Former FBI director James Comey’s testimony in the Senate, a moment of high anticipation like few in recent Washington history, put questions about unorthodox presidential behavior at center stage.
At its heart, the hearing raised a profound question about President Trump: Was he trying to obstruct justice amid an investigation into Russian meddling in the 2016 election and possible collaboration between Trump associates and Russian officials, or was he simply unaware of what a president should or should not do?
“It’s all about trying to figure out what’s going on in someone’s mind,” says Julie O’Sullivan, a former federal prosecutor and law professor at Georgetown University.
In Mr. Comey’s telling, President Trump said he hoped Comey would “let go” an investigation into former National Security Adviser Michael Flynn and his dealings with Russian officials.
“I took it as a very disturbing thing, very concerning,” Comey said Thursday in testimony before the Senate Intelligence Committee. “But that’s a conclusion I'm sure the special counsel will work toward to try and understand what the intention was there and whether that’s an offense.”
Comey also asserted that Trump had asked him for a pledge of “loyalty” in a private dinner one week after the inauguration. That was a highly unusual request for a president to make of an FBI director, who is meant to function as an independent actor. Comey said he acceded to a pledge of “honest loyalty,” clearly uncomfortable with the phrase but not wanting to belabor the point.
Trump’s lawyer denied the request for loyalty
News was made: Comey revealed that it was he who leaked key content of his memos – contemporaneous notes about interactions with Trump both before and after he became president – to a New York Times reporter via a friend who teaches law at Columbia University.
And in the quote of the day, he expressed hope that Trump had indeed taped their Oval Office conversation about Mr. Flynn, suggesting it would bear out Comey’s version.
“Lordy, I hope there are tapes,” Comey said.
Republicans spun Comey’s testimony differently, saying it showed Trump as someone new to government and unsure of appropriate behavior for a president of the United States.
When Trump discussed the Flynn investigation with Comey in the Oval Office on Feb. 14, a day after Flynn’s firing, the president had first asked the others in the room to leave, according to Comey – including Attorney General Jeff Sessions. That created an awkward dynamic that, to some legal observers, suggested an effort by Trump to obstruct justice.
But to House Speaker Paul Ryan, Trump’s handling of the meeting showed that he wasn’t steeped in the protocols of how a president interacts with law enforcement.
“The president’s new at this,” Speaker Ryan told reporters Thursday. “He’s new at government.”
The weight of history hung heavy in the Senate committee room. Two presidents in recent decades, Richard Nixon and Bill Clinton, faced impeachment proceedings that centered in part on obstruction of justice.
In the eyes of some members of Congress and legal observers, Trump’s behavior did rise to the level of obstruction of justice. But Comey did not offer such a conclusion, and was not expected to. His job as head of the FBI was simply to find facts, not formulate charges. As a witness to Trump’s behavior, he took the same approach.
But in saying that the new special counsel, Robert Mueller, would address that question in his investigation of Russian meddling in the 2016 US election, Comey laid down a road map for how one could conclude that Trump had obstructed justice. Comey said he was “stunned” by Trump’s request regarding Flynn, and that top FBI officials found that point to be of “investigative interest.”
“Why did he kick everybody out of the Oval Office?” Comey said. “That, to me as an investigator, is a very significant fact.”
'A consciousness of guilt'
That Trump is an outside-the-box president is beyond dispute. His unorthodox behavior – from unfiltered tweets, to “politically incorrect” assertions, to a rejection of presidential norms – stems from a free-wheeling career in business and entertainment, and no background in politics or public service.
In the modern era, most presidents have sought to expand the bounds of presidential power through executive action. But there’s a difference between aggressive moves to enact policy and possibly crossing legal lines to achieve other goals.
“I would draw a distinction between the kinds of things that presidents do in pushing the bounds of their constitutional powers toward a policy end and pushing the envelope of presidential power in the realm of a criminal investigation,” says Barbara Perry, director of presidential studies at the University of Virginia’s Miller Center.
Legal experts cite as an example Trump’s decision on Feb. 14 to ask others, including Mr. Sessions, to leave the Oval Office so he could discuss the Flynn investigation one-on-one with Comey, as recounted by Comey. Trump’s statement that he hoped Comey would “let this go,” according to Comey, in and of itself doesn’t prove that Trump knew he may have been crossing a line – particularly given suggestions that Trump may not have known better. But other factors may be troubling.
“To some extent, I could buy that, because he isn’t a politician of the sort we usually have,” says Ms. O’Sullivan of Georgetown University. “But he asked [Vice President] Pence and Sessions, [Comey’s] boss, to leave the room. That indicates a consciousness of guilt – that he was about to do something that he didn’t want other people to know about.”
Jens Ohlin, a law professor at Cornell University, agrees that Trump’s Oval Office comment to Comey about Flynn is not, on its own, necessarily proof of obstruction of justice.
“But that, combined with the decision to fire Comey, starts to look like obstruction of justice,” says Dr. Ohlin. “Trump asking him to stop the investigation, then Trump firing him, then Trump admitting in a TV interview that he fired him because of the Russia investigation – all of that together is, I think, very significant.”
The legal definition of “obstruction of justice” entails not just the action itself, but a corrupt intent to engage in influencing, obstructing, or impeding justice.
For Trump, however, the danger would not come in a courtroom, but in Congress, in the event of an impeachment attempt. Impeachment is a political act, but is informed by the law.
The House of Representatives is not close to launching an impeachment effort, especially with a Republican majority. But at the very least, the Comey hearing represents the latest distraction for a White House eager to focus on its policy agenda.