Release the Comey Tapes
The leak Tuesday of James Comey’s notes of a February conversation with Donald Trump is a classic of the former FBI director’s operating method that puts the Trump Presidency in peril and raises serious ethical questions about Mr. Comey’s behavior. Let’s step back from the immediate furor and examine the legal and political merits.
According to Mr. Comey’s memo to himself, Mr. Trump asked Mr. Comey in a one-on-one Oval Office meeting to “let this go,” referring to any investigation of former National Security AdviserMichael Flynn. “I hope you can see your way clear to letting this go, to letting Flynn go,” says the memo, parts of which were read to the New York Times by a Comey associate. “He is a good guy.”
The White House issued a statement denying Mr. Comey’s account of the meeting, adding that “the president has never asked Mr. Comey or anyone else to end any investigation, including any investigation involving General Flynn.” Mr. Trump’s many enemies are nonetheless calling this obstruction of justice, and perhaps grounds for impeachment.
The first question is how this squares with Acting FBI Director Andrew McCabe’s testimony last week that there has been no attempt to interfere with the FBI’s Russia probe. The Times reports that Mr. Comey spread word among his colleagues of his Trump conversation, and Mr. McCabe is a Comey loyalist. Perhaps a Flynn criminal probe is separate from the Russia-Trump investigation, but it isn’t clear what Mr. Trump knew in February.
The more important issue is why Mr. Comey failed to inform senior Justice officials and resign immediately after the conversation. If he really thought Mr. Trump was attempting to obstruct justice, the director knows he had a legal obligation to report it immediately. He certainly had a moral duty to resign and go public with his reasons.
Yet the Times reports that Mr. Comey merely wrote the notes to himself and informed a few others. One explanation is that perhaps Mr. Comey didn’t view Mr. Trump’s comments as amounting to obstruction.
Intent is crucial to proving obstruction, and without listening to the conversation it’s impossible to know the context and tenor of Mr. Trump’s “let it go” comment. Mr. Trump might be guilty of obstruction if he thought Mr. Flynn knew something damaging about Mr. Trump, but not if he was making a general remark to give the guy a break.
Another possibility is that Mr. Comey viewed the notes as a form of political insurance that could be useful in a future controversy. By not resigning but quietly spreading word among colleagues, Mr. Comey was laying down evidence that he could use to protect his job or retaliate if Mr. Trump did fire him.
The leak of Mr. Comey’s notes suggests that he or his allies are now calling on that insurance. Such behavior fits Mr. Comey’s habit over the years of putting his personal political standing above other priorities. And it echoes uncomfortably of the way J. Edgar Hoover used information he collected to protect himself against presidential accountability.
All of this will now be investigated by Congress, and Mr. Comey has been invited to testify. Jason Chaffetz, chairman of the House Oversight Committee, rightly wants to examine all of Mr. Comey’s notes about his February conversation, and any subpoena should be comprehensive. Leaks can often be selective but questions that touch on presidential obstruction need the full record.
The White House should also be forthcoming with any records of the meeting, including audio tapes. Mr. Trump hinted that recordings might exist when he tweeted Friday that “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!”
The White House has since refused to say if Mr. Trump has taped visitors to the Oval Office, but that evasion won’t wash. If tapes exist, the White House should release them immediately. The President has nothing to fear if the White House denial is accurate. If the tapes don’t exist, Mr. Trump’s trolling will look even dumber than usual.
Mr. Trump was foolish even to discuss the Russia probe with Mr. Comey. Perhaps this was due to Mr. Trump’s naivete rather than an attempt to block an investigation, but even a rookie should know to seek legal guidance before blundering into matters so fraught with political risk. After Mr. Comey’s performance in 2016, Mr. Trump should also have known he needed to name a new FBI director in January, as some of us advised. History might have been different.
The tragedy is that all of this has put the larger Trump reform agenda in jeopardy. Stocks took a beating Wednesday as investors assessed the possibility that Mr. Trump has sabotaged his own challenge to the Washington status quo. If Mr. Comey is out for revenge for his belated dismissal, Mr. Trump’s best defense is to get the facts out as quickly as possible.