Experts: Comey Testimony Will Be More Dud Than Bombshell

Liberals wild with anticipation, but DOJ veterans doubt fired FBI director will make obstruction charge

Liberals and media pundits are anticipating fired FBI Director James Comey’s upcoming Senate testimony like football fans look toward the Super Bowl.

It will be the biggest congressional testimony since the Clarence Thomas hearings! No, since Oliver North testified about the Iran-Contra affair! No, wait — since Watergate!

For all the salivating, Comey’s appearance before the Senate Intelligence Committee may end up disappointing, according to national security and law enforcement experts. CNN on Tuesday cited anonymous sources as saying that Comey will dispute President Donald Trump’s account of a February meeting between the two men in which the president reportedly asked if the FBI director could back off the investigation of former National Security Adviser Michael Flynn.

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Trump’s critics have interpreted that as obstruction of justice. But experts noted that federal law would have required Comey to inform the Department of Justice if he was concerned that the president was trying to obstruct justice. He apparently did not do so or even inform senior officials at the FBI. What’s more, Acting Director Andrew McCabe testified before the Senate Intelligence Committee last month that “there has been no effort to impede our investigation today.”

James Kallstrom, a former assistant director of the FBI, told LifeZette that it would be hard for Comey then to drop a bombshell and tell the Senate Intelligence Committee on Thursday that Trump was trying to improperly shut down the probe.

“I don’t see how that could possibly be,” he said.

Could Comey testify that he did not believe initially that Trump’s request amounted to obstruction but that he changed his mind after Trump fired him?

“He could say that, but who in the world would believe it other than the corrupt media?” he said.

Former Assistant FBI Director Chris Swecker told CNN on Tuesday that Comey evidently did not even discuss with senior staff whether Trump’s request justified opening a preliminary investigation — even supervisors who reportedly saw a memo the director wrote about his meeting with Trump.

“Pressure is not obstruction of justice; it’s pressure. It’s not legally sufficient to make out a legal case for obstruction.”

“He apparently didn’t do that, and he showed the memo and shared his conversation with other executive staff around him, and nobody thought it rose to the level of at least even a preliminary inquiry, which is a very low bar,” he said. “So he’s going to have to answer those questions.”

Andrew McCarthy, a former federal prosecutor in Manhattan, told LifeZette that he expects Comey’s testimony Thursday to be consistent with media reports about his notes of the Valentine’s Day meeting with the president. He said Comey likely will tell senators that he felt pressured.

“Pressure is not obstruction of justice; it’s pressure,” he said. “It’s not legally sufficient to make out a legal case for obstruction.”

Comey could argue that pressure combined with the firing combined to create obstruction, McCarthy said. “But then he’d also have to conclude the case was never shut down,” he added.

McCarthy said that as president, Trump is the nation’s chief law enforcement officer and has the legal right to order the Justice Department or the FBI to stop any investigation. He pointed out that Trump could have achieved the same result by simply pardoning Flynn, and no one would argue that he committed a crime.

McCarthy said as a matter of law, a prosecutor would have a hard time establishing that Trump acted corruptly — an element of obstruction of justice — unless he could prove that Trump was trying to cover up his own criminal conduct.

This is not to say that Comey needs to specifically allege obstruction of justice to inflict real political damage on Trump, McCarthy said. He noted that Comey did former Secretary of State Hillary Clinton no favors last summer when he announced he was recommending that she not be charged for mishandling classified information. His public statement detailed a litany of reckless actions by Clinton, who at the time was running for president.

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“By the time he was done with her, she was a bleeding pulp,” he said.

Joseph diGenova, who served as President Ronald Reagan’s U.S. attorney for the District of Columbia, said Comey’s tenure at the FBI was marked by a “self-image of grandiosity.”As such, diGenova said, it certainly is possible that the former director might accuse Trump of obstruction.

“James Comey is capable of anything,” he said. “He has proved that constantly. He has no credibility.”

Trump, himself, had little to say Tuesday.

“I wish him luck,” the president told reporters.