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The questions James Comey didn’t answer in the Senate hearing

There were several things that former FBI Director James Comey said he couldn't publicly answer in a hearing before the Senate Intelligence Committee. Judy Woodruff gets analysis from John Carlin, Carrie Cordero, Greg Craig and George Terwilliger, four people with extensive experience in government and the law.

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    And now let's get some analysis from four people with extensive experience in government and the law.

    George Terwilliger served as deputy attorney general under President George H.W. Bush. Greg Craig, former White House counsel to President Obama and President Clinton, where he led the team defending Mr. Clinton against impeachment. John Carlin served as assistant attorney general for national security at the Department of Justice from 2014 until October of last year. And Carrie Cordero served in the Justice Department under Presidents George W. Bush and Obama, where she worked on matters of national security.

    And we thank all four of you for being here.

    And we're going to take a closer look now at some of the revelations today from these hearings, beginning — we have already a little bit of what was said.

    But I want to look now at what Director Comey said he couldn't talk about publicly. And this starts with a question from the committee chairman, Senator Burr.


    In the public domain is this question of the Steele dossier, a document that has been around out in for over a year. I'm not sure when the FBI first took possession of it, but the media had it before you had it and we had it.

    At the time of your departure from the FBI, was the FBI able to confirm any criminal allegations contained in the steel document?


    Mr. Chairman, I don't think that's a question I can answer in an open setting because it goes into the details of the investigation.


    And when you read the dossier, what was your reaction, given that it was 100 percent directed at the president-elect?


    Not a question I can answer in open setting, Mr. Chairman.

    SEN. RON WYDEN, D-Ore.: Let me turn to the attorney general. In your statement, you said that you and the FBI leadership team decided not to discuss the president's actions with Attorney General Sessions, even though he had not recused himself.

    What was it about the attorney general's interactions with the Russians or his behavior with regard to the investigation that would have led the entire leadership of the FBI to make this decision?


    Well, our judgment, as I recall, is that he was very close to and inevitably going to recuse himself for a variety of reasons. We also were aware of facts that I can't discuss in an opening setting that would make his continued engagement in a Russia-related investigation problematic.


    How would you characterize Attorney General Sessions's adherence to his recusal, in particular, with regard to his involvement in your firing, which the president has acknowledged was because of the Russian investigation?


    That's a question I can't answer. I think it is a reasonable question. If, as the president said, I was fired because of the Russia investigation, why was the attorney general involved in that chain? I don't know. And so I don't have an answer for the question.

  • SEN. TOM COTTON, R-Ark.:

    Let's turn our attention to the underlying activity at issue here. Russia's hacking of those e-mails and the allegation of collusion. Do you think Donald Trump colluded with Russia?


    That's a question I don't think I should answer in an opening setting. As I said, when I left, we did not have an investigation focused on President Trump. But that's a question that will be answered by the investigation, I think.


    George Terwilliger, you have been hearing all of this. What do you take away from the fact that the former FBI director says he can't get into those areas?

  • GEORGE TERWILLIGER, Former U.S. Deputy Attorney General:

    I'm saddened by this entire spectacle that we saw today, and really going back to last July, beginning with the original speech by the then-director on the Hillary Clinton e-mail case, and up to today.




    There is a thrusting that results from this of the Justice Department and the FBI into the middle of political affairs that seems to follow Mr. Comey around.

    He's become kind of a one-man wrecking ball as to accusations and recriminations against several other major government figures, candidates, presidents, attorneys general. And I hope that all of this will get dialed back.

    I would much rather see the Intelligence Committee and Bob Mueller continue their investigations and come to some conclusions, and then let's talk publicly.


    Greg Craig, a one-man wrecking ball?

  • GREGORY CRAIG, Former White House Counsel:

    Well, I think, if he'd had the choice, Director Comey would have preferred not to have been fired.

    So I think it's hard to blame his being thrust into the forefront of this discussion and this debate because he was fired. And that was the decision of President Trump.

    And that's the core issue of obstruction, George, it seems to me, whether the firing was the product of a decision to try to end the investigation by the president or not.

    And I think the meaning, Judy, of what happened today was, you got testimony about exchanges between the director of the FBI and the president of the United States that give you flavor and texture and information about what went into the decision to fire Mr. Comey, which is the obstruction in this case.


    Carrie Cordero, and what about just specifically on those three answers, sets of answers that Mr. Comey gave? I mean, should we read something nefarious into that?

  • CARRIE CORDERO, Former Justice Department Official:

    Well, so, I do have a slightly different take, which is that the number of times that former Director Comey was referring to items that could not be discussed in open session alludes to the fact that there is an ongoing investigation, and there's a whole bunch of classified stuff and classified investigation that's taking place that he could only feel comfortable and would only be appropriate to discuss in a closed session.

    And what wasn't part of the clips, but what he also said in his testimony today is that, unequivocally, there was Russian interference in the election. And with all this soap opera related back and forth that we focus on so much, I feel like that aspect sometimes gets lost, that there really was Russian interference, and former Director Comey was absolutely crystal clear about that fact today.


    And he — in effect, he was confirming what the president himself, John Carlin, has been saying in all this.

    But, again, getting back to this, and particularly on the attorney general, when he was asked about the attorney general's role in this, he said, there are aspects of that I can't talk about here.

    How are we to read that?

  • JOHN CARLIN, Former Justice Department Official:

    Well, there's three, I think, possibilities, three areas that he would be very careful not to testify about in public.

    One would be if it's classified information, if it's collected through sensitive sources and methods. That's what they do in a closed hearing. Number two, information that was collected through the grand jury process. But number three in this instance would be if he thought it would interfere with the ability of the special counsel, Bob Mueller, my former boss, to conduct his investigation.

    I think it's unclear here which of the three buckets that it might fall into, but any time he says that, that's what I'm thinking in my head. It's fallen into one of those three areas.


    All right, let's look now at another exchange that was notable.

    Here's Democratic Senator Dianne Feinstein of California. She's asking Comey about President Trump's request to drop the criminal investigation into his former National Security Adviser Michael Flynn.


    Now, here's the question. You're big. You're strong. I know the Oval Office, and I know what happens to people when they walk in. There is a certain amount of intimidation. But why didn't you stop and say, Mr. President, this is wrong, I cannot discuss this with you?


    It's a great question. Maybe, if I were stronger, I would have.

    I was so stunned by the conversation that I just took it in. And the only thing I could think to say, because I was playing in my mind — because I could remember every word he said — I was playing in my mind, what should my response be? That's why I very carefully chose the words.

    Look, I've seen the tweet about tapes. Lordy, I hope there are tapes.

    I remember saying, "I agree he is a good guy," as a way of saying, I'm not agreeing with what you just asked me to do."

    Again, maybe other people would be stronger in that circumstance. But that was — that's how I conducted myself. I hope I'll never have another opportunity. Maybe, if I did it again, I'd do it better.


    How do you — Carrie Cordero, listening to that, how did he handle that?


    The difficulty is that there really was, at least from the way that the former director testified today, he felt like there was nobody else that he could go to in the administration to talk to about this.

    He had Attorney General Sessions, who is somehow implicated in the investigation in some way, to the extent that he would have to be recused. This is the president who, as the FBI director in his executive capacity, he does have to provide him with information if the president asks for it.

    So, he was in a position, I think, where there was nobody else that he could really discuss this with, given the lack of confirmed leadership positions in the Department of Justice at the time, and given the fact that he is directly reporting to the attorney general and ultimately to the president.


    George Terwilliger, how do you read this? You have the senator saying, why didn't he just speak up in the moment?



    And, frankly, I can't buy the argument that there was no one he could go to. Dana Boente, a career assistant United States attorney and United States attorney, an Obama appointee…


    Who was then acting …


    … was the acting deputy attorney general at the time, and was perfectly available for Mr. Comey to talk to.

    Comey had served with Dana when Dana was a United States attorney for several years. So, I don't buy that explanation. And it's part of a pattern of Mr. Comey resorting to self-help because he feels like he's the lone ranger who is out there carrying the sword of righteousness forward.

    Jim has served this country honorably for a very long time, but I really think, Judy, he made some mistakes last July when he usurped the function of the Department of Justice in deciding about the Hillary Clinton e-mail case.

    He made a major mistake at that time in, in essence, indicting Hillary Clinton in the court of public opinion, and everything since then has flowed the wrong way.


    How do you see that continuum, John Carlin?


    Well, look, if true, it's hard to even describe how unusual it would be for a president of the United States, whether it's President Bush or President Obama, to have a meeting, order everyone out of the room, leave the FBI director in the room, have a private conversation with him, and essentially say, can you end an investigation into someone who used to work for me?

    And I can't — we didn't — there was no situation that came even close. If someone from the White House called over to the FBI and said that they wanted the director to come to the White House with full staff, that would cause huge consternation, calls to the department, coordination, lawyers.

    So, I can see in that context being shell-shocked, he's described. If it's true, I think that that would be a serious moment about the separation between our Department of Justice, the ability to conduct investigations free from political interference. That's a principle that's been strongly shared by both parties.

    So it's important to figure out whether that happened.


    Greg Craig, how else could he have handled it, or was there another way?


    Well, I have to say, it's hard for me to blame Jim Comey, when the president puts him in that situation. That's really — I agree with you, John, that's a very unusual situation.

    The director comes over prepared to talk about topics A, B, C, D, and E with a group of other people, and then suddenly it turns into a topic that's really toxic and dangerous, and he's there by himself with the president.

    So, first of all, I'm sympathetic, and I'm willing to be somewhat more forgiving of Jim Comey because he's in that situation, which is unprecedented and unexpected.


    And we can't — I'm trying to think of another moment that we know of where a president called in an FBI director and had this kind of a conversation.


    Judy, I think one of the things we have to keep in mind is the concept of the independence of FBI from the authority of the attorney general and indeed from the president is not quite the premise that some believe and that perhaps Jim Comey operated on.

    If you think back to the days of J. Edgar Hoover, J. Edgar Hoover had a lot of independence from the Justice Department and from presidents, and it resulted in a very unhealthy situation.


    And, in fact, Comey raised the name of J. Edgar Hoover today.


    I heard that.


    So, perhaps the biggest question, one of the biggest questions swirling around, has the president or have other White House officials in any way obstructed justice? We have had that question raised here.

    Let's listen to how a couple of senators pressed Comey on that point today.


    Do you believe there were any tapes or recordings of your conversation with the president?


    It never occurred to me until the president's tweet. I'm not being facetious. I hope there are. And I will consent to the release of…


    So, both of you are — both of you are in the same findings here. You both hope there's tapes and recordings?


    Well all I can do is hope. The president surely knows if he taped me. And if he did, my feelings aren't hurt. Release the entire — release all the tapes. I'm good with it.


    Do you believe this will rise to obstruction of justice?


    I don't know. That's Bob Mueller's job to sort that out.

    SEN. MARTIN HEINRICH, D-N.M.: A lot of this comes down to, who should we believe? Do you want to say anything as to why we should believe you?


    My mother raised me not to say things like this about myself, so I'm not going to. I think people should look at the whole body of my testimony, because, as I used to say to juries, when I talked about a witness, you can't cherry-pick it. You can't say, I like these things he said, but, on this, he's a dirty, rotten liar.

    You have got to take it all together. And I've tried to be open and fair and transparent and accurate.

    A really significant fact to me is, so why did he kick everybody out of the Oval Office? Why would you kick the attorney general, the president, the chief of staff out to talk to me if it was about something else? And so that, to me, as an investigator, is a very significant fact.


    So, Greg Craig, are we any closer to knowing whether the president in any way committed obstruction of justice in here?


    I think he's on very, very thin ice.

    First of all, I think you have got a credible, plausible, believable witness in Jim Comey. And if you were betting between a swearing match between the president of the United States and Jim Comey, my money would be on Comey. Most jurors, most prosecutors would give him a good deal of faith in the truth of his testimony.

    Secondly, the real issue here when it comes to a criminal prosecution is whether he falls within a Title 18 United States Code provision that almost word for word describes what some people would think Donald Trump has engaged in.

    And most prosecutors that had that kind of evidence against an individual wouldn't hesitate to bring a prosecution. It is, I believe, right now an indictable offense. But there's no way in which you can bring that kind of case against a sitting president, so then you move to the question of whether this conduct rises to the level of an impeachable offense, because that's the exclusive way that the Constitution lays out for limiting or removing the power of a president, a sitting president.


    Is that how you're thinking about this, Carrie Cordero?


    Well, I think, certainly, there is a difference between the criminal aspect, and what this is actually going to move to is whether or not obstruction can be found as a political matter.

    But I think the other piece is that I think observers are looking for what's the one act that is going to make the obstruction case? And I think, when they look at this, what we're going to find is, there's a timeline and there's a series of events.

    It was some of the conversations. It was the dinner meeting. It was the will you be loyal to me at the same time of discussing job security. It was the tweets, some of the tweets that exposed the investigation. It was the firing. And then it was the tweet sort of threatening that there are tapes.

    And so I think when people look back at this, they're going to look and they're going to find a timeline that will eventually move towards the political consideration of obstruction.



    Can I just add that the president of the United States has also said that the reason he fired Comey was because of the Russian …


    And that's perfectly legal, because the president can't obstruct justice by telling the director of the FBI to do or not do a particular investigation. It's a unitary executive. The president is in charge of the executive.


    What does unitary executive mean?


    It means that the entire branch of government is embodied in one person, and that's the president. So the president can give direction as to what should happen with cases.

    And Carrie raises just the right point, that the resolution of the issue of — if there is an issue about the president's action is political, not legal. The talk of obstruction of justice as a legal matter is meaningless. It might make for an interesting academic debate.

    The president cannot obstruct justice by telling the director of the FBI, stop that investigation. There may be grand political consequences to doing so, but there's no legal consequences.


    And Greg — we just heard Greg say you then move on to the question of impeachment.

    But, John Carlin, what about — is obstruction of justice as a question still on the table?


    Look, the — it's an important question.

    The referral or saying it's in the hands of the special counsel in that sense isn't quite right. So, what the special counsel could do and approach it like a prosecutor and an investigator and say, is there a corrupt intent when the act was taken? Here, the act would be the firing.

    I disagree with George on whether or not that would constitute the criminal offense. The guidance — the Justice Department guidance says not that you can't commit a crime as president, but that you can't be indicted while you're the sitting president. So they could build out the facts. They could make out the elements of the case.

    But then I do agree what there has been less focus on is, what happens with the special counsel's report? Under the old statute, you knew that would go to Congress with a referral if they thought a crime would be committed.

    Under the current terms, it actually is not clear. At the end of the day, the acting attorney general, which is Rod Rosenstein, needs to make a report to Congress. What's in that report isn't clear.


    George, you shook your head.





    It's not a matter of Justice Department guidance or procedure. It's the Constitution.

    The Constitution places the president in charge of the executive branch. I'm not trying to defend the decision, but the fact of the matter is, the president has complete and utter legal authority to fire the director of the FBI, including for pursuing a particular investigation.


    All right, we're going to leave it here, as we look at this final piece of tape from today's hearing.

    Russia and the president were not the only subject that made news today. Senators again questioned Director — former Director Comey about his handling of the investigation into Hillary Clinton's e-mail and what pushed him to take the unusual step to discuss it publicly last summer, which you all have brought up.

    Here, again, committee Chair Senator Richard Burr.


    Let me go back, if I can, very briefly to the decision to publicly go out with your results on the e-mail. Was your decision influenced by the attorney general's tarmac meeting with the former president, Bill Clinton?



    In, ultimately, a conclusive way, that was the thing that capped it for me that I had to do something separately to protect the credibility of the investigation, which meant both the FBI and the Justice Department.


    Were there other things that contributed to that, that you can describe in open session?


    There were other things that contributed to that.

    One significant item I can't, but I know the committee's been briefed on — there's been some public accounts of it, which are nonsense — but I understand the committee has been briefed on the classified facts.

    Probably, the only other consideration that I guess I can talk about in open setting is that at one point the attorney general had directed me not to call it an investigation, but instead to call it a matter, which confused me and concerned me, but that was one of the bricks in the load that led me to conclude I have to step away from the department if we're to close this case credibly.


    So, Carrie Cordero, this is the one part of today's hearing that looked back at the Clinton e-mail story, which, of course, went on for months and months.

    How do we read what Director Comey is saying here about the former attorney general, Loretta Lynch?


    So, I think the former director has take a really bad rap on this July decision to go public with his finding.

    In my view, the attorney general at the time, Loretta Lynch, put him in an extraordinarily difficult position. She didn't officially recuse from the decision, which she could have done after the tarmac meeting, nor did she say, I'm going to make the decision and I own it.

    And because she did neither of those things, either said she was going to make the prosecutorial decision and own that decision, or officially recuse and say, Sally Yates is in charge, she left this sort of middle ground where she just said, well, I'm going to accept the decision of the prosecutors.

    And, therefore, I think that what the former director was saying is, he felt then that that would have tainted any future decision.


    I think some people — George Terwilliger, some people who are close to the former attorney general are saying that this came up more innocuously, that it wasn't an order, stop using the term investigation, call it a matter.

    Be that as it may, Comey has left out there being very critical of the former attorney general.


    Yes, I'm sort of troubled by this aspect of that exchange and what we heard today.

    I can understand the point that Carrie makes that Comey felt like the decision-making process at the Justice Department appeared corrupted because of the tarmac visit and so forth. But there's other remedies to that.

    And to point to a discussion with the attorney general, I mean, I sat in the attorney general's office. I was the acting attorney general. I'm sure I had discussions with subordinate officials about whether to call something a matter or an investigation. And I'm not saying this wasn't significant.

    But it seems to me it kind of got blown out of proportion, if that's the justification for the July proceeding.


    John Carlin, how do you see this?


    I'm going to move to where Carrie started, which is, we know the Russians are going to attack us again. They tried to undermine confidence in the integrity of our election.

    It was reaffirmed today. It's been reaffirmed by every national security official. And they're going to do it as early as 2018.

    Right now, when you think about the decisions last summer about the Clinton investigation, about the Russian investigation, it is extraordinarily difficult for the political appointees to make a decision calling out investigations, particularly when they have to do with the interference in an election.

    What I worry about going into 2018 is, we're in far worse shape right now in having a credible official who can call out Russian meddling in our elections. And so I think we should think seriously about which career — nonpartisan career officials do we give the task of calling out if the Russians attack our electoral system again in 2018?


    In about 20 seconds, Greg Craig, you get to weigh in here, final word.


    Well, on the Comey press conference in July, I do have views on that. I think he violated guidelines and practices in the Justice Department. And he went beyond that and commented on her conduct. And it was unacceptable. And it was a mistake, a terrible mistake.


    Well, that one, I don't think we're going to resolve as we sit here this evening.

    But thank you all for being here. Greg Craig, Carrie Cordero, John Carlin, George Terwilliger, thank you all very much.

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