Former FBI Director James Comey delivered his much-anticipated testimony to the Senate Intelligence Committee on Thursday, June 8, 2017. I am back in Washington, D.C., wearing my CNN analyst/contributor hat, covering the proceedings. Trump has hired a crony, a New York lawyer who has handled his divorces and defamation actions, rather than someone who knows the ways of Washington. Trump and his lawyer’s response to Comey’s testimony is strange, to state it nicely. First a bit of background.
James Comey’s testimony was as explosive as anticipated. Rather than read his prepared statement at the hearing, since it had been submitted to the committee the day before and had received wide press coverage, the former director gave the committee (as well as Donald Trump, who is never far from his 60-inch flat screen, and the watching world) a few thoughts he had not included in his statement.
There has been much debate since Comey was fired by Trump whether it was true as stated in the letter dismissing the FBI chief whether Trump had been told by Comey on three occasions, as he claimed, that he was not under investigation. Comey quickly cleared up that the matter. He agreed that he had given President Trump information that the president might have believed were assurances that he was not under investigation, but he was only referring to a counter-intelligence investigation.
In short, the FBI does not believe Trump is a spy or Russian agent, but the former director refused to say in open session whether the president is currently under criminal investigation. By not absolving Trump of a criminal inquiry, it was very clear that what Comey was saying was that Trump is under investigation by the Special Counsel Mueller to determine whether he colluded with the Russian’s hacking of Hillary Clinton’s 2016 presidential bid, and related matters. These related matters could include Trump’s financial ties to Russian oligarchs, which many Trump watchers believe could spell trouble, even if he was not involved in collusion. I will return to investigating Trump in a moment.
Notwithstanding the limited statements Comey made, twenty-four hours later Trump announced that he had been vindicated by Comey: No investigation. No collusion. Although Comey said neither, Trump heard both. But Trump’s delusion is much more serious.
Probably the most unprecedented moment in the Comey proceeding was when the former director called the President of the United States a liar. It happened on several occasions during his testimony, with Comey mincing no words when flat-out calling Trump a liar. Early in his remarks Comey said the first time he met Trump, he was uncomfortable. “I was honestly concerned he might lie about the nature of our meeting,” Comey added and explained that he started writing memos of his meetings with the president. “I knew that there might come a day where I might need a record of what happened, not just to defend myself and FBI and the integrity of our situation, and the independence of our function.”
Comey also said he believed the president lied about the reason he fired him: “The administration (read: the President) then chose to defame me—and, more importantly, the FBI—by saying the organization was in disarray and that it was poorly led, that the workforce had lost confidence in its leader. Those were lies, plain and simple.”
These are extraordinary charges from any former high official, and particularly a former FBI director, when the president appears still under investigation. Not surprisingly, before the day ended Trump struck back, as he would again the next day. Trump’s private outside attorney, a longtime friend and lawyer, Marc Kasowitz, had come to Washington from New York, and following Comey’s testimony read a brief statement at the National Press Club (a few blocks from the White House) where he denied Comey’s charge in his testimony that Trump had tried to impede the FBI’s investigation of Michael Flynn, who briefly served as Trump’s national security adviser. Kasowitz similarly denied Trump had made any false statements. Kasowitz’s general denials did little to blunt the impact of Comey’s powerful testimony, given under oath, nor did Trump’s lawyer refusing to take questions bolster their case.
I have considerable experience following presidential scandals up close (Watergate, Iran-Contra, and the Lewinsky matter). I found Marc Kasowitz’s defense of President Trump underwhelming. More specifically, his defense seemed limited to the claim that Trump did not say what Comey says he did; Trump joined the defense 24 hours later at a press conference by volunteering to put his version under oath, as Comey’s was. Then the defense went on the attack with a Kasowitz statement riddled with problems. It is the kicker at the end trying to shift the problems to Comey:
Today, Mr. Comey admitted that he unilaterally and surreptitiously made unauthorized disclosures to the press of privileged communications with the President. The leaks of this privileged information began no later than March 2017 when friends of Mr. Comey have stated he disclosed to them the conversations he had with the President during their January 27, 2017 dinner and February 14, 2017 White House meeting. Today, Mr. Comey admitted that he leaked to friends his purported memos of these privileged conversations, one of which he testified was classified. He also testified that immediately after he was terminated he authorized his friends to leak the contents of these memos to the press in order to “prompt the appointment of a special counsel.” Although Mr. Comey testified he only leaked the memos in response to a tweet, the public record reveals that the New York Times was quoting from these memos the day before the referenced tweet, which belies Mr. Comey’s excuse for this unauthorized disclosure of privileged information and appears to entirely retaliatory. We will leave it the appropriate authorities to determine whether this leaks [sic] should be investigated along with all those others being investigated. (Italics added to note problems explained below.)
Let’s look at each at the counterattack by Trump and Kasowitz:
Charge: Kasowitz claims Comey leaked classified information.
Response: To the contrary, this is a total misreading of Comey’s statement, not to mention it suggests Kasowitz paid no attention to Comey’s responses to the questions of the Senate Intelligence Committee. A careful reading of Comey’s testimony, including his responses, reveals he did not release any classified material to any unauthorized persons. Comey repeatedly testified that the memos he wrote of his conversations with Trump were almost all UNCLASSIFIED. Or, as he stated to clarify at one point, “My view was that the content of those [memo are] unclassified, memorialization of those conversations was my recollection recorded.” At another point in his testimony he corrected a senator who was not clear on classification. Senator Heinriech asked: “The memos that you wrote, you wrote—did you write all nine of them in a way that was designed to prevent them from needing classification? Comey answered, “No. On a few of the occasions, I wrote—I sent emails to my chief of staff on some of the brief phone conversations I had. The first one was a classified briefing. Though it was in a conference room at Trump Tower, it was a classified briefing. I wrote that on a classified device. The one I started typing in the car, that was a classified laptop I started working on.” The Senator asked, “Any reason in a classified environment, in a skiff [sic], that this committee, it would not be appropriate to see those communications at least from your perspective as the author?” Comey said, “No.” But this has nothing to do with anything Comey “leaked,” if that is the correct word, which does not appear the case.
There is not a scintilla of evidence that Comey released any classified information, other than to his FBI associates involved in the Russia investigation, and cleared to receive such information.
Charge: Kasowitz claims Comey “leaked” information, and in doing so acted “surreptitiously.” Trump similarly call Comey a “leaker” as his press conference twenty-four hours after Comey’s testimony explaining his release of one of his memos to a friend, which he authorized sharing with the news media.
Response: Trump and his attorney appear to misunderstand the term “leak,” and exactly what Comey admitted to doing in releasing information. Specifically, Kasowitz charged: “Mr. Comey admitted that he unilaterally and surreptitiously made unauthorized disclosures to the press of privileged communications with the President. The leaks of this privileged information began….” First, Comey did not “leak” anything. Google, and most dictionaries, define a leak as “intentional disclosure of secret information.” Comey was privy to the conversation, so it was no secret—he simply used an intermediary, openly. If Sean Spicer, the press secretary, shared a Trump conversation off-the-record with a reporter, that is not a leak. Comey’s friend released his account of a conversation to make the information public. He did not need Trump’s consent because he had been fired, and Trump was falsely characterizing Comey’s position. To act surreptitiously means to keep something secret, and that was not done. The press coverage all but said the material had been provided by Comey and with his consent.
Charge: Kasowitz claims Trump’s conversations with Comey were “privileged.”
Response: This is absurd. Presidential conversations are only rarely privileged and that occurrs when they deal with national security matters or involve deliberations in decision making. Trump and his lawyer seem to think when Trump speaks some right of privacy attaches to his words. The Trump White House played this same game in claiming they allowed Comey to testify without invoking executive privilege to block him. I addressed this claim in a piece I wrote for CNN, because it is so over the top it is disconnected from reality. Now his New York lawyer is playing with it, and trying to suggest wrongdoing by Comey, and it is laughable.
It appears to me that Donald Trump has made the same mistake Richard Nixon did during Watergate: he is not represented by competent counsel. When I first learned the dimensions of Watergate I went to one of my two immediate superiors to explain I did not have such experience nor did the lawyers on my staff, thus suggesting we bring an experienced criminal lawyer so we not make some foolish mistake. My suggestion was promptly dismissed and we proceeded to make one foolish mistake after another. After I broke rank and left the White House, Nixon never hired a criminal lawyer, and proceeded to commit more crimes. Not until he resigned did he hire a highly qualified criminal lawyer, and get the representation he needed.
President Trump has hired a great litigator, who has handled a lot of nasty business for him in the past. But what he really needs an experienced Washington-based criminal lawyer, without which he may not survive the problems he currently faces. The weak response to the Comey testimony, and Trump’s bravado the next day at his press conference, show he is not ready to handle the legal problems he is facing. White House lawyers represent the office of the president, and are not available to handle his personal problems.