One of the least remarked upon – but I think most significant – parts of James Comey’s testimony yesterday was about the nature of the assurance he gave President Trump about whether he was the subject of the investigation. I think it sheds some important light on the nature of the investigation and – I suspect – why Comey was reluctant to make it public.
This detail came up in Comey’s exchange with Senator Warner and turned on a discussion Comey had with his top advisors, the “leadership team” at the FBI, which he referred to obliquely. This was a discussion about what to tell President Trump about the nature of the investigation and whether he as a target.
Comey said the FBI had ‘opened files’ on a specific set of individuals. Trump was not one of them. This in itself is a key fact since, implicitly, this quite likely means investigators had found no evidence specifically incriminating Trump. Otherwise they would have opened such a file, started a specific investigation of him. It seems clear that that had not happened prior to Comey’s being fired.
However, at least one of Comey’s top deputies made the rather obvious point that it was an investigation into possible collusion between Trump’s campaign and Russia. The existence of such collusion would inevitably turn to the head of the campaign, Trump. What did he know? What did he do? etc. In other words, at least one of Comey’s top advisors thought the assurance was misleading, even if narrowly accurate. Comey thought it was accurate enough and decided to give the assurance.
Here’s the key exchange in the testimony …
WARNER: And my understanding is, prior to your meeting on January 6th, you discussed with your leadership team whether or not you should be prepared to assure then President-Elect Trump that the FBI was not investigating him personally.
Now, my understanding is your leadership team agreed with that. But was that a unanimous decision? Was there any debate about that?
COMEY: Was it unanimous? One of the members of the leadership team had a view that, although it was technically true, we did not have a counterintelligence file case open on then-President-elect Trump.
His concern was, because we’re looking at the potential — again, that’s the subject of the investigation — coordination between the campaign and Russia, because it was President Trump — President-elect Trump’s campaign, this person’s view was, inevitably, his behavior, his conduct will fall within the scope of that work.
And so he was reluctant to make the statement that I made. I disagreed. I thought it was fair to say what was literally true: There is not a counterintelligence investigation of Mr. Trump. And I decided, in the moment, to say it, given the nature of our conversation.
Comey as always is quite precise. “I thought it was fair to say what was literally true.”
I’m not sure that’s wrong – Comey’s decision to give the assurance based on this reasoning. But I’m not sure Trump fully grasped the nature of the assurance. In fact, it seems quite clear he didn’t. One also gets the sense Comey didn’t walk the President through the narrowness of the assurance.
More importantly, many are treating the fact of this assurance – delivered three times – as Trump’s having received a clean bill of health on the collusion front. That is clearly not the case. To the degree we can judge on the basis of Comey’s testimony, it is likely more accurate to say that Trump’s potential role remains an open question but that investigators have yet to find specific evidence pointing to Trump’s collusion or evidence specific enough to open an investigation.
That is a very different thing.
