Comey Testimony Proves To Be Neither Vindicating Nor Incriminating For Trump

donald_trump_president-elect_portrait_croppedBelow is my column in USA Today on the current status of the evidence against President Donald Trump for either indictment or impeachment.  While I do not agree with the White House that former FBI Director James Comey 
“completely vindicated” the President, I do not believe that the testimony materially altered the legal position of the President.  I believe that Comey both helped and hurt himself.  He did an excellent job in explaining why he only discussed the content of the memos with his staff, but he also admitted to being a leaker and showed repeated failures in ethical confrontations with superiors.  There is reportedly a call for Comey to return.  He may find the return appearance more challenging than the first.

The release of former FBI director James Comey’s testimony on Wednesday was received with the same breathless reactions that have long characterized coverage of the Russian investigation. CNN ran comments that the Comey testimony was nothing short of the Watergate tapes.  The desire for some indictable or impeachable offense by President Trump has distorted the legal analysis to an alarming degree. Analysts seem far too thrilled by the possibility of a crime by Trump. The legal fact is that Comey’s testimony does not establish a prima facie — or even a strong — case for obstruction.

440px-Janet_Reno-us-Portrait225px-Bill_ClintonIt is certainly true that if Trump made these comments, his conduct is wildly inappropriate. However, talking like Tony Soprano does not make you Tony Soprano. Trump is not the first president to express dissatisfaction with an investigation by the Justice Department. Former president Bill Clinton made clear his own dissatisfaction with the investigations of his administration under then-Attorney General Janet Reno. It is no surprise that Trump wanted to see these investigations end. Indeed, he had a virtual hashtag to that effect.

The crime of obstruction of justice has not been defined as broadly as suggested by commentators. While there are a couple of courts with more expansive interpretations, the crime is generally linked to obstructing a pending proceeding as opposed to an investigation. Most courts have rejected the application of obstruction provisions to mere investigations. The manual used by federal prosecutors makes that same distinction. Even if a prosecutor was able to extend the definition of obstruction, there would remain the need to show that Trump sought to “corruptly” influence the investigation. Trump telling Comey that Michael Flynn is “a good guy,” and that he hoped Comey would let the matter drop is hardly a “cancer,” let alone a crime, growing on the presidency.

Flynn had just resigned the day before Trump allegedly asked Comey whether he could now drop the investigation of Flynn. Trump had been told by Comey that he is not under investigation (three alleged confirmations by Comey that are equally inappropriate). Trump could say he felt Flynn had suffered enough. For a defense lawyer, a charge of obstruction on these facts would be a target-rich environment.

The mere fact that Trump asked to speak to Comey alone would not implicate the president in obstruction. Trump could argue that he sought to exclude Attorney General Jeff Sessions and others who were facing calls for recusal in the investigation. He could claim that he viewed this as a personal inquiry on behalf of a friend. He was, of course, wrong. Dead wrong in asking such a grossly improper question. However, to treat the desire of a private conversation as inescapable evidence of obstruction is to deny the obvious defenses in the case.

In the end, a prosecutor should never seek to indict a president absent a lead-pipe cinch of a case. This is no lead-pipe cinch. Of course, there is also the problem of actually indicting a sitting president if there was a crime and evidence to fit it. Many academics believe that a sitting president cannot be indicted. It remains an open question. After all, judges have faced indictment before impeachments. Yet, the president remains the head of the executive branch handling such prosecutions.

220px-Richard_NixonThe proper course is for a president to be impeached and removed before any prosecution. It is no gift to a president. Impeachments are not subject to the rules of evidence or even the criminal code. Presidents can face a much broader array of evidentiary demands with far less protection under due process rules. A president can also be impeached for acts that are not technically crimes. Abuse of office is a classic example. However, analogies to Watergate show little understanding of those articles of impeachment. The first article against President Nixon was an obstruction allegation, but it was expressly linked to actual and serious crimes, including the criminal break-in at the Watergate. The article specifically listed an array of personal actions taken by Nixon and his subordinates to procure false statements, obstruct investigators, and “to conceal the existence and scope of other unlawful covert activities.”

Ironically, those who want a criminal charge on this record are committing the very offense that they accuse Trump of committing: disregarding the law to achieve their desired goal. It would be a highly dangerous interpretation to allow obstruction charges at this stage. If prosecutors can charge people at the investigation stage of cases, a wide array of comments or conduct could be criminalized. It is quite common to have such issues arise early in criminal cases. Courts have limited the crime precisely to avoid this type of open-ended crime where prosecutors could threaten potential witnesses with charges unless they cooperated.

We do not indict or impeach people for being boorish or clueless … or simply being Donald Trump.


Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter @JonathanTurley.

97 thoughts on “Comey Testimony Proves To Be Neither Vindicating Nor Incriminating For Trump”

  1. Is there some alt-right nut-case publication that refers its reader to this website to make the blog more stupid and unreadable?

  2. @ anonymous, June 11, 2017 at 10:17 pm

    “Although these Hoover successors, now occupying center stage in the investigation of President Trump, have been hailed for their impeccable character by much of Official Washington, the truth is, as top law enforcement officials of the George W. Bush Administration (Mueller as FBI Director and James Comey as Deputy Attorney General), both presided over post-9/11 cover-ups and secret abuses of the Constitution, enabled Bush-Cheney fabrications used to launch wrongful wars, and exhibited plain vanilla incompetence.”

    Also see this revealing ACLU assessment of Comey when he was nominated by Obama to head the FBI:

  3. @TBob, June 11, 2017 at 7:31 pm

    “I don’t know what he knows for sure, but Grassley is pursuing this.[question of Comey's leaking].

    “There’s more to come out on all of this.”

    That may very well be, and I, for one, will be glad to learn what Grassley comes up with.What I was objecting to was “Prayer Medic’s” assertion, without offering any evidence to support it, that Grassley knew over a month ago that Comey had leaked information to the media.

    Another Trump supporter, Karen S, then took up PM’s unsupported assertion as additional proof that Trump was justified in firing Comey, so I thought an intervention of sorts was warranted before someone else took up PM’s ersatz cudgel.

    Why, it’s almost seems as though political partisans are more driven by their emotions than guided by ratiocination. 🙂


    1. Got it, thanks for the feedback. Made up an acronym to help me remember: EAR = Evidence And Ratiocination. ‘Friends, Romans, countrymen, lend me your EAR.’ 😉

  4. JUNE 8, 2017

    Comey and Mueller: Russiagate’s Mythical Heroes


    It seems clear that based on his history and close “partnership” with Comey, called “one of the closest working relationships the top ranks of the Justice Department have ever seen,” Mueller was chosen as Special Counsel not because he has integrity but because he will do what the powerful want him to do.

    Mueller didn’t speak the truth about a war he knew to be unjustified. He didn’t speak out against torture. He didn’t speak out against unconstitutional surveillance. And he didn’t tell the truth about 9/11. He is just “their man.” (The full article is linked, above.)

    Coleen Rowley, a retired FBI special agent and division legal counsel whose May 2002 memo to then-FBI Director Robert Mueller exposed some of the FBI’s pre-9/11 failures, was named one of TIME magazine’s “Persons of the Year” in 2002. Her 2003 letter to Robert Mueller in opposition to launching the Iraq War is archived in full text on the NYT and her 2013 op-ed entitled “Questions for the FBI Nominee” was published on the day of James Comey’s confirmation hearing.

    1. The beginning of Rowley’s article, which I forgot to include, above.

      “Mainstream commentators display amnesia when they describe former FBI Directors Robert Mueller and James Comey as stellar and credible law enforcement figures. Perhaps if they included J. Edgar Hoover, such fulsome praise could be put into proper perspective.

      “Although these Hoover successors, now occupying center stage in the investigation of President Trump, have been hailed for their impeccable character by much of Official Washington, the truth is, as top law enforcement officials of the George W. Bush Administration (Mueller as FBI Director and James Comey as Deputy Attorney General), both presided over post-9/11 cover-ups and secret abuses of the Constitution, enabled Bush-Cheney fabrications used to launch wrongful wars, and exhibited plain vanilla incompetence.”

  5. @ Debbie Barnhart, June 11, 2017 at 5:16 pm

    “Isn’t there some constitutional mandate for a prosecutor to act in good faith and either bring charges or determine that no charges can be brought? Comey is doing a great impression of J. Edgar Hoover”

    Yes, and here are two examples of Comey’s Hoover imitation:

    “But perhaps the gravest of Comey’s violations is that of the constitutional guarantee of due process. The essence of due process is notice and fairness. How exquisitely unfair of Comey to say, in effect, ‘We have something that warrants investigation of you, yet we don’t know its significance, so we can’t say what it is.’

    “This is reminiscent of Franz Kafka’s ‘The Trial,’ in which the lead character is being pursued for a year on unnamed charges, against which he cannot defend himself.”

    Like J. Edgar Hoover

    “Given the mainstream media’s determined promotion of Russia-gate as a legitimate scandal, the extraordinary nature of this briefing [of Trump by Comey] incident has passed largely unnoticed.

    “If, however, you substituted FBI Director J. Edgar Hoover for FBI Director Comey, the significance of the Intelligence Community’s gratuitous inclusion of such an unsubstantiated smear [the Clinton financed opposition research] might take on a different coloring. It was, after all, the decision to tack this classified annex onto the Jan. 6 report that gave the mainstream media the hook to disseminate the ‘golden shower’ accusation across the country and around the world.

    “Rather than minimizing ‘potential embarrassment to the President-elect,’ as Comey demurred, the classified annex was guaranteed to maximize Trump’s embarrassment, which it did.

    “In other words, just as Comey said he inferred an improper or illegal order when Trump expressed ‘hope’ that Flynn’s legal ordeal might end, Trump might well have deduced that Comey’s elevation of the urination story amounted to coercion or blackmail from the Intelligence Community.

    “Trump, who surely knows the shadier corners of the construction trade, might have heard something like, ‘Gee, we’d hate for your wife and children (not to mention the rest of the world) to hear this story about prostitutes peeing on you’ – and read the warning as a threat.

    “FBI Director Hoover was a master of just this sort of warning, conveyed as a sincere concern about some politician’s well-being. Trump, who has emphatically denied the salacious accusation, could well have seen Comey sending him a message from the leaders of the powerful Intelligence Community that they were determined to remove Trump or at least politically cripple him.”

  6. Robert Mueller allegedly did exactly what James Comey accused President Trump of doing.

    Georgia Congressman Bob Barr, writing in his 2011 book,

    “The Meaning of Is: The Squandered Impeachment and Wasted Legacy of William Jefferson Clinton,”

    recounted a phone call with Mueller, who was then working at the Justice Department, in which he asked

    Barr not to “go too hard on these guys.”

  7. What I can’t understand is why it takes so long to “investigate” whether Mike Flynn lied to government officials. Surely they have a paper trail of his representations. And surely those representations were not a matter of subjective judgment but were of objective, verifiable facts. So why can’t they check the facts and get on with it? And are we to believe that there was no effort made to verify the truth of those representations before he got a security clearance? Comey seems to enjoy the state of perpetual investigation that keeps him in the limelight. It seems to me, it’s Comey who was abusing his power. Isn’t there some constitutional mandate for a prosecutor to act in good faith and either bring charges or determine that no charges can be brought? Comey is doing a great impression of J. Edgar Hoover.

    1. Why, you answered your own question; you don’t understand. Unless you have personal experience as an investigator of some kind or have handled either the prosecution or the defense of a criminal charge, you would not be expected to “understand” about the process or timelines involved in the investigation of a criminal offense. You may want to sit down for this next bit, because it will make you very sad. Merely because you “don’t understand” why it takes so long for an investigation to reach a resolution doesn’t mean that the investigation is not proceeding normally.

      This is for Debbie.

  8. @Praying Medic @prayingmedic, 8:05 PM – 10 Jun 2017

    “Chuck Grassley knew Comey was leaking to the press more than a month ago:”

    Unless he told you something different, or unless you have other evidence to support your assertion, perhaps Grassley suspected that Comey had leaked information to the press, and perhaps he didn’t, but the mere fact of his having asked the question certainly doesn’t mean that he “knew Comey was leaking to the press….”

    @ Karen S, June 11, 2017 at 12:15 pm

    “So he’s a liar and allowed his personal politics to affect the integrity of his job performance. Does anyone have any more questions on why he was fired?”

    Yes, I have two:questions: how do you justify your calling Comey a liar, and when did Trump ever say that Comey’s lying about anything was a factor in his firing?

    By the way, did you call for Comey’s firing when he was acting like a Trump surrogate during the 2016 campaign, i.e., by announcing that the FBI was re-opening its investigation of Clinton?

    1. I don’t know what he knows for sure, but Grassley is pursuing this. We do know from Comey’s testimony that Hillary is the candidate who was being investigated by the FBI, but Lynch and Comey orchestrated the language so that it seemed like she wasn’t. And we know that Trump was not being investigated, but Comey let us believe that he was. There’s more to come out on all of this.

  9. So Comey writes memo/memos on Trump yet why didn’t Comey write notes or record Hillary when Comey was investigating crimes against Hillary & interviewed her for 3 hours!

    Comey needs to be brought before a grand jury somewhere like Texas or Oklahoma, aka out the DC beltway Swamp.

    Mueller needs to recuse himself or Session to fire him for colluding with Comey just before Comey testified.

    Both Comey & Mueller have a long history working together in govt to cover & hiding criminal wrong doing by those in govt.

  10. With all the leaks how come the Trump’s claim that he was told he was not being investigated was not leaked like everything else?

    How come Trump’s integrity is challenged in public, but Comey didn’t do anything about the Clinton Lynch affair?

    If the major reason for investigation was the fear of Russian interference why didn’t the FBI insist that the DNC computers were investigated by the FBI for such actions?

    Who asked for the private meeting, Comey or Trump? That answer can be inferred from Comey’s own written testimony. Why blame Trump when it sounds like Comey initiated the private meeting?

  11. The Comey testimony proves that Obama knew that he would be implicated by Hillary Clinton’s crimes so he ordered Loretta Lynch to “direct” Comey to refer to the investigation into Hillary Clinton’s emails as a “matter” instead of an “investigation” per the L.A. Times.

  12. The former head of the FBI purposely leaked information about a President with whom he was politically opposed.

    That is grim news of the state of this country. We are no longer free to vote for whomever we want. Entrenched Leftists in government agencies will only accept a ruler from their Party. Leftists citizens will engage in looting, rioting, and subversion unless they get a ruler from their Party, regardless of the results of any election. Conservatives are no longer free to seek employment or an education at publicly funded Universities. Academia preferentially hires Liberals, and either enables or engages in itself the harassment of conservative students. Conservatives may no longer engage in free speech at universities, where they are harassed by faculty members as well as fellow students. Conservatives are far more likely to lose friends and family who are Leftists over politics. Conservatives are held to a higher moral and legal standard than the Left (Hillary Clinton). Conservatives may not run a business according to their beliefs. Only Liberals are allowed to be conscientious objectors, or even engage in free speech as business owners. Conservatives may not form non profits or they will be discriminated against by the IRS. I can go on, but you get the trend.

    There is not a single civilization that has ever lasted forever. Our Republic was a shining example of freedom. We are witnessing now its decay. Eventually, we will be just another starving, violent Socialist country like Venezuela where people will starve in hospitals over the weekend because the NHS cannot get enough staff (UK) and the Socialist economy cannot generate enough revenue to give everyone their promised middle class lifestyle with the guaranteed minimum income (like the $20 monthly stipend they get in Cuba).

    1. A backlash against Trump’s authoritarianism does not signal the end of the republic.

      1. “Trump’s authoritarianism” is the limited government the American Founders established under the Preamble, Constitution and Bill of Rights, 1789, subsequent unconstitutional “amendments” notwithstanding.

        Trump has legislated, appointed and acted as the head of the executive branch per the founding documents.

        The legislative branch has deliberately slowed the implementation of his constitutional agenda for political purposes which are unclear as it declares itself of the same party.

        The judicial branch, AKA the Imperial Judiciary, has engaged in usurpation, and other clear and demonstrable crimes of high office, requiring accelerated mass impeachment and conviction, also per the Constitution – Article 2, Section 4, to be specific.

      2. A backlash against Trump’s authoritarianism d

        There is no such backlash because ‘Trump’s authoritarianism’ is fictional.

      3. “Trump’s Authoritarianism”?

        Professor Turley wrote at length about President Obama’s uber presidency, his willful disregard of the separation of powers, and his abuse of the executive order to get around Congress. Plus, there was the weaponization of government agencies such as the IRS, NSA, EPA, and much of the rest of the alphabet soup against conservatives. The AP described Obama as the least transparent President in American History. He had a poor track record of responding to FOIA’s. And it has been discovered that he not only put Americans illegally under surveillance, but the head of the intelligence community lied about it, picking the “least untruthful” statement he could make. In addition, let us not forget that Hillary Clinton sold 1/5 of American’s uranium (used for making nuclear weapons) to Russia, in exchange for a half million in speaking fees for Bill and $144 million to her foundation. And Russia benefitted Democrats by created its infamous dossier on Trump.

        Now, I ask you, if Trump did any of those things, would you call him some type of dictator? Authoritarian? Delusions of grandeur? A desire to turn America into a banana republic he could rule with a beret, cigar, and aviator sunglasses?

        For comparison, so far, Trump was discovered not to personally be under investigation with any collusion with Russia, nor was there any evidence as such. Some of his team have been illegally unmasked in their recorded conversations with the Russian Ambassador. (Why do we bother to continue diplomatic relations with Russia now that the Left have made all contact with their ambassador, or indeed any Russian official, radioactive and career ending, as long as it took place with a Republican rather than a Democrat?) People like Flynn have been recorded saying things like, please do not give up on the US and give Trump a chance. Trump has grumbled, wrongly, about the First Amendment regarding the Press. Like every other President before him, he would love to be able to muzzle the press. He can’t. He is certainly legally allowed not to invite the Press, which would be wrong, but he cannot stifle the Press. So far, the most controversial act that he has done is try to protect the US from terrorists by attempting to restrict the refugee and immigration of people from the regions and religion which are causally related to extremist Islamic terrorism. Immigration would be restricted to those we could prove were amenable to a Western lifestyle. He is again Constitutionally restricted between what he would like to do (Muslim ban) and what he is legally allowed to do (restrict immigration from regions infamous for terrorism, except for victims of said terrorism such as Yazidi and Christians.) Oh, and on that note, may I add that if we were going to preferentially aid displaced people in the most danger from the war in Syria, that would be Christians. However, we accept a far fewer number of Christian refugees from the Middle East than their percentage of the population, because it is so unsafe for them to share a refugee trail with the extremists who murder, harm, or otherwise persecute them. (You will recall the scandals of Muslim refugees from various countries throwing Christian refugees to their deaths overboard in boats. and in another instance here And yet, somehow, Muslims from a region infamous for extremism and the persecution of other faiths get expedited over the faiths they persecute. Strange convoluted logic.

        In any case, Trump has indeed made mistakes, as have been pointed out on this blog. But it is inconceivable that you could in any way call him authoritarian in comparison to Obama. Not even close.

    2. KarenS re: “Eventually, we will be just another starving, violent Socialist country like Venezuela where people will starve in hospitals over the weekend because the NHS cannot get enough staff (UK) and the Socialist economy cannot generate enough revenue to give everyone their promised middle class lifestyle with the guaranteed minimum income (like the $20 monthly stipend they get in Cuba).”

      I hope you realize this is an assault by the corporatists who own the Deep State — it’s not a partisan thing so forget the “isms” – the US has been and continues to be cannibalized by these people from both parties. It’s all about profit for the 1%ers. They want us to go away and die.

      As George Carlin pointed out – we are not in the “club”

    1. So he’s a liar and allowed his personal politics to affect the integrity of his job performance. Does anyone have any more questions on why he was fired?

      1. Since Feb, Trump’s team has been investigating to determine who is behind all the leaks coming out of his administration. What if Trump has the dirt on Comey? What if there are no Comey ‘memos’? And if there are, how do we know when they were actually written? What if the ‘tapes’ Trump tweets about are actually ‘tapes’ Comey had in his possession and Trump’s DOJ now has them? I said it at the time that there is a reason Trump fired Comey the way he did.

        Article posted below lays out an interesting timeline….


        “Notice that the President fired Comey when Comey was 3,000 miles away from his office.

        Comey had no inkling he was being cut, and that all his files, computers, and everything in his office were seized by his boss Sessions and the justice department. This was not a violation of protocol, it was tactical. Notice how Prez Trump compartmentalized the strike and did not inform any of his White House “staff” to prevent leaks. Notice how he emasculated Comey and the swamp denizens by letting them know in a tweet that the Attorney General got information (surveillance “tapes” from the seizure of Comey’s office) to let Comey and his handlers know that Trump’s DOJ has the goods on them. This was a brilliant, strategic, and totally imperative move at exactly the right time against horrible, evil and corrupt powers infesting our government.”

        1. Trump may very well tweet himself into a perjury trap. The republic did not end when impeachment proceedings were brought against Bill Clinton. Many thought the government and Ken Starr overreached in that case but Clinton did commit perjury.

          1. We’ll see. I don’t think Trump is bluffing when he says he has ‘tapes.’ Lordy, I can’t wait to hear what AG Sessions has to say this week.

  13. Trump is guilty of crimes against humanity for not addressing climate change. Indict and impeach him – and each of his successors – for that, until we get a president who takes action.

    1. Wow! Who knew. All this time and it was really about climate change. Boy, I missed that one.

      The only crime against humanity is the one your parents committed….

      So go dust your solar panels and shut up.

      Wacko blue state nut job.
      We won and you really really lost HUGE.

      TRUMP 2020
      PENCE 2024
      PENCE 2028
      Come back and talk to us in 2032….if the world is still here.

      1. Experts and media characters belong to either an asylum or behind the bars on a more evolved planet , since we are stuck on earth we just have to tolerate and help idiots become self aware one day !

    2. He did address it. He removed America from the scam called the Paris accords.

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