Former FBI Director James Comey is testifying on Capitol Hill today and giving the most anticipated Senate testimony in decades. Broadcasters and cable networks are covering what Comey says about his interactions with President Donald Trump as if the ghost of Richard Nixon had promised to reveal the 18 missing minutes of tape. The Los Angeles Times asked people to tell them about their Comey-testimony parties to add to their coverage. CNN’s Chris Cillizza calls it “Washington’s Super Bowl,” and predicted on Tuesday that “the story Comey presumably has to tell is a humdinger.”
As it happens, Comey tipped his hand by asking the Senate Intelligence Committee to release his prepared opening statement on Wednesday in advance of the hearing. Without a doubt, Comey has a few humdinger anecdotes to tell, but the sum of the parts of this testimony doesn’t add up to a president attempting to obstruct justice, as some clearly hoped and anticipated. Instead, it paints a more nuanced and still troubling picture of a chief executive who still had not adapted to a very new job and perhaps is still unaware of the necessity to do so.
The most troublesome point to arise since Comey’s firing a month ago was a meeting between himself and Trump in mid-February, shortly after the resignation of national security adviser Michael Flynn. News of this meeting leaked out weeks ago, including a request made by Trump in private about whether the FBI could drop its probe on Flynn and a contemporaneous memo written by Comey about the exchange. On its face, the existence of the exchange suggested an attempt to obstruct the FBI in its probe of Russian interference in the election.
From Comey’s sworn testimony, however, the case for obstruction or tampering falls apart. Trump awkwardly raises the Flynn topic, telling Comey that Flynn was “a good guy [who] has been through a lot,” and that Trump hoped that Comey could “see your way clear to letting this go, to letting Flynn go.” However, Comey interpreted that as just the issue of false statements to Vice President Mike Pence regarding Flynn’s conversations with Russian Ambassador Sergei Kislyak, not the Russian-influence investigation.
In a later conversation, Trump complained to Comey about the “cloud” over his presidency from the Russia investigation, but also said it would be good to find out if some of his “’satellite’ associates” had any such involvement. The intent clearly was to get Comey to publicly state that Trump himself was not the target of the investigation, an assurance that Comey admits he gave three times in private from January 6th to April 11th. That corroborates the statement Trump issued when he terminated Comey, and about which the media had expressed considerable skepticism. Nevertheless, Trump felt the need to reassure Comey in late March that he had no contact with Russian hookers as part of his emphasis on the need to publicly clear him of the investigation, which had to be one of the strangest presidential conversations to emerge in recent memory.
Law professor and analyst Jonathan Turley wrote three weeks ago that it takes more than an inquiry to constitute obstruction or tampering. While the FBI undertakes investigations as independently as possible, it still reports up the chain of the executive branch to the president. Turley notes that an obstruction or tampering charge must have a clear element of corrupt intent, and in most cases, requires an “intent to secure an unlawful benefit for oneself or another.” Because the probe hadn’t progressed enough to name targets, let alone go to a grand jury, Turley wonders what benefit would have accrued. “Encouraging leniency or advocating for an associate is improper,” Turley wrote long before Comey’s statement was published and the context revealed in full, “but not necessarily seeking an unlawful benefit for him.”
Turley hits the nail on the head. The larger issues from Comey’s statement are not legal but political. The overall impression it leaves of Trump is that of a president in over his head, and not comprehending the differences between his experience as a businessman in the private sector and the demands of governance in the public sector.
Four months ago, I wrote that Trump’s presidency was a grand experiment by voters into a longstanding hypothesis. Could a wealthy businessman managing his own company do better operating the federal government than a politician? The experiment has just begun, but it’s already apparent that the type of businessman matters in this hypothesis. A CEO of a traditional, publicly-held corporation would have a different background than that of a real-estate tycoon running a private, family-operated business. In the latter model, the only ‘constituency’ that matters is the person at the top, and everyone else’s interests get subordinated to those of the owners. Personal loyalty counts for everything, and organizational lines get shifted to meet the changing agenda of ownership.
This accounts for much of the awkwardness expressed by Comey in his meetings with Trump. Flynn had been a loyal supporter of Trump, which is one reason why Trump sees him as “a good guy,” and wants to see whether Comey might want to take it easy on him. But even before that February meeting, Comey relates an encounter a week after Trump’s inauguration where it appears the new president wants Comey to ask to keep his job – even though Trump had already assured him of keeping it in two earlier conversations.
In Comey’s recollection, Trump attempted to “create some sort of patronage relationship,” and then followed that up with repeated declarations of Trump’s need for vertical and personal loyalty. “I need loyalty, I expect loyalty,” Trump told Comey during the January 27th dinner. Comey’s first loyalty is to the Constitution and the law, however, and more broadly to the US government, not to a president, which is one reason why FBI director terms run for ten years rather than on a normal presidential cycle, as with Cabinet appointments. All three branches of the federal government rely on the FBI to remain as independent as possible of the White House, even while the bureau still reports up the White House chain of command.
Trump has yet to learn to govern in a shared-power model. A more traditional CEO who answers to a board of directors would have had a head start on that learning curve, but the Trump emerging from Comey’s testimony doesn’t appear to have even started on it. Governance in any representative republic only succeeds when it operates on recognition of shared interests and separate spheres of authority. The top-down model of personal mandates and upward loyalty works for private family-operated firms, but in governance, it creates all sorts of boundary problems and misjudgments. So far those have not been serious enough to cross the lines into genuine legal danger for Trump, but the risk for that is real unless the new president starts to recognize his limitations and adapt to the new context of his leadership.
Comey will likely embarrass Trump with today’s testimony, but his advance testimony strongly suggests that any damage won’t go beyond a bruised ego. The man who can truly do damage to Trump currently occupies the Oval Office, and who needs to accelerate on the learning curve tout suite.