The New York Times reported on Tuesday that President Trump allegedly asked former FBI Director James Comey to shut down the investigation into former National Security Advisor Michael Flynn. The source of the allegation is a memorandum, revealed by an anonymous source, allegedly prepared by Comey regarding a meeting in the Oval Office the day after Flynn was forced to resign for misleading the vice president.
While the headline is sensational, The New York Times’s report is self-contradictory at times, conflicts with statements made on-the-record and under oath, overhypes the substance of the memorandum, and is irreconcilable with other information in the public record.
First, the report concedes that the Times has not “viewed a copy of the memo,” despite the fact that the Times says memo itself “is unclassified.” If the memo is unclassified, then that raises several questions. Why did the Times not press the source for a copy of the memo? Why did the Times not seek a copy through the Freedom of Information Act (FOIA) before publishing? If it was truly unclassified, then the Times stood a decent chance of having the memo released.
Second, if Times’s story is true and what President Trump did amounted to obstruction of justice, then Acting FBI Director Andrew McCabe likely committed perjury. Before Comey was fired, McCabe was the Deputy Director of the FBI, one of four “senior staff” positions and also the Bureau’s second-in-command. The Times report alleges that Comey “shared the existence of the memo with senior F.B.I. officials and close associates,” which means that McCabe knew about the memo on May 11 when he testified before the Senate Intelligence Committee about the Russia investigation. During his testimony, Senator Marco Rubio and McCabe (who was under oath) had the following exchange:
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.
If the Times’s report is true, including the implication that the president obstructed justice, then the president’s critics are in a double bind: Either
- McCabe committed perjury when he said “there has been no effort to impede” the investigation; OR
- McCabe did not consider the statements of the president to constitute an “effort to impeded” the investigation, which would mean no senior FBI officials viewed the president’s statements as an attempt to obstruct justice.
The Times reported that Comey, without material qualification, informed “senior” officials. Only four individuals within the FBI’s ranks are given “senior” titles, according to the FBI’s own website. Accordingly, if the Times’s report is true, then it is inconceivable that McCabe did not know about the memo when he testified that no interference with the investigation has occurred.
Third, the four statements in question that Comey alleges Trump said do not in any way amount of obstruction of justice. Moreover, those seeking to compare the allegations in the memo to Watergate are off the mark.
President Trump allegedly said, “I hope you can let this [Flynn investigation] go”; “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.” None of these statements comes close to resembling a “request,” but rather someone longing that his friend will eventually be able to escape the prospects of legal prosecution.
President Nixon, to the contrary, explicitly told his chief of staff to lie to the FBI in order to thwart its investigation into the Watergate break in. In what would later come to be known as the “Smoking Gun” tape, Nixon instructed his chief of staff, Bob Haldeman to:
[J]ust say this is sort of a comedy of errors, bizarre, without getting into it, ‘the president believes that it is going to open the whole Bay of Pigs thing up again. And, ah because these people are plugging for, for keeps and that they should call the FBI in and say that we wish for the country, don’t go any further into this case,’ period!
President Trump said nothing even resembling Nixon’s vivid instructions, further undermining the potential impact of the Times’s report, as well as the credibility of cable news pundits hyping such a suggestions.
Fourth, and finally, if the Times’s report is true, then it calls into question Comey’s character. During Bush’s presidency, Comey worked as the Deputy Attorney General and for a period of time was delegated full authority while the then-Attorney General John Ashcroft was sick and in the hospital. While Ashcroft was sick, President Bush needed Comey to reauthorize a surveillance program created after the September 11th terrorist attacks to assist in the United States’s counterterrorism efforts. Comey refused to reauthorize the program unless some of the language was changed to bring the program into legal compliance. President Bush went ahead and reauthorized the program with Comey’s authorization, after which Comey threatened to resign. According to testimony given during a 2007 Senate Judiciary Committee hearing, Comey said,
The program was reauthorized without us and without a signature from the Department of Justice attesting as to its legality. And I prepared a letter of resignation, intending to resign the next day, Friday, March the 12th.
This event demonstrates that Comey would refuse to work for an executive he perceives as abusing his authority. So the question, then, is why did not Comey threaten to resign this time?
Perhaps because he did not view what the president said as inappropriate.
Whatever the reason, Democrats and the Press are, again, overplaying their hand. Within hours of the Times’s report CNN sent out a push notification that said, “Why the Trump administration may not survive the Comey memo.” Anderson Cooper went wild with such speculation during his timeslot on the network. Others on different networks, to be sure, followed suit. Democrats and anti-Trump republicans likewise fell in line.
All of this hysteria has only led us here in Middle America to wonder whether anyone in Washington still cares in objectivity and due process. Indeed, those now lecturing us about why President Trump is dangerous to Democracy ought to take a good, long hard look in the mirror.