Comey hearings fallout? Depends on the listener.
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| Washington
Former FBI director James Comey鈥檚 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?
鈥淚t鈥檚 all about trying to figure out what鈥檚 going on in someone鈥檚 mind,鈥 says Julie O鈥橲ullivan, a former federal prosecutor and law professor at Georgetown University.
In Mr. Comey鈥檚 telling, President Trump said he hoped Comey would 鈥渓et go鈥 an investigation into former National Security Adviser Michael Flynn and his dealings with Russian officials.
鈥淚 took it as a very disturbing thing, very concerning,鈥 Comey said听Thursday听in testimony before the Senate Intelligence Committee. 鈥淏ut that鈥檚 a conclusion I'm sure the special counsel will work toward to try and understand what the intention was there and whether that鈥檚 an offense.鈥澨
Comey also asserted that Trump had asked him for a pledge of 鈥渓oyalty鈥 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 鈥渉onest loyalty,鈥 clearly uncomfortable with the phrase but not wanting to belabor the point.听
Trump鈥檚 lawyer denied the request for loyalty
News was made: Comey revealed that it was he who leaked key content of his memos 鈥 contemporaneous notes about interactions with Trump both before and after he became president 鈥 to a New York Times reporter via a friend who teaches law at Columbia University.听
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鈥檚 version.听
鈥淟ordy, I hope there are tapes,鈥 Comey said.听
Republicans spun Comey鈥檚 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鈥檚 firing, the president had first asked the others in the room to leave, according to Comey 鈥 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鈥檚 handling of the meeting showed that he wasn鈥檛 steeped in the protocols of how a president interacts with law enforcement.听
鈥淭he president鈥檚 new at this,鈥 Speaker Ryan told reporters Thursday. 鈥淗e鈥檚 new at government.鈥澨
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鈥檚 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鈥檚 behavior, he took the same approach.听听
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 鈥渟tunned鈥 by Trump鈥檚 request regarding Flynn, and that top FBI officials found that point to be of 鈥渋nvestigative interest.鈥
鈥淲hy did he kick everybody out of the Oval Office?鈥 Comey said. 鈥淭hat, to me as an investigator, is a very significant fact.鈥
'A consciousness of guilt'
That Trump is an outside-the-box president is beyond dispute. His unorthodox behavior 鈥 from unfiltered tweets, to 鈥減olitically incorrect鈥 assertions, to a听rejection of presidential norms听鈥 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鈥檚 a difference between aggressive moves to enact policy and possibly crossing legal lines to achieve other goals.
鈥淚 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,鈥 says Barbara Perry, director of presidential studies at the University of Virginia鈥檚 Miller Center.
Legal experts cite as an example Trump鈥檚 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鈥檚 statement that he hoped Comey would 鈥渓et this go,鈥 according to Comey, in and of itself doesn鈥檛 prove that Trump knew he may have been crossing a line 鈥 particularly given suggestions that Trump may not have known better.听But other factors may be troubling.
鈥淭o some extent, I could buy that, because he isn鈥檛 a politician of the sort we usually have,鈥 says Ms. O鈥橲ullivan of Georgetown University. 鈥淏ut he asked [Vice President]听Pence and Sessions, [Comey鈥檚] boss, to leave the room. That indicates a consciousness of guilt 鈥 that he was about to do something that he didn鈥檛 want other people to know about.鈥
Jens Ohlin, a law professor at Cornell University, agrees that Trump鈥檚 Oval Office comment to Comey about Flynn is not, on its own, necessarily proof of obstruction of justice.听
鈥淏ut that, combined with the decision to fire Comey, starts to look like obstruction of justice,鈥 says Dr. Ohlin. 鈥淭rump 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 鈥撎齛ll of that together is, I think, very significant.鈥澨
The legal definition of 鈥渙bstruction of justice鈥 entails not just the action itself, but a corrupt intent to engage in influencing, obstructing, or impeding justice.听
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.听
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.