If revenge is a dish best served cold, former FBI director James Comey’s testimony was a true Beltway feast. Comey delivered the most dispassionate and devastating delivery possible in portraying President TrumpDonald TrumpFive reasons for Biden, GOP to be thankful this season Giving thanks for Thanksgiving itself Immigration provision in Democrats' reconciliation bill makes no sense MORE as the new Richard Nixon — just a lot less likeable. Despite the effort of GOP members to undermine Comey’s credibility, he retained his signature Eagle Scout image in expressing his unease with a series of alleged and grossly inappropriate comments from the president.
The testimony unleashed a torrent of Watergate analogies, and even Watergate-era figures like Carl Bernstein and John Dean were called forth to complete the analogy. Yet, if anything, the testimony showed how fanciful these analogies have become.
First and foremost, I am perfectly willing to accept Comey’s account in this hearing. However, even accepting those representations as true, they did not describe a crime or an impeachable offense. Comey confirmed that Trump actually agreed that it would be a good idea for the Russian investigation to go forward and not be terminated artificially.
Comey also confirmed that Trump only express a “hope” that the Flynn investigation would end — a statement that Trump made repeatedly publicly. He also confirmed that Trump was primarily asking him to make public what he had already told Congress — that he was not under personal investigation.
Obviously, Trump does not come over well in this account (an account that he had denied). Comey testified that he immediately began the practice of writing down notes from meetings with Trump after the election because of “the nature of the person. I was honestly concerned that he might lie about the nature of our meeting.” Again, however, having a duplicitous or dishonest nature is not an impeachable offense. Indeed, if that standard were applied in Washington generally, it would be a ghost town.
The saturation of Watergate analogies in the media however seems wildly detached from either the actual testimony or history. If Watergate was a cancer growing on the presidency, this is still little more than a canker sore — not great to look at but hardly life threatening. It could get worse but what Comey described in his testimony was boorish and even brutish but not necessarily an indictable or impeachable offense. Article I is not a book of etiquette for presidents. If Trump said these things to Comey, they are incredibly improper and ill-advised. Yet, the Nixon comparison works in favor of the position of Trump more than it does Comey.
Comey recounted his discomfort over allegedly being told that Trump wanted assurances of his loyalty and repeatedly asked him to scuttle the investigation of former National Security Advisor Michael Flynn. However, Comey confirmed that he did in fact assure Trump that the president was not under investigation not once but three times. That is significant on two levels. First, if it was grossly inappropriate for Trump to ask the question (and it was), it was equally inappropriate for Comey to answer it (three times). Second, whatever Trump asked of Comey was done in the knowledge that he himself was not viewed as a target for investigation.
Comey also confirmed that Trump asked for him to end the investigation of Flynn, not the Russian investigation as a whole. Flynn had just been fired the day before and Trump could argue that he was expressing sympathy for an aide who had been put through a great deal and was still only accused of relatively minor criminal conduct like violating the Foreign Agents Registration Act.
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I tend to view these things through the lens of a criminal defense counsel and there are a myriad of possible interpretations other than obstruction. The same can be said of the loyalty discussion. Trump’s young administration was being ripped apart by leaks from national security and law enforcement sources. Comey was widely viewed with suspicion by many in the administration. The comment could be viewed in that context rather than some grand Watergate-esque conspiracy.
That brings us back to Watergate. On CNN, Jeffrey Toobin pointed to John Dean sitting next to him to reaffirm that this was now a strong case of obstruction. Toobin stated that Dean (who agreed that the evidence supports a charge of obstruction) knew what he was talking about because he went to jail for obstruction during Watergate. However, the Dean comparison only highlights the overhyped analogy. Dean pled guilty to giving hush money to the Watergate burglars to keep them quiet. That is obstruction. Telling an FBI director that a recently resigned aide is a good guy (something Comey agreed with) and he hoped that he could be now left alone is hardly analogous.
A comparison to the first article of impeachment for Nixon is equally illustrative. The much-touted article accused Nixon of not expressing his desire for the termination of one (but not all investigations) or the suggestion that he might not retain a director for a lack of loyalty. It details extensive criminal conduct on the part of Nixon “to delay, impede, and obstruct the investigation of such illegal entry; to cover up, conceal and protect those responsible; and to conceal the existence and scope of other unlawful covert activities.”
What followed that statement was a list of nine specific allegations including false and misleading statement to investigators, withholding evidence, procuring false testimony of others, interfering with federal and congressional proceedings, the payment of hush money to witnesses and targets, misuse of the CIA to obstruct the investigation, passing along investigative information to criminal suspects to assist their efforts to evade prosecution, making false information to the public to conceal criminal conduct, and rewarding possible witnesses for their silence of false testimony. Virtually all of those listed items are crimes in their own right.
Of course, one of the most striking differences is that James Comey is no John Dean. Dean went to Nixon to confront him on the cancer growing on the presidency. Comey said nothing to Trump about his misgivings in meeting alone or his comments. He wrote a memo to file. While he did (to his credit) raise the issue with his staff, Comey admits that he did not raise the impropriety of Trump’s questions or conduct with the president.
Comey’s testimony is more illustrative of his view of the nature of Donald Trump than the nature of any alleged crime. A criminal defense counsel would have a field day on these facts if a charge was ever brought. Every factual assertion can be either menacing or mundane, depending on your assumptions about Trump and his motivations. In comparison to the first article of impeachment of Nixon, it is the difference between high crimes and high anxiety.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He served as the lead defense counsel on behalf of Judge Thomas Porteous in the last impeachment trial in the United States Senate.
The views expressed by contributors are their own and are not the views of The Hill.