On Thursday morning, former FBI director James Comey returns to a very familiar forum and a very familiar conundrum. Comey will testify before the Senate Intelligence Committee about his observations of the FBI’s investigation into possible Russian influence on the 2016 election, and especially whether any attempt to influence him by President Donald Trump played any role in his abrupt termination. Comey has an opportunity to air any anger over his firing in public as well as brief Congress on his analysis on these and other issues, free of the professional requirements for discretion during open investigations.
The problem for Comey will be whether he has enough credibility for his testimony to have enough impact to seriously change the course of the public’s interest in these topics. The reason Comey has that problem is that both Democrats and Republicans had spent nearly a year attacking Comey precisely for failing to exercise professional discretion when it mattered -- politicizing the FBI as a result.
For a short period, however, it was unclear whether Comey would get to testify at all. Last week, White House counselor Kellyanne Conway suggested that the president might invoke executive privilege to keep Comey from discussing a meeting between the two that took place in early February. This meeting is of intense interest to many as Comey will apparently tell Congress that Trump asked whether the FBI could drop its investigation into Michael Flynn after his resignation as national security adviser.
This set of circumstances would have made executive privilege a problematic claim, at least politically, as it would have signaled that Trump thought there was something to hide in that conversation. Trump himself has discussed this conversation publicly and indeed ridiculed Comey on Twitter over it not long after firing him. Comey no longer works for the federal government either, so he has no incentive to refrain from public comment – and lots of incentive to stick it to Trump, too. It’s that dynamic as well as the possibility of official obstruction of justice that has captured Congress’ interest -- and the public’s curiosity as well.
The White House thought better of a privilege claim, but that may not be the only potential limit on Comey’s testimony. Thanks to Deputy Attorney General Rod Rosenstein’s decision to retain Robert Mueller as a special counsel on the Russia-influence probe, Congress must tread lightly when it comes to the ongoing investigation. Mueller has already absorbed the Flynn matters as part of his investigation, which means that Comey might be a material witness. Fox News reporter Chad Pergram noted that committee chair Richard Burr (R-NC) plans to confer with Mueller first to “work out what’s in-bounds/out-of-bounds in public” testimony, which suggests that Comey might not get to discuss everything that’s on his mind.
At the same time, Comey might have to field some uncomfortable questions about his actions in this exchange, especially if he now characterizes the February meeting and his later firing as an attempt at obstruction of justice. Comey testified to Congress a week before his termination that he had never been pressured to end an investigation for political purposes, almost three months after the Trump meeting took place. Why didn’t Comey report it at the time, or when he first got fired, rather than waiting for the invitation from the committee to testify? Sen. Joe Manchin (D-WV), who will take part in the hearing, told CBS News he wants an answer to that question, and that might be a little difficult to answer – even if Mueller’s comfortable with that exchange in public with his potential witness.
Comey’s answer would depend greatly on his credibility with the committee members and the public. Unfortunately, Comey dissipated his credibility with both Republicans and Democrats on Capitol Hill during the FBI probe into Hillary Clinton. He outraged Democrats by publicly characterizing the conclusions of the investigation, and angered Republicans by not pursuing a prosecution over the secret e-mail system and the serial mishandling of classified data, including at least dozens of instances of Top Secret-level and above information. Having already done that once, Comey did it all over again just days before the election in a move which Democrats insist cost them the presidential election. And just before he was fired, Comey defended all those actions, leading some Democrats in Congress to call for his termination.
The Trump administration may have (wisely) foregone the privilege claim, but they apparently plan to remind everyone of Comey’s credibility issues. Rosenstein will testify before the Senate Intelligence Committee the day before Comey, in part to brief them on the decision to appoint Mueller, and on issues related to the upcoming renewal of Section 702 of the PATRIOT Act and its looser restrictions on surveillance. However, it doesn’t take too much imagination to predict that Rosenstein will also review his memo to Trump about the need to act in some manner after Comey’s usurpation of Department of Justice authority in both of his public actions in the Clinton case – and to remind some on Capitol Hill of their previous demands to terminate Comey for those transgressions as well.
Comey also may have stepped on his own credibility more recently as well. The Senate Judiciary Committee sent Comey a letter requesting answers to seven questions related to the meeting with Trump and any memos he wrote contemporaneously to record the contents of their conversation – and any other such memos written after meetings with then-President Barack Obama and officials at the Department of Justice. Per online news site Circa, Comey politely declined to answer based on now being a “private citizen.” If that’s true, some on the Intelligence Committee might question why Comey wants to talk to them about Trump but not the Judiciary Committee – and a few of the members will probably ask questions from the letter anyway.
In other words, we can expect lots of drama this week on Capitol Hill. Whether that moves the needle on these controversies remains to be seen, but given the damage done to Comey by all sides before this, don’t expect to see much that will stick past the first few news cycles in which all of this will take place.