The political world will hang on every word former FBI Director James Comey utters during his testimony before the Senate Intelligence Committee on Thursday, but he likely will face some serious questions of his own.
The hearing represents Comey’s first — and perhaps last — chance to tell his side of the story in public after Trump fired him and set off a firestorm in Washington. Many Democrats are not waiting for the testimony to accuse President Donald Trump of obstruction of justice.
Comey offered a preview of his testimony Wednesday by releasing his opening statement, in which he confirmed that he had told Trump that he was not a target of the FBI’s counterintelligence investigation but also insinuated that the president acted inappropriately during his interactions.
Republicans on the committee will be sure cross-examine Comey aggressively on a number of matters. Here are seven questions that he should be asked:
1.) Why did Comey not inform the Justice Department that Trump asked him to back off an investigation of former National Security Adviser Michael Flynn?
According to Comey’s opening statement, he did not inform Attorney General Jeff Sessions because he assumed Sessions would recuse himself of the Russia investigation and that a deputy attorney general has not yet been confirmed. Republicans on the committee likely are not going to accept that answer and will press for a fuller explanation of why he did not follow protocol if there was a reason for concern.
2.) Why did Comey announce a counterintelligence investigation into Russian meddling — including possible coordination with the Trump campaign — but not make clear that Trump was not a target?
Comey made his bombshell announcement during congressional testimony in March but has refused to comment about whether the president himself was a target. That has frustrated Trump, who believes the investigation has created a cloud that has interfered with his ability to do his job. Comey’s opening statement makes reference to the fact that telling the public that there was no open case against Trump would “create a duty to correct” if that were to change.
But senators likely will want to know why it was proper to confirm the investigation at all, since that predictably would shroud the entire administration in a cloak of suspicion. Senators may also demand to know who, specifically, at the Justice Department authorized Comey to confirm the investigation.
3.) Does Comey have copies of the memos he is said to have kept documenting his interactions with Trump?
The FBI reportedly has refused to turn over the Comey memos to the Senate Intelligence Committee. It is unclear whether Comey has copies.
4.) Did Comey tell then-Deputy FBI Director Andrew McCabe about Trump’s request regarding Flynn?
On May 11, McCabe — who by then was the acting director — testified before the Senate Intelligence Committee. Sen. Marco Rubio (R-Fla.) asked if the firing of Comey “in any way impeded, interrupted, stopped or negatively impacted any of the work, any investigation, or any ongoing projects at the Federal Bureau of Investigations?”
To that very broad question, McCabe said there had been “no effort to impede our investigation today. Quite simply put sir, you cannot stop the men and women of the FBI from doing the right thing, protecting the American people, and upholding the Constitution.”
Comey’s opening statement indicates that he shared his memos documenting interactions with Trump with the senior leadership team of the FBI. Presumably, that would include McCabe. If that is true, McCabe’s congressional testimony suggest that he and other senior officials did not consider the president’s actions obstruction of justice.
5.) Once and for all, did the FBI rely on a dossier prepared by a former British intelligence official suggesting that Russia had blackmail material in Trump?
Comey refused to answer questions about this at a public hearing in May. Sen Charles Grassley (R-Iowa) grilled him about whether the FBI spoke with the former British agent, Christopher Steele, before opening its investigation. Grassley also wanted to know if the FBI paid Steele for the document, was aware that Steele paid some of his sources and if the FBI ever told a judge that it had interactions with Steele.
Comey declined to answer. His opening statement seems to make reference to the dossier when he describes briefing Trump in January about “some personally sensitive aspects of the information assembled during the assessment” by U.S. intelligence agencies. Comey’s statement calls it “salacious and unverified.” Senators probably will probe Comey about whether it played any role at all in the FBI investigation.
6.) Why did the FBI violate rules meant to protect the privacy of Americans swept up in surveillance of foreign targets of counterintelligence operations?
First reported by Circa, recently unclassified documents from the Foreign Intelligence Surveillance Court point to hundreds of violations of the FBI’s rules to protect Americans’ privacy during Comey’s tenure.
Flagged conduct includes improperly sharing intelligence with unauthorized people and accessing communications in violation of attorney-client privilege without proper oversight.
“The Court is nonetheless concerned about the FBI’s apparent disregard of minimization rules and whether the FBI is engaging in similar disclosures of raw Section 702 information that have not been reported,” a judge wrote in April.
7.) Is it true that Comey relied on a phony document created by Russia to usurp the authority of the attorney general?
CNN reported last month that Comey knew that a memo purporting to show collusion between then-Attorney General Loretta Lynch and Democrat Hillary Clinton’s presidential campaign was fake. But Comey reportedly went ahead with his decision to speak publicly about the Clinton email investigation without the consent of the Justice Department or Lynch knowing even what he would say.
The memo in question supposedly showed then-Democratic National Committee Chairwoman Debbie Wasserman Schultz describing how Lynch indicated she would protect Clinton from legal liability. According to CNN, Comey knew the document was fake but called the news conference last summer because of fear that the memo would undermine the Justice Department’s credibility if it ever leaked.
In the news conference, Comey ripped Clinton’s “extremely careless” handling of classified information. Deputy Attorney General Rod Rosenstein cited Comey’s disparaging comments about Clinton — a violation of Justice Department policy — in his memo to Trump just before the president fired the FBI chief.
On its face, it seems odd that the FBI director would act on a document he knew was fake — particularly if a foreign adversary planted it. That would seem to cede control over U.S. policy to a foreign government. Comey never has explained himself publicly on the issue. He ought to do so at the hearing.