he had been thinking about the “Russia thing,” which he considered phony and pointless, when he dismissed Comey.
At Thursday’s hearing, Comey said, “I was fired because of the Russian investigation . ... The endeavor was to change the way the Russian investigation was conducted. That is a very big deal.”
After the hearing, Trump’s private attorney, Marc Kasowitz, said Comey had fabricated details of the conversations.
“The president never, in form or substance, directed or suggested that Mr. Comey stop investigating anyone, including suggesting that Mr. Comey ‘let Flynn go,’ ” Kasowitz said.
If Comey’s account of his conversations with Trump is to be believed, a critical legal question is whether the president sought to shut down an investigation in which he was personally involved.
Comey’s prepared statement to the committee, released Wednesday, described a White House meeting Feb. 14 in which Trump, after telling his aides to leave, brought up the subject of Flynn, who had resigned under pressure the previous day.
Comey, relying on a detailed memo he prepared immediately after the meeting, said Trump told him Flynn was a “good guy” who had lost his job only because he had misled Vice President Mike Pence about a conversation with the Russian ambassador, and that “I hope you can let this go.”
In his testimony, Comey said he concluded that Trump wanted him to drop the investigation into Flynn’s false statements to Pence, and not “the broader investigation into Russia or possible links to his campaign.”
According to some legal analysts, a probe into Flynn and Pence would not have directly involved Trump, so the president’s attempt to shut it down would not have amounted to obstruction of justice.
“There is no evidence of corrupt purpose, which is an essential element of the crime — only evidence that Trump thought Michael Flynn was ‘a good guy’ and that the only basis for firing Flynn as national security adviser was his false statements to the vice president, which are not criminal,” Michael McConnell, a Stanford law professor and director of the school’s Constitutional Law Center, said after Thursday’s hearing.
But Comey also said Trump complained repeatedly about the “cloud” of the Russian investigation that was hanging over him, and asked him to state publicly that Trump himself was not under investigation.
Comey said he agreed with the president that investigators were not looking into his conduct, but did not commit to making a public announcement. One reason, he told the senators, was that the FBI would have had a duty to make a further announcement if it later began investigating Trump.
The “cloud,” Comey told Sen. Marco Rubio, R-Fla., referred to “the Russian investigation in general.”
If it did, Comey’s firing could be seen as an attempt to end FBI scrutiny of conduct that implicated Trump himself, legal observers said. Obstruction of justice is defined as corruptly attempting to interfere with an official investigation or judicial proceeding — and an effort to shield one’s own conduct from investigation by firing the chief investigator could be viewed as “corrupt.”
An assertion that the president fired the FBI director to obstruct an investigation “makes more sense if he was trying to protect himself,” said Lisa Kern Griffin, a Duke University law professor.
“In the context of the improper private meeting, (Trump’s) previous requests for loyalty, and then the subsequent termination of Director Comey, this conversation looks closer to obstruction than it did before (Thursday’s) testimony,” Griffin said.
Stanford Law Professor Robert Weisberg said Comey’s testimony Thursday “moved the needle” toward a finding of obstruction of justice, potential grounds for impeachment. If Trump, as Comey recounted, asked for a promise of loyalty, ordered others out of the room before discussing Flynn, and made it clear he wanted the FBI to drop its probe of Flynn, Weisberg said, it could add up to a corrupt effort to interfere with an investigation.
Exchanges over the meaning of “hope” were some of the most animated moments at the hearing, with Republicans questioning Comey’s interpretation of Trump’s words as an order to drop the Flynn investigation.
“You don’t know of anyone who’s been charged for hoping?” asked Sen. James Risch, R-Idaho.
“I took it as a direction,” Comey said. “This is what he wants me to do.”
Sen. Kamala Harris, DCalif., the former state attorney general and San Francisco district attorney, added some graphic support.
“When a robber held a gun to someone’s head and said, ‘I hope you will give me your wallet,’ ” Harris said, “the word ‘hope’ was not the operative word.”