The worst-case scenario for President Donald Trump when former FBI Director James Comey testifies before the Senate this week might be if he refuses to answer questions about their meetings because they’re part of a criminal investigation.
While, in a general sense, that’s widely understood and open to different interpretations, it would make for uncomfortable headlines. But that is also thought to be one of the more likely outcomes of at least portions of Comey’s testimony.
The key issue for obstruction of justice purposes is how much pressure the President was putting on Comey to drop the investigation and whether he was threatened with being fired if he did not drop it
Richard Painter, a professor at the University of Minnesota Law School who served as the chief ethics lawyer under President George W. Bush
Because Comey clearly has a story to tell. His not telling it may indicate that the president is in fact at jeopardy from the criminal probe now being handled by former FBI director and now special counsel Robert Mueller.
Comey was overseeing the federal investigation into Russian measures to disrupt the 2016 election, and possible collusion in them by Trump’s campaign when the president abruptly fired him. If there was doubt about the reason for Comey’s dismissal, Trump cleared it up by telling NBC News’ Lester Holt that the Russia probe had weighed on him.
“I said to myself, I said ‘You know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should have won’,” Trump said.
Comey kept detailed notes on his meetings with the president, and some contain damaging moments. Comey associates told McClatchy that at one of those meetings, according to Comey’s memo, Trump asked Comey for his loyalty. Another moment Comey reportedly memorialized in a memo was Trump asking Comey to back off investigating his first national security adviser, retired Army Lt. Gen. Michael Flynn.
But Comey’s not likely to reveal that in his testimony Thursday.
Comey has met with Mueller and hashed out which topics are in-bounds, and which are best to avoid in order to protect Mueller’s investigation.
Paul Butler, a professor at Georgetown University Law School and a former federal prosecutor who specialized in public corruption cases, cautioned that it’s important not to read too much into questions Comey shies away from answering. The timing, he noted, is difficult.
“I doubt that Mueller is near a decision about whether to bring charges against anyone,” he said in an email response to questions. “He’s just putting his team together. If Comey is not forthcoming, it would just be a sign that Mueller is carefully protecting all of his options.”
Both Comey and Mueller, however, are highly aware of what can go wrong.
“There’s a history of Congressional investigations messing up criminal prosecutions,” Butler said.
Members of both houses of Congress shied away last week from predicting what Comey will say. Based on what he’s said in the past, that’s a fool’s game.
But they explained that they are certainly curious. In a March hearing before the House Intelligence Committee, Comey for the first time announced the full scope of what had been known until then as the Russia investigation.
In that hearing, he said: “I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts.”
He added, “As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.”
That statement turned the public perception of the investigation on its head.
Richard Painter, a professor at the University of Minnesota Law School, who served as the chief ethics lawyer under President George W. Bush, said he had no idea what Comey might say. He did, however, have an idea of what would be important to hear, and that would be anything that hints that the Mueller investigation is looking at potential obstruction of justice.
“The key issue for obstruction of justice purposes is how much pressure the president was putting on Comey to drop the investigation, and whether he was threatened with being fired if he did not drop it,” Painter said in an email response to questions.