Here’s an email from a former federal prosecutor with long experience in public corruption investigations, who thinks Comey ended up saving Trump from himself …
I’ve got a somewhat different take on the Comey statement and what it might mean from the perspective of the investigators. Bottom line is that Comey’s interactions with Trump represent a huge missed opportunity from a law enforcement standpoint. He failed to use the golden opportunity the President gave him to gather evidence of a scheme by the President to obstruct justice and potentially about the larger Russia investigation.
If I’m one of the case agents or prosecutors who he didn’t tell about these conversations, I’m pissed. First, he had key evidence about their investigation and he didn’t tell them. This evidence could have given them probable cause to get search warrants or seek wiretaps. Second, and more importantly, their boss was someone who could directly engage the President about their investigation and what appeared to be an effort to obstruct that investigation. In any other case, the investigative team would have seized this opportunity to capture unguarded conversations with a key figure in an investigation. They could have wired up Comey for conversations with the President and asked him to have further meetings/conversations with him. And Trump was ready for the picking. Comey could have gone back to him after the loyalty pledge conversation and said, “Mr. President, you asked me for my loyalty and I’m ready to give it. What can I do to demonstrate my loyalty to you, sir?” During the Flynn conversation, he could have said “Would you like me to shut it down?” No question what Trump would have said. He also could have engaged him about Manafort, Page, and the others with contacts with the Russians to try to gather facts and leads.
In my view, what Trump did say, without any prompting by Comey, was obstruction. It’s clearly sufficient to establish probable cause, which is enough to get search warrants and to indict. But man, if we had this on tape and Comey was even lightly prompting him? That’s game, set, and match for Mueller and his team.
Here’s my reply (unedited, reviewed) …
These are definitely interesting, good points. I’ll have to give them more thought. But it’s a really good point. Two things that really jumped out at me from Comey’s account is that at the end of the day Comey seemed to be going about as far as he possibly could to protect Trump from himself. Or perhaps better to say, keep Trump from doing something that would put an affirmative responsibility on Comey to take legal steps against him. One particularly striking case was when Trump’s going to get them to investigate the sex dossier and Comey basically saves him from an amazingly calamitous decision. I mean, I guess I’m not even sure that would have been legal to accept that charge? The FBI isn’t in the business of disproving things. Like how could they even start that investigation? In any case, a few overlapping things make the whole thing kind of hard to figure to me.
The first is just my lack of knowledge of running investigations. The second is that even to me the idea that they’d wire Comey and try to draw him out like that seems pretty aggressive. Perhaps part of what answers point two is that what comes through in the statement is that Comey just seemed bewildered by Trump, which I guess in some sense we all are. But at some level he seemed to treat Trump like someone who partly lacked mens rea or even know how to be a normal person. Sort of like Comey felt he needed to be judged on a curve somehow.
In any case, Comey definitely seemed to have as his top priority not getting forced to rat Trump out. Like in that one part about not telling the investigators, if I understand the implicit reasoning, they not only thought the Flynn ask was relevant to the probe, they seemed to think it was prima facie evidence of a crime but reasoned that since there was no evidence beyond Comey’s word that it would be difficult to prosecute and thus more harm than good in telling the investigators? something like that? this certainly doesn’t seem like the kind of reasoning ken starr used in the 90s.
And the reply …
Very good questions. To be clear, I don’t think Comey did anything improper. In many ways, he handled an extraordinarily difficult situation in a laudable way. My concern is that by keeping this critical information from the investigative team, he foreclosed the opportunity to use this information in a way to advance their investigation. Again, he seems to have lost focus on his law enforcement mission and again seemed to elevate his own reputation and the perception of the FBI above all else. A couple additional points on your observations:
1. Yes, it was very bizarre for the President to consider using the FBI to investigate the dossier. It would be totally improper for the President to dispatch the FBI to conduct an investigation for the President’s own personal vindication. To me, this just sounds like another example of Trump trying too hard to act innocent and set up a defense (i.e., “why would I ask the FBI to investigate that if I thought there was anything there?”)
2. Yes, wiring Comey would be aggressive. But I seem to recall intense efforts by Starr’s team to get Lewinsky to cooperate and potentially record conversations with Clinton (need to confirm). And, but for this being the POTUS, this would be a routine step in a normal investigation. If this were the Mayor of Detroit or the CEO of Wells Fargo, for example, agents would be salivating at this kind of opportunity.
3. I’m also skeptical of the rationale for not disclosing to the investigators. There would be no “legal taint” on disclosing the information to them. The argument that they might be affected by it (or improperly influenced) doesn’t make sense. Agents are supposed to be guided by the evidence, not shielded from it. This would have influenced them, I think, but not to back off or shut it down.
