News Analysis
The recent congressional testimony by former FBI Director James Comey has caused no shortage of outrage over his lack of recollection and ongoing deflections.
But lost within that outrage have been a number of important facts that were actually communicated during his testimony.
Comey’s interview was notably not under oath, but he was required by law to answer questions from Congress truthfully, which has suddenly gained material weight after special counsel Robert Mueller prosecuted former Trump lawyer Michael Cohen, for lying to Congress.
Consider this crucial and telling statement by Comey regarding the Steele dossier (found on page 127 of the testimony transcript):
“What I understand by verified is we then try to replicate the source information, so that it becomes FBI investigation and our conclusions rather than a reliable source’s. That’s what I understand it, the difference to be.
“And that work wasn’t completed by the time I left in May of 2017, to my knowledge.”
Comey is telling congressional investigators the Steele dossier wasn’t verified as of May 2017. The dossier was used as the primary piece of evidence by the FBI to obtain the Carter Page FISA warrant on Oct. 21, 2016.
Former Deputy FBI Director Andrew McCabe testified to the House Intelligence Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.
The importance of Comey’s statement can’t be overemphasized. The Steele dossier was never confirmed or verified by the FBI, yet it was used by the FBI as the primary piece of evidence before the FISA Court.
Another crucial exchange occurred during an exchange with Rep. Trey Gowdy (R-S.C.). In this instance, Comey is discussing the difficulty in prosecuting Hillary Clinton, due to the inability of the FBI to prove intent—the lack of evidence proving Clinton intentionally placed classified information with another party (p. 197–198):
Gowdy: Director Comey, what element was missing in July of 2016, when you had the press conference, that might have been found in October on Anthony Weiner’s computer?
Comey: I don’t know it’s an element, but what was—the key ingredient that was missing in the Clinton investigation was any indication that she knew she was doing something she shouldn’t be doing. And so what the Weiner trove potentially held was evidence of that intention, especially in the form of the emails from her BlackBerry during her first three months as Secretary of State.
The Justice Department (DOJ) Inspector General’s report released in June generally agrees with Comey’s assessment on lack of intent, noting that “Section 793(f)(1) likely required a state of mind that was ‘so gross as to almost suggest deliberate intention,’ criminally reckless, or ‘something that falls just short of being willful,’ as well as evidence that the individuals who sent emails containing classified information ‘knowingly’ included or transferred such information onto unclassified systems.”
Comey then discussed the potential importance of the Clinton emails contained on Weiner’s laptop:
Gowdy: Tell me how the existence of that information may have impacted the element of intent.
Comey: My understanding is … the Department of Justice has always required before it will bring those misdemeanor indications of intention or harm to the United States or obstruction of justice, those kinds of things. And that was the ingredient we didn’t have in the Clinton case. And so the Weiner trove held the prospect that we—because it might contain evidence of the beginning of her use of her unclassified system, might hold that evidence. … What made Weiner’s computer a horse of a different color was the size of the trove and the emails potentially from the first three months as Secretary of State a very different kettle of fish.
Comey then clarified his thought process behind the potential value within those early emails:
Gowdy: What, in particular, in the beginning stages of her tenure would have addressed an element that you thought was missing?
Comey: Oh, that’s easy to answer. If there was going to be evidence that she knew she was communicating in a way she shouldn’t—explicit evidence—common sense tells you it’s likely to be at the beginning, when someone encountered her mode or means of communication and said: Hey, boss, you know you can’t do that. You know you can’t talk about this kind of thing or that kind of thing on an unclassified system. It’s much more likely to be at the beginning, which we never found, those three months, than much later.
Based on the IG report, it seems clear that McCabe had been briefed on—and understood—the significance of the emails on Weiner’s laptop. Less clear is when McCabe made Comey fully aware of the find on Weiner’s laptop.
We know that McCabe told the Office of the Inspector General that he recalled talking to Comey about the issue “right around the time [McCabe] found out about it.” McCabe described it as a “fly-by,” where the Weiner laptop was “like one in a list of things that we discussed.”
We also know that “text messages of FBI Deputy Assistant Director Peter Strzok indicated that he, McCabe, and Priestap discussed the Weiner laptop on Sept. 28.”
The IG report tells us: “Following the briefing from the FBI Midyear team on Oct. 27, 2016, Comey authorized the Midyear team to seek a search warrant, telling the OIG that ‘the volume of emails’ and the presence of BlackBerry emails on the Weiner laptop were ‘two highly significant facts.’ … McCabe joined this meeting by phone but was asked not to participate, and subsequently recused himself from the Midyear investigation into Clinton’s use of a private email server, on Nov. 1, 2016.”
Comey Didn’t Know Steele Worked for Fusion GPS
Another important factor to consider from Comey’s testimony are some answers to basic questions. Recall that while Comey is not under oath, recent prosecutions for lying to Congress have re-established meaningful penalties for doing so (p. 109):
Gowdy: Who is Christopher Steele?
Comey: My understanding is that Christopher Steele is a former intelligence officer of an allied nation, who prepared a series of reports in the summer of 2016 that have become known as the Steele dossier.
Gowdy: How long did he have a relationship with the FBI?
Comey: I don’t know.
Gowdy: Did you ever meet him?
Comey: No.
Gowdy: When did you learn he was working for Fusion GPS?
Comey: I don’t know that I ever knew that—certainly while I worked at the FBI.
A similar theme would later be picked up in the testimony (p. 123):
Rep. John Ratcliffe (R-Texas): Do you recall that part of the probable cause submitted to the court was the—what you’ve referred to as the Steele dossier?
Comey: I don’t.
Comey also stated he didn’t know that Steele had been terminated by the FBI as a source (p. 130):
Comey: As I sit here today, since I left the FBI, I’ve read stuff in the media about that. I don’t believe I had ever heard anything about that while I was still at the FBI.
Comey Didn’t Know Ohr Was Conduit Between Steele, FBI
Comey was equally unaware that DOJ official Bruce Ohr had an ongoing relationship with Steele, and that Ohr was transmitting information from Steele to the FBI until May 2017 (p. 130):
Ratcliffe: Are you aware that Christopher Steele had a relationship—and by “relationship,” I mean a working relationship—with Bruce Ohr?
Comey: Am I aware that he had a working relationship with Bruce Ohr? No.
Ratcliffe: Are you aware of any communications or contact between Christopher Steele and Bruce Ohr?
Comey: I am not aware.
Comey would later reiterate most of those assertions regarding Steele and Ohr during questioning with Republican Rep. Jim Jordan of Ohio (p. 195-197).
Comey Unaware That Perkins Coie Associate Passed Information to FBI
On Comey’s knowledge of the involvement by Democratic National Committee law firm Perkins Coie, and FBI General Counsel James Baker, during an exchange with Rep. Mark Meadows (R-N.C.):
Comey: I, when I was FBI director, don’t remember ever being told anything about Perkins Coie. I think I’ve since read stuff in the media, but not when I was director.
Meadows: So are you saying that James Baker, your general counsel, who received direct information from Perkins Coie, did so and conveyed that to your team without your knowledge?
Comey: I don’t know.
Comey is saying that he didn’t know Steele and was unaware Steele was working for Fusion GPS. He also says he didn’t know that Steele had been terminated by the FBI as a source for leaking to the media—which also implies he didn’t know that Steele had leaked.
Comey also didn’t know that Steele had a long-standing relationship with DOJ official Ohr, let alone the fact that Ohr was transmitting information from Steele to the FBI.
Comey also didn’t know about the involvement of Perkins Coie. Finally, Comey was unaware that the FBI’s top legal counsel, James Baker, was receiving information from Perkins Coie and transmitting that information to FBI investigators under Comey, McCabe, Strzok, etc.
Lies or Truth?
These could all be lies on Comey’s part. If so, they are now part of the congressional record, and Comey could be referred for lying to Congress.
Alternatively, Comey could be simply telling the truth that he was unaware of these actions being carried out by the FBI team working under Deputy Director McCabe.
The Timing of Brennan’s Involvement
Finally, we have another particularly telling exchange regarding the initiation of the FBI’s counterintelligence investigation—known as “Crossfire Hurricane.” Specifically, we are given a distinct timeframe as to when Comey first became aware—according to him—of any information that any Americans might be working with Russia (p. 135-138):
Meadows: Prior to July 31, 2016, when you opened what is now known as, I guess, Crossfire Hurricane, or this investigation, was there no effort on part—on the part of the FBI or no knowledge—let me correct that—no knowledge on the part of the FBI of anybody—George Papadopoulos or any others—that potentially could have been involved in this Russian narrative?
At this juncture, Comey cuts off the objections of FBI counsel and answers Meadows’s question:
Comey: The first information we had, certainly the first information that came to my attention that Americans might be working with the Russians as part of their efforts, came at the end of July—I think the 31st is too late, but the last week of July—when we received information from an allied nation about the conversations their ambassador had in England with George Papadopoulos. That was the beginning of it, which is the first time we turned to trying to figure out whether any Americans were working with the Russians.
The first time Comey was made aware of any information regarding the possible involvement of Americans with Russia was the final week of July 2016, coming from information passed informally from Australia.
Contrast Comey’s statements with previous testimony from CIA Director John Brennan:
“I made sure that anything that was involving U.S. persons, including anything involving the individuals involved in the Trump campaign, was shared with the bureau [FBI].”
Note that Brennan says “the bureau”–not Comey.
The BBC reported that Brennan’s receipt of information may be traced back to April of 2016:
“Last April [2016], the CIA director was shown intelligence that worried him. It was—allegedly—a tape recording of a conversation about money from the Kremlin going into the U.S. presidential campaign.”
Brennan would also state that his “intelligence” served as the basis for the FBI counterintelligence investigation:
“I was aware of intelligence and information about contacts between Russian officials and U.S. persons … and it served as the basis for the FBI investigation.”
Notably, Brennan reportedly selected FBI agent Strzok to work on the Intelligence Community Assessment that was issued on Jan. 6, 2017. Strzok was referred to as “the intermediary between Brennan and [former FBI Director James] Comey, and he was one of the authors of the ICAl,” according to an unidentified source talking to reporter Paul Sperry.
A notable question for Brennan: Whom within “the bureau” did he notify?
Targets of Investigation
Comey also provided some material clarification into the FBI’s July 2016 counterintelligence investigation—specifically who was and who wasn’t being investigated (p. 23–24):
Gowdy: Late in July of 2016, the FBI did, in fact, open a counterintelligence investigation into, is it fair to say the Trump campaign or Donald Trump himself?
Comey: It’s not fair to say either of those things, in my recollection. We opened investigations on four Americans to see if there was any connection between those four Americans and the Russian interference effort. And those four Americans did not include the candidate.
The FBI opened their counterintelligence investigation into four Americans, none of which were Trump.
At this point, it’s worth noting the scope of Comey’s interview.
First, as noted by House Judiciary Chairman Bob Goodlatte (R-Va.) (p. 3), the interview was in relation to “decisions made and not made by the Department of Justice and the Federal Bureau of Investigation regarding the 2016 Presidential election.”
Further clarification was provided by Comey’s FBI lawyers (p. 26):
“My understanding, this is an unclassified setting, and also anything that goes to the special counsel’s ongoing investigation would be off limits for this witness to be able to respond to, if they are individuals that are currently being looked at or investigated as part of the Russian investigation, the ongoing Russian investigation.”
This comment came in response to questioning about the FBI’s investigation into the “four Americans,” suggesting at least one of the four individuals currently remains under investigation.
A final point of clarification was made by FBI lawyers on page 122:
“We were told in advance that this would not deal with anything law enforcement sensitive or classified information.”
Open Investigations
There are two fully redacted appendices contained in the June 2018 inspector general’s “Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election“:
• Appendix One—Classified
• Appendix Tw—Law Enforcement Sensitive.
This special counsel exclusion would be pointed out several times by Comey and intentionally, or otherwise, was sometimes used to highlight what was under investigation (p. 28–30):
Gowdy: Did the FBI, in July of 2016, have any evidence anyone in the Trump campaign conspired to hack the DNC server?
Comey: Did we have evidence in July of ’16 that anyone in the Trump campaign conspired to hack the DNC server? The challenge in answering that is—and please don’t take this nonanswer to imply that there is such information. I just—I don’t think that the FBI and special counsel want me answering questions that may relate to their investigation of Russian interference during 2016. And I worry that that would cross that line, Mr. Gowdy.
Comey clarified his position on the DNC Hack with a particular emphasis on the word “facts” (p. 30):
“To the extent I recall facts developed during our investigation of Russian interference and the potential connection of Americans, I think that’s a question that the FBI doesn’t want me answering.”
On page 30, Gowdy asked Comey a seemingly simple question, “Do you believe your firing is evidence of obstruction of justice?” Comey answered, noting, “I don’t know that I can answer that … because I’m a witness.” An obstruction investigation appears to be ongoing, and Comey appears to be a witness.
Following this exchange, FBI counsel interjected and inadvertently provided further clarification (p. 31–32):
Attorney Cecilia Bessee: He is entitled to his opinion, but to the extent—because he also stated that he is also a witness in the investigation.
Gowdy: Which investigation is he a witness in?
Bessee: To the special counsel. He said he is a potential witness.
Gowdy: Well, you just said witness. Is there an obstruction of justice investigation?
Bessee: I believe there is an investigation that the special counsel is looking into.
Gowdy: Well, we all know that. Is it an obstruction of justice investigation?
Bessee: Mr. Chairman, can you rephrase the question, please?
Gowdy: Yes. We all know that. Is it an obstruction of justice investigation?
Bessee: Can you rephrase the question for the witness?
At this point, Gowdy appears to lose patience, and moves back towards his original question regarding Comey’s firing, asking him, “Do you believe it provides sufficient basis for your termination?” Comey stated he was unable to answer as “it requires me to get into the mind of the decisionmaker, who is the president, and I’m not in a position to do that.”
Lt. Gen. Michael Flynn
Comey was questioned repeatedly on his firing along with the impact and nature of Trump’s involvement with the FBI’s investigation of former national security adviser Lt. Gen. Michael Flynn, and made a number of interesting statements.
As you read these responses, bear in mind they are now part of the congressional record and the potential implications these statements might have on any other statements that Comey may have made during any investigation. In an exchange with Republican Rep. Mike Lee of Utah (p. 81–84):
Lee: Obviously, when the president of the United States speaks, and though you’re in an independent agency, he might believe that work should begin on responding to his request.
Comey: I don’t know what he believed. I never spoke to him about it again.
Lee: In the past 18 months since that testimony, do you feel more certain that you were fired because of the Russian investigation?
Comey: I’m still in the same place, that I’ve heard the president say that, but I’ve also heard him say different things. So I can’t answer the question.
Comey says he didn’t know what Trump believed—he didn’t know or understand the president’s intent. Additionally, Comey doesn’t know if he was fired in relation to his investigation of Russian collusion. In an exchange with Gowdy, Comey said (p. 100–101):
Gowdy: Did his comments prevent you from taking any act as the director of the FBI that you thought were warranted by the other fact pattern?
Comey: No. This had—I did not abide this. And it did not affect the investigation, so far as I’m aware, in any way.
Gowdy: Did you initiate an obstruction of justice investigation based on what the president said?
Comey: I don’t think so. I don’t recall doing that, so I don’t think so.
Gowdy: Would you recall initiating a criminal investigation into the president of the United States?
Comey: Yes, I’m sorry. I didn’t personally, but I took it also to mean, did anyone else in the FBI open a file with an obstruction heading or something? ‘Not to my knowledge’ is the answer.
Per the former director of the FBI, Trump didn’t affect the FBI investigation “in any way.” Comey said later during questioning (p. 102–103).
Gowdy: Were you obstructed?
Comey: Well, I don’t know—there was no impact, so far as I’m aware, on the investigation, from this conversation.
Gowdy: If he had said, “Look, General Flynn doesn’t have the intent to commit a crime,” how would you have viewed that?
Comey: Yeah, I still would not offer an opinion as to what his intention was in doing that. I would find it very concerning, just as I found this very concerning, but I didn’t then, and I don’t now, have an opinion on the ultimate question about whether it was obstruction.
Classified Memo Regarding Loretta Lynch
Shifting topics, we come to another important segment, where again, the special counsel was invoked. Rep. Steve Cohen (D-Tenn.) was asking Comey about a reported, and now classified, document (p. 54), as described by The Washington Post, that was received by the FBI in March 2016:
“The document, which has been described as both a memo and an email, was written by a Democratic operative who expressed confidence that Ms. Lynch would keep the Clinton investigation from going too far, according to several former officials familiar with the document.”
Comey, who had first discussed this document in his June 8, 2017, Senate Intelligence Committee testimony, indicated during this testimony he still takes the document seriously—believing it to be genuine, although not necessarily accurate (P. 54–55):
“I have to tread carefully here, because I think the underlying material is still classified. So there was material—this is what I’ve said publicly, and so I’ll say it again, there was material that was classified that if unclassified, released, would open the attorney general up to the accusation—whether it was true or not—the accusation that she had not been acting fairly and impartially in overseeing the investigation.
“So far as I knew at the time, and still think, the material itself was genuine, which is a separate question, though, from whether it was what it said was accurate.”
At an earlier point in his testimony (p. 36), Comey stated that both Deputy Attorney General Sally Yates and Attorney General Loretta Lynch were briefed on the document in the first half of 2016.
The document in question remains held in one of two classified sections of the IG’s June 2018 report.
As DOJ Inspector General Michael Horowitz noted during testimony following the release of his report, “The information was classified at such a high level by the intelligence community that it limited even the members [of Congress] who can see it, as well as the staffs.”
Horowitz has been working to re-write and therefore re-classify the document, noting, “We very much want the committee to see this information.”
Special Counsel Mueller
Lastly, we come to some commentary about the special counsel. On page 60, in response to questions regarding the special counsel, Comey stated his belief that Mueller was not on a “witch hunt” and noted that while he and Mueller are “not friends, I admire Bob Mueller. He is more than people realize.” Comey continued with this intriguing exchange with Rep. Jerry Nadler (D-N.Y.):
Comey: There are not many things I would bet my life on. I would bet my life that Bob Mueller will do things the right way, the way we would all want, whether we’re Republicans or Democrats, the way Americans should want.
Nadler: And is it fair to say that there are no facts that you know of to support the notion that special counsel Mueller is politically motivated or biased?
Comey: I don’t know of any. I’m smiling at this moment because I can’t imagine any, given the nature of that person and his life.
Nadler: And it’s still accurate that you’re not particularly close to Robert Mueller?
Comey: It is accurate.
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of NTD.com