Of all of the many, typically colorful words that Donald Trump has expressed since he officially entered national politics two years ago, it’s two alleged utterances of hope on Feb. 14 in a private meeting with then–FBI Director James Comey on which his political and legal future could rest.
“I hope you can see your way clear to letting this go, to letting [former National Security Adviser Michael] Flynn go,” Trump said, according to the notes Comey took down “immediately” after that meeting. “He is a good guy. I hope you can let this go.” (Trump, through his lawyer, says that he “never, in form or substance … suggest[ed] that Mr. Comey ‘let Flynn go.’ ”)
Comey explained during his open Senate Intelligence Committee testimony Thursday morning, in a slammed hearing room in the Hart Office Building, that he interpreted this as a threat to back off of the Flynn case. He focused on how the setting—President Trump had cleared the room of multiple other high-ranking officials—gave him the impression that something would be said there that shouldn’t be. And so it allegedly was. Comey repeated his interpretation throughout the hearing, during which the former director was in a relatively loose, conversant mood. And Comey said, multiple times, that he believed he was fired for the way he was pursuing the Russia investigation, noting that the president has publicly admitted as much.
“When a president of the United States, in the Oval Office says something like ‘I hope’ or ‘I suggest,’ ” Maine Sen. Angus King asked Comey, “do you take that as a directive?”
“Yes,” Comey responded.
Republican senators on the panel had come prepared to litigate Comey’s interpretation.
“Now, like me, you probably did hundreds of cases, maybe thousands of cases, charging people with criminal offenses,” Idaho Sen. Jim Risch, a former prosecutor, said to Comey. “Do you know of any case where a person has been charged for obstruction of justice, or for that matter any other criminal offense, where they said, or thought, that they ‘hoped’ for an outcome?”
“I don’t know well enough to answer,” Comey said. (For the record, the 8th U.S. Circuit Court of Appeals has ruled that the words I hope can qualify as obstruction of justice.) He added, though, that he “took it as a direction.”
“When it’s the president of the United States with me alone, saying ‘I hope this,’ ” he continued, “I took it as: This is what he wants me to do.”
Oklahoma Sen. James Lankford, meanwhile, pressed Comey on whether anyone else—the president, the White House staff, the director of national intelligence, the attorney general, or anyone from the Justice Department or the National Security Agency—followed up on the perceived pressuring. “No,” Comey said, in response to all of them.
“If this seems to be something the president is trying to get you to drop it,” Lankford said, “this seems like a pretty light touch to drop it.”
Democrats on the panel greeted Comey’s interpretation of a threat. “When a robber [holds] a gun to somebody’s head and [says] ‘I hope you will give me your wallet,’ ” California Sen. Kamala Harris, another former prosecutor, said, “The word hope [is] not the most operative word at that moment.”
Trump’s alleged utterance of hope was so heavily litigated because it could anchor an obstruction of justice case: The president made a “directive” to Comey to make an investigation “go away,” and then fired Comey when he disobeyed. So did Comey’s testimony, both in his prepared, submitted statement and in his appearance Thursday, rise to the level of an obstruction of justice case?
California Democratic Rep. Brad Sherman, who watched the hearing from inside the chamber, had announced this week that he was drafting articles of impeachment. He argued after the hearing that Comey’s testimony met the description for one specific obstruction statute he’s been looking at which, in his words, “focuses on whether there were threats designed to prevent reporting of information on a crime.”
“I believe I heard Director Comey say he viewed himself as being threatened,” Sherman said. “So that checks off that box.”
I asked him, though, how strong the case would be if it hinged on Comey’s interpretation of a threat, which Trump denies.
He found the language itself condemning enough without interpretation. “It’s first, what language was spoken, second, how do reasonable people interpret it, and third, how was it actually interpreted by the person who heard it,” he said. “And now we know how it was interpreted.”
Not all Democrats treated it as such a slam-dunk case.
“It’s the prosecutor’s call,” Sen. Tim Kaine said, offering a similar response as Comey himself about whether this constituted obstruction. In this case, that would be special counsel Robert Mueller. Kaine said, though, that when looking at obstruction, the Flynn conversation would be the “intent,” while the firing of Comey would be the obstruction.
“When you fire the person who’s investigating you,” Kaine said, “and then you tell people who are connected in that investigation—[Russian Ambassador to the U.S. Sergey] Kislyak and [Russian Foreign Minister Sergey] Lavrov—one day later, ‘The pressure’s off on the investigation,’ it’s the firing that is the action.”
“That line alone is not obstruction of justice,” Connecticut Sen. Richard Blumenthal told me. “It has to be seen with the setting, and the people who did it.
“If Donald Trump had looked in the mirror and said, ‘I hope they go easy on Flynn,’ ” he said, “it wouldn’t have been obstruction of justice, right? He’s talking to the head of the FBI, he has already said he wants a pledge of loyalty; it has to be seen with the body language.”
Oregon Sen. Ron Wyden, a member of the Intelligence Committee, told reporters that “the lawyers are going to dig in to obstruction of justice” to determine whether they have the case. “I ran a legal aid office for the elderly,” he said. “My wife said she’d marry me because I wasn’t a real lawyer. So I’m going to let them deal with it.
“But I believe that the evidence just keeps piling up,” he continued, “that there has been a very real presidential abuse of power.”
If Trump’s actions don’t amount to obstruction of justice, I asked him, but instead wind up categorized in the hazier realm of “abuse of power,” what’s the recourse?
“As you know, there are a whole host of remedies,” he said. “You all have been asking, rushing up to [members of Congress] asking, ‘Are you for impeachment?’ I’m trying to do my job.”
After the hearing, most Republican senators leaned heavily on the excuse that they hadn’t seen or read the testimony yet and thus couldn’t comment—or could only comment selectively.
“I want to review his testimony more closely and assess precisely what he testified to,” Texas Sen. Ted Cruz told reporters when asked for his thoughts. He responded, again, that he wanted to “review the testimony carefully and not jump to any conclusions,” when asked about Comey’s belief that Trump had directed him to stand down on Flynn. When asked whether it troubled him that Comey had asked a friend to go to the press with the contents of a memo, though, Cruz had no trouble answering that. “Yes,” he said.
South Carolina Sen. Lindsey Graham, on the other hand, was straightforward in saying that “there’s not much to investigate when it comes to obstruction of justice.”
“I think that the special counsel [Robert Mueller] doesn’t think it rises to the level of obstruction of justice, because if he did, he wouldn’t let Comey testify,” Graham speculated. “If you think the special counsel believes there’s obstruction of justice, he’s the biggest idiot in the world to let his chief witness go through this. Mueller’s not an idiot.”
Graham put it like this to reporters: What did you learn from the hearing that you didn’t know going in? Though he meant this rhetorically, we learned plenty. Comey’s prepared statement that was published Wednesday laid out of the facts of his interactions with Trump, including the discussion of Flynn. During the hearing, we learned Comey’s interpretation of those facts: He viewed what Trump had said to him as a threat, one that Trump carried out through his firing.
Does that move the ball toward a true legal case against the president? Trump can only hope that Mueller lets this go.
