Comeygate: Should the former FBI director be investigated for obstructing the Russia investigation?

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(SAUL LOEB/AFP via Getty Images)

Op-ed views and opinions expressed are solely those of the author.

Our country’s government spent years and many millions, ultimately unsuccessfully, investigating every microscopic nuance of potential obstruction by President Trump of the Russian collusion investigation.  In light of recent revelations, should the sanctimonious James Comey, former Director of the FBI be investigated criminally for potential obstruction of the same investigation?  

As the Mueller Report suggests, obstruction of justice can involve an attempt, that is, any “endeavor,” to impede an investigation, even if unsuccessful.  Attorney General Barr, strictly construing the statute, limits the crime to any attempt to affect the availability or quality of evidence in an investigation.  

So our first question is very simple: when President Obama met with his national security officials on January 5, 2017, was there any discussion about Comey’s plans to keep from the incoming President Trump and his national security team evidence being gathered in the Russian collusion investigation?  If there was, wouldn’t this be a conspiracy to “endeavor” to limit the availability of evidence?  Yes, it would, at least involving those who approved of Comey’s plans.  

The soothingly dismissive response from Comey’s advocates would be as follows.  It is generally accepted that the Attorney General is in charge of criminal investigations and that keeping evidence from him and his agents is a crime, as distinguished from keeping it from the President.  Under this view, so long as evidence was not kept from the Acting Attorney General Rod Rosenstein (Attorney General Sessions had recused himself), all would be well.  Using this analysis, not only is it acceptable to keep evidence from Trump, it is advisable to do this, so that he could not taint or influence the Attorney General’s investigation.  

This view would seem, at first blush, to accord with the prosecution of President Nixon’s obstructive acts which drove him from office in the Watergate scandal.  He attempted by fraudulent concealment to keep “Mexican money trail” evidence from the FBI, the Attorney General’s investigatory agent.  The President could obstruct the Attorney General’s investigation, even though, of course, the Attorney General served under him.  But in adopting this analysis, we miss a crucial distinction.  The “Russian collusion” investigation, unlike the Watergate burglary investigation, was not a criminal probe, but, rather, a counterintelligence investigation.  

The Attorney General and the FBI may work on such a counterintelligence investigation, but this is a matter that is always within the President’s national security prerogative as the Commander in Chief under the Constitution.  The President, not the Attorney General, heads a counterintelligence investigation, run through his national security team.  So both President Trump and his National Security Advisor General Flynn had a right to be informed of all evidence and evidentiary methods.

If we are therefore to draw a true analogy to Watergate, on January 5, 2017, President Obama’s national security team apparently recognized that Comey planned to prevent the incoming national security team, headed by Trump, from receiving both the key evidence thus far gathered, and the methods used to gather that evidence.  Concealment is a form of fraud, and therefore a corrupt act, just as was President Nixon’s attempted concealment of the Mexican money.

We can now understand why National Security Advisor Susan Rice on January 20, 2017, sent herself the odd, flank-covering memo that President Obama wanted all to be done “by the book.”  She wouldn’t say this if all was truly “by the book,” and our analysis reveals her guilt behind these guilty words.  She knew what was going to happen, and did not want Obama’s fingerprints or hers to be on Comey’s near-certain obstruction.  

Rice said in her memo Obama wanted the team “to ascertain if there is any reason why we cannot share information fully as it relates to Russia.”  That same memo noted that Obama directed Comey “to inform him if anything changes in the next few weeks about how we share classified information with the incoming team.” The sum and substance of these statements imply that Obama knew that Comey will likely not share everything with Trump and the incoming team.  If there were to be an “open Kimono” approach, why bother to convene the meeting?        

Is there corroborating evidence?  Yes, the memo specifically noted Comey’s reluctance to share “sensitive” information about Russia with the incoming team.  Comey later was very guarded, cryptic and game-playing with Trump about the Russian collusion investigation, even though Trump as his Commander in Chief was the head of that investigation, and Flynn his top advisor.  There is no doubt but that Comey withheld information from Trump, and, more pointedly and harmfully, Flynn.  We must assume from the Rice memo that this withholding was predicted at the January 5 meeting.  

There certainly appears at least to because to conclude that President Obama was concerned that his holdover national security officials would withhold information from Trump and his team, which would be classic obstruction of justice.  Although we do not expect candor from “Cardinal” Comey, at the very least “institutional norms” of which Obama just recently spoke should be followed, and Comey and his aide Andrew McCabe should be investigated every bit as vigorously as General Michael Flynn. 


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