The Comey Hearing: Lots of big news (No GOP attack dogs; Lynch, Sessions, Rosenstein in trouble; McCain’s health)

  1. Nothing today changes my interpretation yesterday of the Comey timeline: taken all together WITH the firing, it constitutes obstruction of justice, but not a clear enough case for impeachment yet, especially in political terms. There are only minor additions from the testimony: When Trump said “I hope you can let it go,” Comey explained the tone: it felt like a directive. Comey also gave more context to the McCabe exchange as a hint of a quid-pro-quo. There’s more detail and context, but I don’t think that’s the biggest news of the day, other than putting a credible face and strong voice on TV with his powerful written statement from yesterday.
  2. My biggest question going into these hearings was: How seriously are the Republicans taking this inquiry?  The republic depends upon the Repubicans in Congress, and especially the Senate Intelligence Committee.  I’m not saying that Republicans were actively building a case for a prosecutor or impeachment, but I can’t emphasize enough how significant it is that none of the committee’s Republicans pressed any  attack on Comey’s character, motives, or credibility (other than McCain, more on that below). None of them were willing to play the attack dog role (see Arlen Specter from the Clarence Thomas-Anita Hill hearings). Their defense of Trump was relatively tepid, and I thought their questions were fair.  I think it’s a very positive sign that the committee will continue to investigate and work together — with Comey-ty? (Sorry!).  And there are strong signs that the inquiry will expand to other major players (more on that below, too.)

3a. Loretta Lynch, say it ain’t so. I can’t stand by my earlier criticism that the GOP was asking about Clinton email to distract from the Trump questions. They may have intended to change the subject, but they found a real subject to investigate further. Comey revealed Loretta Lynch pressured Comey to use the word “matter”, not investigation, was a huge mistake, a partisan intrusion, and probably changed history by making Comey more skeptical about her and the Clintons’ role. I inferred that it had an effect on Comey that may have changed how he handled the investigation later. She will face very tough questions. And it validates the follow-up questions on the Clinton campaign on their handling the email. We will hear a lot about this. It does not rise to obstruction, because it was wording/semantic, not the substance of investigation, but Comey was right to be troubled. Lynch and Bill Clinton should be called to testify and explain their behavior. What’s obstruction for the goose is osbstruction for the gander.

3b. But Comey re-emphasized that he was confident there was no underlying crime, and appointing an independent counsel would have been “brutally unfair.” He was wise to clarify that point.

4. McCain was incoherent and confused today, and he seemed off yesterday, too. He seemed to imply that the Clinton campaign could have been colluding with Russia, but he didn’t clarify this point. He mixed up names (Comey/Trump) and words several times. He claimed to see inconsistency with how Comey closed the Clinton case, but wouldn’t close the Trump/Russia case, but that claim is incoherent, too. I think it’s fair to attribute McCain’s conduct today to illness, not ill intent.

5. Comey repeatedly said he could not address questions about Attorney General Sessions because of the on-going investigation. Comey answered, “I was aware of facts” about Sessions’s Russia contacts that meant he didn’t go to Sessions in this matter. Comey confirms that Sessions is a possible target of the Mueller investigation. That’s not a surprise, but it underscores how this investigation is getting broader and closer to Trump. Sessions’s failure to follow up on his recusal is another big question about his own obstruction of justice in his case, as he participated in the firing.
6. Rod Rosenstein will face his own questions. Comey told Rosenstein about his concerns with Trump’s conduct (which should have raised red flags).  And yet Rosenstein still wrote the memo justifying his firing. Rosenstein may face fair questions about his possible participation in obstruction of justice.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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