Comey-Trump Part 2 — The Lawman Versus the Tweeter

Former FBI Director James Comey’s testimony on Thursday before the Senate Intelligence Committee promises to be riveting political theatre.

Comey, backed up by his memos, is expected to testify that President Donald Trump asked him to drop the investigation of former National Security Adviser Michael Flynn.

His testimony will be credible and will strongly reinforce what Trump at one point seemed to acknowledge — Comey was fired because he continued investigating whether the Trump campaign colluded with the Kremlin in the 2016 presidential election.

Last month, Trump told Russian officials in the Oval Office that “I just fired the head of the FBI. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off.”

Well, Comey isn’t a “real nut job.” The Republican Senators on the committee will not get far trying to impeach his testimony about the conversation with Trump. Their best tactic might be to impugn Comey’s motives and integrity by claiming that he deserved to be fired for mishandling the Clinton email investigation and the Russia investigation had nothing to do with it.

The problem is, this attack line won’t work. Even if you disagree with him (and I do) Comey had a plausible basis for his handling of the Clinton email investigation, including the much criticized public announcement days before the 2016 presidential election that the FBI was reopening its investigation into the Clinton email server.

Judging by his earlier testimony before the Senate Judiciary Committee, Comey will mount a spirited defense. He explained to the committee that he had two bad options when he learned of the existence of new Clinton emails. One option was to make an announcement, which “would be really bad. There's an election in 11 days, Lordy, that would be really bad.” But, “concealing in my view would be catastrophic, not just to the FBI, but well beyond. And honestly, as between really bad and catastrophic, I said to my team we got to walk into the world of really bad,” that is notify Congress. His basic point isn’t easily dismissed: I had to make a tough “damned if you do and damned if you don’t” choice and did the best I could.

To rebut that, the Republicans will bring out the memorandum written by Deputy Attorney General Rod J. Rosenstein which concluded that Comey made “serious mistakes” by publicly announcing in July that he was closing the Clinton email investigation without charges and then publicly disclosing in late October that new emails had surfaced that required further investigation.

The problem is that no FBI director has ever been fired simply for making an error in judgment. In fact, only one director, William Sessions, has ever been fired. President Clinton took that extraordinary step because of a 161-page report, supported by the sworn statements of more than 100 FBI agents, that cited Sessions for multiple, severe ethics violation. By contrast, the Rosenstein memorandum was three pages long, mainly cited op ed articles or television interviews by former DOJ officials, did not accuse Comey of acting unethically or in bad faith, and did not even recommend firing him.

If you believe Comey was fired because the FBI dealt unfairly with Hillary Clinton, then you must also believe in the tooth fairy, the birther theory, and that President Obama wiretapped Trump Tower. In fact, the takeaway from Comey’s testimony will be that his firing had everything to do with the Russian investigation and nothing to do with the Clinton email investigation.

Here’s my prediction: on Thursday Comey will come off as a serious man giving highly believable and damaging testimony about the president of the United States.

And as certainly as the sun will rise on Thursday, Trump will be tweeting crude insults about Comey during his testimony.

Gregory J. Wallance is a writer, lawyer, former federal prosecutor, serving as assistant U.S. Attorney for the Eastern District of New York from 1979 to 1985. His next book, The Woman Who Fought An Empire: Sarah Aaronsohn and Her Nili Spy Ring, is due out in early 2018. Follow on Twitter, @gregorywallance.

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