Richard Epstein: The Cagey Mr Comey

Former FBI Director James Comey is the star of a gripping political drama that may bring Donald Trump’s tumultuous presidency to an ignominious end. Trump will be subject to nonstop political pressure, given his unerring ability to say, or tweet, the wrong thing at the wrong time. 

Comey’s testimony was constructed to lay the foundation for the special prosecutor to make a finding that President Trump had violated the well-established statutory prohibitions against obstruction of justice.  But the obstruction charges are not confined to impolitic tweets, and, ironically, may be applicable to Comey’s own effort to influence the FBI investigation. His prepared testimony before the Senate Select Committee on Intelligence, which he followed up with his dramatic appearance before the Committee on June 8, has its undeniable surface appeal. But on closer reading, it reveals a darker side filled with self-serving allegations that should make him a target of far closer scrutiny than an uncritical and adoring press has given him.

The main issue is whether Comey was able to establish that Trump had obstructed justice by seeking to block the FBI investigation into the ties between Mike Flynn, Trump’s short-lived National Security Advisor, and the Russians. Comey’s most damning testimony is that Trump said: “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” During the testimony, Comey said, “I replied only that ‘he is a good guy.’” Marc Kasowitz, Trump’s lawyer, has contested the accuracy of Comey’s account. But for these purposes, I shall take Comey at face value.

The applicable statute about obstruction of justice reads in relevant part as follows:

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States. . . [s]hall be fined under this title, imprisoned not more than 5 years . . . 

Two features stand out. First, in the absence of the use or threat of force, obstruction requires that the conduct in question be corrupt. Second, obstruction can be made out by showing an “endeavor” to illicitly obstruct even if that effort failed. The key question is whether the term “hope” entails only a simple (and legal) request, or whether it connotes a direction or order to do an illegal act. Taking the words in isolation, the former interpretation seems clearly correct. But context always matters. Did the circumstances reveal that the President made veiled threat that he would fire Comey if the FBI investigation were to continue? In response to questions from the Senator James Risch of Idaho, Comey insisted that he “took [his words] as a direction.” But, oddly, Comey neither resigned nor reported the matter up the chain of command. How convenient!

The hard question is why Comey allowed the ambiguity to ride by his evasive response that Flynn was an honest man. The entire incident would have gone away if Comey had sought to clear the matter up, then and there, by asking the President flat out whether he was ordering Comey to stop the investigation of Flynn. My own guess is that even Trump would have sensed the suicidal danger in ordering Comey to stop this investigation, and so he would have clarified the statement to say that when he said hope he meant hope after all. Trump had just fired Flynn as National Security Advisor for lying to Vice President Michael Pence about his contacts with the Russians. It was the lie, not the contacts, that resulted in the abrupt—but fully justified—dismissal. That pill was hard for Trump to swallow because he knew that Flynn had not cooperated with the Russians to influence the outcome of the American election.

To be clear, if Trump had either known or believed that Flynn had been involved in any improper dealings with the Russians, even a simple request to stop the investigation would have been very damning. But the entire investigation to this point has not, as Virginia Senator Mark Warner has stated, revealed any “smoking gun” whatsoever indicating collusion between the Trump campaign and the Russians in the run-up to the November 2016 election.

For Trump to hope that Comey would see it fit to back off sounds like he said what he meant and meant what he said. And Trump was right to be unhappy with Comey for refusing, without explanation, to make the simple, truthful statement that Trump was not personally under investigation in the Russia probe. Instead, Comey slow-walked that issue, which doubtless contributed to Trump’s legitimate concern that Comey was not loyal to him. Indeed, Comey offers no evidence to support his “instincts” of a grander plan, namely, that their “dinner was, at least in part, an effort to have me ask for my job and create some sort of patronage relationship.” His ostensible conclusion is all innuendo, cleverly used to set up the charge that he had been ordered to drop the investigation of Flynn.

In a sense, the situation is even worse. One of the striking moments in the Senate hearing was Comey’s account of his odd response to former Attorney General Loretta Lynch’s request that he speak of the Department of Justice’s investigation of the Clinton corruption charges as a “matter,” and not an “investigation.” In this instance, Comey himself was at risk, so he did not let the matter lie silent. He flat out asked her whether her request was an order and only made the requested statement when he was assured that it was. His own explanation was that “this isn’t a hill worth dying” for. But, in fact, Comey’s conduct was more damning than his flip remark lets on. Lynch ordered Comey to make a false statement about a matter of intense public interest and concern. Lynch’s foolish request “endeavored,” to use the statutory term, to tamp down the FBI investigation in order to create some political breathing room for the Clinton campaign. Comey should have told Lynch that he was not going to participate in a transparent ruse, period. Perhaps both he and Lynch were guilty of obstruction of justice.

His unwillingness to do so casts a harsher light on Comey’s effort to go slow on, and then abort, the Clinton e-mail investigation, when her destruction of government emails received on her unauthorized server constituted a textbook form of obstruction. Comey’s own July 5, 2016 statement, however, butchered a law that imposed criminal responsibility for the unauthorized use of a server, either intentionally or with gross negligence. His response was that while “we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”

But the intention to violate the law is no part of the government’s case: all that matters was that she knew that she used an unauthorized server, a point beyond dispute. And there is no distinction between “gross negligence” on the one hand and “extreme carelessness” on the other. Comey insisted at that time that “no reasonable prosecutor would bring such a case.” Indeed, any claim that the evidence against Clinton was weak on intent is only credible because of Comey's legal errors. In fact, the requisite mens rea in the Clinton case was indisputable. But, more to the point, why would any reasonable prosecutor then choose to turn Trump’s one remark into a criminal case of obstruction where the intent evidence is, to say the least, subject to multiple interpretations?

Ironically, a possible case for obstruction of justice might be brought against Comey himself. His most striking testimony was that, in his role as a private citizen, he had leaked his own memo about his conversations with Trump to the press through an intermediary, Columbia Law Professor David Richman. But again, Comey’s mock-heroic stance should be subject to harsh rebuke. The memo he wrote was part of his business as FBI Director. Yet there is no evidence that Comey sought approval from the FBI for the release, or even received advice from his personal lawyer that the release was proper. It has been claimed that his conduct is perfectly legal because the notes did not contain any classified information. But the applicable precedents, most notably the Supreme Court decision in the Pentagon papers case from 1971, did not involve any ongoing criminal investigation before the FBI. Comey made it clear that he issued the covert release of these papers because he wanted to spur the appointment of a special counsel, which in fact it did. Comey could have, of course, said publicly that he thought such an investigation was warranted, but a sour grapes statement would have been largely ineffective.

His actions were, at the very least, an inexcusable departure from FBI norms, and they have upended the course of the FBI investigation. So, ironically, special prosecutor Robert Mueller should ask himself whether Comey’s actions constitute a corrupt effort to influence an ongoing criminal investigation under Comey’s newly expanded definition of obstruction.

Professor Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago. This article was first published by the Hoover Institute's Defining Ideas.