Preliminary thoughts on the “Comey memo” [UPDATED]

I want to pick up on a point John made in a post earlier tonight regarding the New York Times’ claim that President Trump asked James Comey to stop the Flynn investigation. John wrote:

[W]hat if Comey hadn’t been fired? Would we have heard anything about. . .alleged efforts by the president to influence the Flynn investigation? Presumably not. The conversation documented by the memo took place in February, and we are only now learning about the memo and Comey’s purported belief that Trump was improperly trying to influence the investigation–a claim that Comey apparently was willing to keep to himself as long as he was retained as FBI Director.

(Emphasis added)

To me this means either that Comey did not believe Trump was trying to influence the Flynn investigation or that Comey acted improperly by not doing or saying anything about the alleged attempt. As Sen. Lindsey Graham says:

If this happened, the FBI director should have done something about it or quit. If the president asked the FBI director to do something inappropriate, the FBI director should have said no and quit.

One thing Comey could have done short of quitting is inform the Senate Intelligence Committee of Trump’s alleged statement. But according to Sen. Richard Burr, the Senate Intelligence Committee chairman with whom Comey had a good relationship:

[T]he director might have told us that there’d been a request like that [but] it was never mentioned by him. So somebody’s going to have to do more than have anonymous sources on this one for me to believe that there’s something there.

The excuse offered in the New York Times story for Comey’s inaction is that he was afraid the details of his conversation with Trump might influence the investigation. But if Comey had resigned in protest, we would be in the same place we’re at now — Comey would be out and the alleged conversation would be in the public domain (with more credibility behind it).

In addition, it seems unlikely that Comey telling Sen. Burr about the conversation behind closed doors would have had any influence on the investigation. Comey’s excuse, or the one offered on this behalf, seems lame. His apparent claim that Trump told him, in effect, to back off of the Flynn investigation is subject to doubt.

That said, the allegation is serious, as David French explains. If Trump asked Comey if he could see his way clear to letting Flynn “go” and added that he hoped for this outcome, that would be an improper attempt to influence the investigation, in my view. Add to that the fact that Trump fired Comey when he didn’t let the Flynn investigation go, and at first offered a false reason (the Rosenstein memo) for this decision, and the impropriety would be compounded.

My view has been that Trump fired Comey due to unhappiness with the Russia investigation, but that the unhappiness stemmed not from fear that the investigation would implicate Trump. Rather, Trump was upset because he thought the investigation was dragging on too long and causing him too much negative coverage.

If Trump had the conversation with the FBI director that the New York Times says Comey’s memo depicts, this would tell us that Trump’s unhappiness with the investigation stemmed at least in part from a desire to protect Michael Flynn.

But whatever the source of Trump’s unhappiness with the investigation, it would have been improper to ask if Comey could see his way clear to handle it a certain way and to express the hope that Comey would act accordingly. It would also be improper to fire Comey for not complying, or for any conduct short of clear investigative or prosecutorial misconduct, related to the investigation.

Congress will subpoena the Comey memo, if necessary to obtain it. The memo won’t be conclusive as to what Trump told Comey. It is possible that Comey’s version of the conversation isn’t true.

However if comes down to it, many people, including more than a few Republicans, will be inclined to believe what Comey wrote in a memo shortly after the alleged conversation rather than what Trump says now.

Maybe it is President Trump who should be hoping there’s a tape recording of the conversation.

UPDATE: Gregg Jarrett of Fox News argues that if Comey believed the president’s statements to him amounted to obstruction of justice, then Comey himself committed a crime unless he promptly reported those statements to the Department of Justice. However, if Comey concluded that Trump’s language was vague, ambiguous or elliptical, then he had no duty under the law to report it because the statements weren’t criminal.

From all that appears, Comey did not report Trump’s statements to the DOJ. A memo to the file, even if shared with a few confidantes, wouldn’t constitute the reporting required in the event Comey believed Trump committed a crime.

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