Does Comey’s draft statement on Clinton show he lied to Congress?

It’s getting drafty around here. Special Counsel Robert Mueller reportedly is scrutinizing President Trump’s draft statement explaining the firing of James Comey. Meanwhile, Senators Grassley and Graham have complained that Comey drafted statements exonerating Hillary Clinton before the FBI interviewed her and other seemingly material witnesses.

Good thing I don’t write draft blog posts.

Comey’s draft statements have caused some to question the truthfulness of testimony he gave to Congress. On Fox News last night, at least one member of Bret Baier’s panel argued that Comey lied to Congress in testimony delivered last September.

The Daily Caller makes the same suggestion. It relies on Comey’s testimony at a House Judicial Oversight hearing on September 28, 2016. Comey testified that he did not make the decision not to charge Clinton before she was interviewed on July 2. To drive home the point, he added:

If colleagues of ours believe I am lying about when I made this decision, please urge them to contact me privately so we can have a conversation about this. All I can do is tell you again, the decision was made after [the Clinton interview] because I didn’t know what was going to happen in that interview.

However, Comey also explained it was possible Clinton would lie during the interview. This point is crucial to the question of whether Comey lied to Congress, it seems to me.

Even if Comey was certain prior to the interview with Clinton that she had not violated the Espionage Act or any other criminal law, to the point where nothing she could say to the FBI could change his view, it was still possible she would lie to the FBI about material facts. In that event, Comey might have decided to prosecute her for doing so.

Thus, Comey could only make the call on prosecuting Clinton after the interview, and was not lying to Congress when he said he made the call only then.

In addition, it’s not entirely clear to me that Comey was so wedded to his view that Clinton shouldn’t be prosecuted that he couldn’t have changed his mind based on the interview with her, or with others who were interviewed late in the process. He may have been, but I don’t think we can so say for sure based on the fact that he had already drafted and circulated statements of exoneration. Many of us can probably think of cases where we drafted something one way, but came out another way in the end.

This is not to say that Comey was being completely forthright with Congress. In fact, I think he was being cagey, as is his wont. Anyone on either side of the political divide who still considers Comey a “stand up guy” should have his or her head examined.

But I don’t think he lied to Congress about when he made the decision not to prosecute Clinton.

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