6 questions about James Comey’s upcoming Senate hearing, answered
A high-profile hearing could bring long-awaited answers about President Donald Trump's interactions with ousted FBI director James Comey.
Or it could bring a lot of "I can’t answer that question in an open setting."
Since Trump fired Comey May 9 — yes, it’s only been a month — lawmakers, the media, and much of the public, have been eager to hear Comey tell his side of the story about the FBI’s investigation into Russia and the 2016 election.
On June 8, 2017, he’s expected to do just that.
Comey will appear before the Senate Intelligence Committee at 10 a.m. E.T., followed by another session closed to the public. The committee released an advance copy of Comey's prepared opening remarks, where he corroborated media reports about some of his interactions with Trump.
Here’s what you need to know before the hearing starts.
Since Comey's dismissal, major news outlets have published numerous damning reports detailing alleged attempts by Trump to tamper with the FBI’s Russia investigation and how Comey reacted.
But the reports are based on anonymous sources. Lawmakers want to hear what happened from the horse’s mouth.
Most notably, the New York Times reported that Trump asked Comey to let go of the FBI investigation into ousted national security adviser Michael Flynn and payments Flynn received from foreign entities, and that Comey wrote a contemporaneous memo describing the interaction. The Washington Post reported that Trump asked Director of National Intelligence Daniel Coats and CIA Director Mike Pompeo to intervene with Comey.
This could be a textbook case of "it’s not the crime, it’s the cover-up."
The FBI’s investigation is looking into whether the Trump campaign and its associates coordinated with Russia during the election, and that extends to some Trump associates’ financial ties — such as payments Flynn received from Russia that may not have been properly reported.
This hearing will focus on whether Trump tried to impede the investigation, possibly obstructing justice, rather than tampering with the election itself.
Generally speaking, federal law provides several avenues for pursuing obstruction of justice charges. Reaching a guilty verdict would require proving beyond a reasonable doubt that certain elements were present in a person’s behavior and mental state.
A prosecutor would have to show someone used or threatened force to obstruct, influence or impede a proceeding while having a "corrupt" state of mind — though the specific elements would vary depending on which criminal provision applied.
Aside from the technical features of the law, prosecution would likely face additional hurdles. No president has been criminally prosecuted, and the Constitution may even immunize a sitting president from criminal liability, though that theory has not been tested in court.
Charging Trump with obstruction of justice seems unlikely. Any indictment would most likely come after Trump had either left office or been forced out through impeachment, a political process that would not require proving Trump committed any crimes. However, because Trump’s party controls Congress, impeachment is a remote possibility.
The Senate Intelligence committee released Comey's prepared opening remarks a day early. In the remarks, he confirms much of the media reporting about his interactions with Trump regarding the Russia investigation.
But how much more detail Comey will give beyond what he included in his 3,000 word prepared statement remains to be seen.
In past appearances before Congress, while still serving as FBI director, Comey abided by FBI policy against publicly discussing investigations. He might have more leeway now that he’s a private citizen, but there’s a good chance that he will decline to answer some of the most interesting questions, at least until the closed session.
Comey hasn’t made a public appearance since he was fired and news outlets began publishing stories suggesting Trump tried to impede the Russia investigation. Other intelligence leaders — including Acting FBI Director Andrew McCabe, NSA Director Mike Rogers and Director of National Intelligence Dan Coats — have faced similar questions during recent congressional hearings and have declined to discuss their conversations with Trump in a public setting.
"I wish him good luck," Trump told reporters June 6.
Trump has a scheduled event, which we will also monitor, during the Comey hearing. But he has tweeted about past Russia investigation congressional hearings as they were happening and may do so this time.
Trump staff and allies have tried to undermine Comey’s credibility by pointing out that FBI staff had to clarify an incorrect statement regarding the Clinton investigation that Comey made before Congress May 3. Adviser Kellyanne Conway made this point on NBC June 5, as did pro-Trump group Great American Alliance in a television ad.
There was some concern that the White House would invoke executive privilege to block Comey from speaking, but the administration decided against it.
Some lawmakers might bring up a few topics that stray away from the main topic or attempt to undermine Comey’s testimony. That includes Republicans inclined to side with Trump on Russia and Democrats who opposed Comey’s handling of the investigation into the Hillary Clinton email controversy.
There’s the fact that Comey got the facts wrong on one aspect of the Clinton email issue the last time he appeared before Congress, and Washington Post reports about false information that Russia allegedly funnelled to the FBI regarding the Clinton investigation.
Then there’s the issue of leaks, government workers providing journalists with classified or sensitive information about FBI investigations or communications among officials, including the FBI’s recent arrest of a young woman who leaked a highly classified NSA document about Russian election interference to the Intercept.