The Justice Department’s recent appointment of retired FBI Director Robert Mueller as special counsel carried a small but meaningful downside risk for journalists, members of Congress, and the majority of the American people who seek a full accounting of Russia’s efforts to subvert the 2016 election and the Trump campaign’s cooperation with them.
Prior to Mueller’s appointment, his successor at the FBI, James Comey, had agreed in principle to testify publicly before Congress about the circumstances surrounding Trump’s decision to fire him in early May. Comey reportedly kept copious notes detailing his personal interactions with Trump, including the president’s efforts to obstruct the FBI’s investigation of disgraced national security advisor Michael Flynn and the broader Russia inquiry. By turning Comey into a private citizen, Trump freed Comey to testify about those interactions, but he also made him a witness.
The concern was that if Mueller decided to investigate whether Trump or anyone in the White House had obstructed justice, he might ask Comey not to testify publicly. That would have deprived the public of whatever closure Comey might be able to provide, propping open a void that is currently being filled with speculation and conspiracy theories.
Wednesday’s news that Comey sought and has received Mueller’s blessing to testify as early as next week before the Senate Intelligence Committee comes as an immense relief to those who feared that a protracted special counsel investigation would put public accounting of Russian interference on hold for months or years. But it also raised a perfectly logical question: If we could infer danger for Trump from Comey’s silence, can we infer that Trump is at least partially off the hook because Mueller gave Comey the OK to testify?
The answer, thankfully, is no. And the reason turns on both Comey’s own liberties and the peculiar nature of his interactions with the president. “Mueller blocking him would have been a clear indication he’s looking at obstruction,” former Justice Department spokesman Matthew Miller told me, “but the reverse is not necessarily true.”
We know from copious reporting that Comey has a story to tell and he wants to tell it, and there is a process of public accountability in Congress running parallel to the legal investigation Mueller is conducting. Mueller can work with congressional committees to reduce the chances that these parallel inquiries collide in ways that undermine the rule of law. But he can’t stop shared witnesses from testifying in public.
The question of how perilous Comey’s testimony is for Trump will turn on how much Comey says, what its content is, and how much of it is limited to what Trump and Comey discussed with each other. The Wall Street Journal, citing “a person familiar with the matter,” reported that Comey will testify that—as one of the aforementioned memos reportedly describes—Trump asked him to stop investigating Flynn.
It is possible, though unlikely in light of this and other reports, that Comey’s testimony will be legally exculpatory. If Comey believes Trump’s behavior, though wildly inappropriate, stemmed from arrogance and an amateurish understanding of the justice system rather than from any truly corrupt purpose, it would reduce public speculation that Trump committed obstruction.
But Trump can’t really take solace in anything short of that. If Comey is tight-lipped, Trump will have to wonder if it means Mueller has trained his sights on those issues. If Comey serves up a blistering indictment of Trump, the political damage will be obvious, without necessarily easing Trump’s legal jeopardy. (His public testimony in 2016—delivered via FBI lectern, congressional hearing, and unsolicited letters to Congress—very likely doomed Hillary Clinton’s campaign, notwithstanding the upshot of it all, which was that he didn’t think she should be prosecuted. Clinton’s wrongdoing—using a private email server to transmit State Department documents, some of which were later deemed classified—pales in comparison to the kinds of things Trump is reported to have done.)
Though witnesses are free to speak publicly, they can undermine investigations by furnishing clues about what and who is being investigated. That Comey sought Mueller’s sign-off is testament to the fact that investigators don’t love it when witnesses start talking to reporters. But to the extent that Comey’s testimony will focus on conversations he had with Trump, the circumstances of those conversations have already been reported. More to the point, Trump himself probably knows what Comey will say, whether he’s telling Congress in public or a grand jury in private.
Under the circumstances, Trump should be praying that at least some of the reports he’s disparaged as “fake news” turn out to be fake in reality, and not just in his brittle mind.