Comey Testimony Shows Trump Committed No Crime. Trump is Vindicated.

June 19, 2017

Former FBI Director James Comey’s testimony before Congress was a national event, drawing wall-to-wall media coverage and more that it’s share of feverish political speculation. A few days of perspective has a clarifying effect, so now it’s time to ask — what did the Comey hearings actually prove?

The Comey testimony covered a lot of ground, but the former FBI director’s statement boils down to three questions.

  1. Is President Trump under investigation?
  2. Was there collusion between Trump’s campaign and Russia at any point throughout the election?
  3. Did Trump commit obstruction of justice by firing James Comey?

In the post-Comey testimony aftermath, there was a flare-up in the media over whether or not Trump was under investigation. Here’s what we know, according to former FBI Director James ComeyTrump was never under any investigation for obstruction of justice or collusion.

No reliable evidence

The next question is whether or not Special Counsel Robert Mueller is investigating Trump for the same charges. Alleged leaks to the Washington Post claimed Mueller was investigating Trump for obstruction of justice, but not collusion.

However, ABC News disputes those reports and says Mueller has only begun the bare outlines of his overall investigation, but nothing into Trump. Further, Trump’s legal team is denying they’ve received any notice of inquiry.

The answer is, no one knows what Mueller’s team is officially investigating right now. And outside the one Washington Post report that cites “five anonymous sources,” no one else has evidence the President is under investigation for anything.

Playing politics

The real issue is why leak it now? The answer is twofold. First, it gives Mueller and his team political advantage over Trump, and second, it allows them the freedom to talk to targets without those people “lawyering up.”

The Washington Post leak that Mueller had opened an official investigation into Trump provided Mueller’s team an insurance policy:

If Trump had fired him before the news came out, skeptics would claim that Trump was never really under investigation. That’s BS, they’d say, cooked up by Mueller and his defenders after the fact to make Trump’s decision look extra shady, a desperate act of obstruction to save his own skin. By leaking this now, Team Mueller ensures that they can’t make that argument later. Firing Mueller after this would look more suspicious than firing Comey did: Comey, after all, had told Trump several times that he wasn’t a target of the Russia probe, which is why Trump is claiming “vindication” from his testimony. Mueller, however, is now broadcasting that Trump is the target of an obstruction probe. If he pulls the plug on the special counsel later, it’ll be a straight analogy to Nixon — the president attempting to short-circuit an investigation that’s placed him in criminal jeopardy … This leak is their job security.

Ironically, however, the “insurance policy” ploy also strengthens the case to fire Mueller from the case. Mueller was brought in to be the straight-laced investigator. Leaks like this undermine his credibility and suggest he’s playing politics.

Secondly, by leaking an investigation instead of performing a public one, Mueller and his team can claim they aren’t investigating anyone particularly and are only “informally talking” to people. The quasi-investigation status gives them freer access to people before they “lawyer up.”

As an aside, as a lawyer, I can tell you this is a common police tactic and utter nonsense. It doesn’t matter if police are speaking formally or informally, they can use it against you in a court of law.

Unsupported case

There remains no evidence of collusion involving Trump; which is why Democrats have moved the goalposts to obstruction of justice. But impeaching Trump over obstruction of justice would require far more evidence than they have now.

First, Democrats targeted the firing of James Comey as proof of obstruction. The problem is that Trump has the absolute constitutional authority to fire Comey for any or no reason at all. There are no constitutional restrictions.

Further, Deputy Assistant General Rod Rosenstein issued a Department of Justice memorandum that laid out the legal reasons for firing Comey. The memo gives merit to Trump’s decision, even though he didn’t need it.

Since the firing falls within the Executive Branch’s powers, Democrats are arguing impeachment because Trump is exercising his constitutionally granted powers as the President. That makes no constitutional sense.

Did Trump commit an illegal act?

One of the ways to prove obstruction of justice involves an “illegal act.” The defendant must break the law to hamper an investigation or court proceeding (e.g. assault a witness before a trial). You can’t allege that against Trump because his powers in this arena mean his actions were legal by definition.

Instead of an illegal act, Democrats have also alleged Trump attempted to “lean on Comey” by insinuating Comey drop the investigation. The evidence here is also weak.

They rely on Trump using the phrase, “I hope” in connection to the investigation ending. In other meetings Comey discussed, Trump talked about liking people like Michael Flynn and hoped for fair treatment.

If Trump intended to obstruct justice, lean on Comey and end the investigation, he chose astonishingly weak words. Trump’s legal team has also hinted it may take issue with Comey saying Trump requested a “pledge of loyalty.”

On the Sunday morning talk shows, lawyer Jay Sekulow quoted the Rosenstein memo:

I want to read this, “As a result the FBI is unlikely to regain public and congressional trust until it has a director who understands the gravity of the mistakes and pledges to never repeat them. Having refused to admit his errors the director cannot be expected to implement the necessary corrective changes.”

This passage suggests that Trump’s legal team will claim that Trump wasn’t requesting a loyalty pledge, but rather a promise not to repeat the same mistakes Comey made in 2016. If so, that would cast Comey’s meetings in a radically different light.

Media Coverage Off-Base

Collusion and obstruction of justice are serious criminal charges with grave penalties. Charging into impeachment with weak proof is irresponsible. Leaking the investigation strategy for political leverage is similarly irresponsible.

It’s hard to argue that the Comey hearings didn’t help Trump. Whether the mainstream media will acknowlege that is another question altogether.

With no evidence of collusion, no evidence of obstruction of justice, and no illegal act, it makes one wonder; what is feeding the media frenzy?

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.