Good morning, ladies and gentlemen and welcome to the first of two days of U.S. Senate Select Committee on Intelligence hearings with former FBI Director James B. Comey. Over the course of these two days, we will cover seven topics. Let’s begin now:
Mr. Comey, to be blunt, sir, your well-established pattern of public virtue-signaling even as you refuse to answer questions from both Senate and House committees about your own behavior and the behavior of the FBI, has caused us to reconsider our normal procedures. By refusing to be responsive to the American people’s elected representatives, your actions have made you appear more interested in promoting your own self-interest and/or a political agenda than in seeking justice. As a result, we will dispense of your opening statement―which was already publicly issued ahead of this hearing―and instead move on to a series of questions in seven broad categories for you to answer about the FBI’s role in this investigation and your participation in it.
As we proceed, we would like to remind you, sir, that the FBI is a law enforcement tool created by the Congress to assist the president in the carrying out of his constitutional duty to execute the laws of the United States. It has no power apart from the powers we have granted it and it is answerable, only, to the president himself. As such, it is answerable to the Congress as the representatives of the sovereign people of the United States from whom, of course, all legitimate authority derives.
Topic #1: Why Have You Refused to Cooperate with Congress?
1. The New York Times reported on May 16 that you created memos regarding every phone call and every meeting you had with President Trump. Why did you decline a bipartisan invitation on May 17 to testify voluntarily before the Senate Judiciary Committee, which is the FBI’s primary Congressional oversight committee, about those memos and more?
2. Did you also create memos for every phone call and every meeting you had with President Obama? With Attorneys General Lynch and Sessions? If you did not, why did you treat your interactions with Lynch over the Clinton email server investigation differently from your interactions with President Trump over the Russia probe?
3. Four members of the bipartisan Senate Judiciary Committee, including Chairman Grassley and ranking member Feinstein, wrote Acting FBI Director McCabe on May 17 asking for copies by May 24 of any of your memos describing interactions between you and Deputy Attorneys General Rosenstein, Boente and Yates, Attorneys General Sessions and Lynch, and Presidents Trump and Obama regarding investigations of Trump associates’ alleged connections with Russia or the Clinton email investigation. We still have received no information from the FBI. Why?
4. Your statements about President Trump draw on these memos. The same four members of the bipartisan Senate Judiciary Committee wrote you on May 26, asking for answers by June 2 to seven questions about (a) who outside the Justice Department you discussed either the investigations of Trump associates’ alleged connections with Russia or the Clinton email investigation; (b) whether you created any memos about your interactions on the same two topics with Deputy Attorneys General Rosenstein, Boente and Yates, Attorneys General Sessions and Lynch, and Presidents Trump and Obama, and who you provided copies to; (c) whether you discussed or shared such memos with anyone either inside or outside the Justice Department; and, (d) whether you retained copies or access to such memos.
align=”left” As we proceed, we would like to remind you, sir, that the FBI is a law enforcement tool created by the Congress to assist the president in the carrying out of his constitutional duty to execute the laws of the United States. It has no power apart from the powers we have granted it and it is answerable, only, to the president himself.
Why did you submit a formal refusal to answer those questions which are central to your claims against President Trump in recent weeks, saying you are now a private citizen, when others, such as former CIA Director Brennan, Director of National Intelligence (DNI) Clapper and Deputy Attorney General Yates all have testified in recent weeks after leaving office? Your behavior can only be described as stonewalling and self-serving since the memos are “government work product.” Why do you think you are entitled to be treated with less accountability? Why do you deserve a forum here to give your public statement without being responsive to requests from Congressional committees?
5. You have said repeatedly in past hearings that you cannot answer certain questions in a public hearing due to information being classified. The May 26 letter, and others before it, provided you with a formal means to differentially submit classified and unclassified information to the Judiciary Committee. If your intentions were truly to let the facts speak for themselves, why did you not take advantage of their offers?
6. The leaders of this Senate Intelligence Committee, Chairman Burr and ranking member Warner, also asked the FBI in mid-May to turn over memos prepared by you detailing conversations you had with the White House and Justice Department about the FBI’s Russia investigation. We still have not received any documents.
7. Chairman Chaffetz of the House Committee on Oversight and Government Reform wrote Acting FBI Director McCabe on May 16, asking to receive your memos and any related notes, summaries and recordings by May 24. The FBI denied the request on May 25, saying that nothing will be provided until after the agency consults with special counsel Mueller. Why is that consultation appropriate or necessary, as it suggests the special counsel can control what information is made accessible to the Congress? Mr. Chaffetz responded on May 25, asking again for such information dating back to September 2013 to be received by June 8 and noting that the committee has “its own, Constitutionally-based prerogatives to conduct investigations” that are complementary to the special counsel. Mr. Chaffetz also stated that Deputy Attorney General Rosenstein said that Mr. Mueller’s investigation “should not impede’ the ongoing congressional probes.” None of the requested information has been received from the FBI. Why do you get to talk about the memos in this hearing but the FBI is allowed to stonewall the committee?
8. You testified under oath to the House Intelligence Committee on March 20 that the Russian counter-intelligence investigation began in July 2016 and that quarterly briefings have been the norm for briefing the DNI, the White House, and senior congressional leadership on such activities. But you testified that you did not brief congressional leadership for the first time on this until March 2017 “because of the sensitivity of the matter.” Why? What entitles you to be the arbiter of who receives information? How do your actions allow the congressional oversight function to function appropriately? You also testified that you did not brief the DNI until after the position was filled by Mr. Coats on March 15, 2017. However, Mr. Clapper held the DNI position until January 20, 2017. Are you saying you never briefed Mr. Clapper prior to his resignation? If so, why not? If you did, was your testimony in error?
9. The House Intelligence Committee wrote the NSA, CIA, and FBI on March 15 asking for information about the NSA’s surveillance of the Trump campaign during the 2016 election. Chairman Nunes reported publicly back in March that only the FBI was refusing to cooperate. Ranking member Schiff has stated that you declined to answer many of the lawmakers’ questions and that such reticence “can’t persist.” Why did you not respond to the March 15 letter? Please disclose your knowledge of the surveillance and unmasking efforts during your tenure, which do not appear to have any connection to the Russia probe.
align=”right” What entitles you to be the arbiter of who receives information? How do your actions allow the congressional oversight function to function appropriately?
10. Why were you leaking information—at least some of which had to have been, at a minimum, privileged communications with the president and a government work product—with others while you stonewalled Congressional oversight committees who were investigating matters directly related to the content of your memos?
Is it not true that, as FBI Director, you already had the power to request the appointment of a special counsel? Why did you choose not to exercise that power? But, since you did not, reasonable people will not be out of bounds to conclude that your decision to leak information to the media was for less than admirable reasons, such as partisan politics.
At the May 3 Senate Judiciary Committee hearing, you testified under oath that you had never been an anonymous source in news reports relating to the Trump investigation. Is that answer why you have said today that you chose to pass the information onto Mr. Richman instead of offering it directly to the media?
Think of the irony created by your actions, sir: Senator Grassley, the Chairman of the Senate committee responsible for FBI oversight, now has to write Mr. Richman on June 8 to get a copy of your leaked memo, because you—the former FBI Director—refuse to turn it over to Congress, as previously asked of you.
The Federal Records Act and the FBI’s Records Management regulations state that “any document made in the course of business” is the property of the government. In addition, you have testified that you wrote these memos immediately after leaving your privileged discussions with the president, which means you wrote these memos on a government computer while riding in a government car. What basis do you have for claiming the memos are your personal property, as you have asserted in your testimony today? Do you agree that it is a crime to leak such information? Do you agree that your leaking such information violates your FBI employment non-disclosure agreement and represents yet another crime?
You have further testified that you wrote these President Trump meeting memos to be unclassified because making them classified would “tangle it up.” Are not your words a euphemism for saying it would be more likely for you to be charged with a crime if you leaked classified information?
There are also timeline inconsistencies in your testimony about the leaks. You have spent no small amount of time testifying today about your personal discomfort with President Trump. What would happen if every government employee decided they were free to leak privileged information solely because they felt personal discomfort with their boss? If you were so uncomfortable, why didn’t you do the honorable thing and resign?
align=”left” What basis do you have for claiming the memos are your personal property, as you have asserted in your testimony today? Do you agree that it is a crime to leak such information? Do you agree that your leaking such information violates your FBI employment non-disclosure agreement and represents yet another crime?
In particular, you have stated that your memo about the January 27 dinner included President Trump allegedly asking for your loyalty and hoping you would let the General Flynn issue go. Shortly after your termination, President Trump tweeted on May 12 about the possibility of your meetings being taped. You have testified that you woke up on May 16 and decided to have Mr. Richman leak your memo to the New York Times, which led to a new May 16 article. However, the New York Times had already published an article on May 11 discussing the alleged loyalty request. Would you care to modify your testimony now?
Your testimony seems willfully to ignore the ethical issues created by your decision to leak information for the purpose of getting a special counsel appointed. Can you appreciate how such manipulative behavior makes you look petty and personally vengeful about your termination, even as you acknowledge the President’s right to fire you?
Mr. Comey, perhaps this first group of questions will help the public appreciate how the demonstrable “pattern of obstruction” (to use Senator Grassley’s words) and even the apparent commission of crimes thus far have only come from you. This is reinforced by your unwillingness to answer questions even in closed Congressional sessions. The repeated stonewalling, and acting as if you alone are above the law, suggests there has been a coverup or some other misdirection effort for political gain at the highest levels of the FBI. This is not new behavior on your part. Why have you refused to tell Congress who requested General Flynn’s name to be unmasked, a felony and the only publicly known crime at this time as well as a violation of General Flynn’s civil liberties, all of which the FBI seemed strikingly disinterested in pursuing during your tenure?
Topic #2: Russia Probe
11. It has been ten months since the FBI started its investigation into the Russia collusion probe. Among others, House Speaker Ryan, DNI Clapper, Chairman Nunes, Congressman Stewart, ranking member Congressman Schiff, Congresswoman Waters, ranking member Senator Feinstein, Senator Manchin, and ranking member Senator Warner have all declared publicly they have not seen evidence of collusion with Russia by Trump associates. It is hard to find anyone in Washington, D.C. who believes ten months could pass without leaks of negative facts, if there were any. Furthermore, your testimony today has called out a major New York Times article that was behind the public narrative about Russian collusion as false. Where is there any evidence of collusion, vote tampering or hacking of voting machines?
12. No one expected President Trump to win his party’s nomination. Even as late as the end of October, few expected Trump to win the general election. Given that fact pattern, why would Putin have recruited him or members of his team many months before if nobody thought he could be elected President?
13. Sources have reported that President Trump is not a personal target of either a criminal or a counterintelligence investigation. You have publicly confirmed today that you shared this information with President Trump three times, as he previously stated, and Congress. (For documentary evidence check out 1:13-2:40 and 5:28-6:38 at this video link.) What purpose was served by you waiting until now to inform the public? How do you justify this silence when you were willing publicly to state Hillary Clinton was not a subject of prosecution when it was clear she had broken laws?
14. Famed civil libertarian and Clinton voter Alan Dershowitz has said that the Russia probe is ““being done backwards,” in a manner comparable to Stalin’s secret police.” If there continues to be no evidence, what is the crime that justifies a continuing investigation and how can it go on without looking like a witch hunt, a politically-driven investigation in search of a crime and targets—like happened with Scooter Libby when you were part of the Justice Department? And, as you once acted toward Frank Quattrone based on his 23-word email. Why would that not be an appropriate way to view the grilling of General Flynn, after nothing illicit was found on his calls with the Russian ambassador? How is it fair and just to leave people dangling in the wind, convicted by innuendo in the absence of evidence, due to illegal leaks. What else could we be missing?
Mr. Comey, as we conclude day one of these hearings, perhaps you can appreciate how the view of your efforts over the last year consists of four empirical observations:
First, the Russia probe has found no evidence of collusion or hacking but the FBI has persisted in its investigation. Even MSNBC’s Chris Matthews now agrees there is nothing there.
Second, you routinely withheld information from Congress, making it impossible for us to know what you were doing so we could hold you accountable to the rule of law.
align=”left” These behaviors together do not inspire a special sense of confidence in the competence of the FBI or your leadership of it. Indeed, they convey no sense of fair play and suggest that justice is very unlikely to be served in any investigation of this matter to which you or any of your associates may be a part.
Third, you willfully chose to keep the public in the dark about some things, but not others, creating unnecessary politicization and public turmoil due to information asymmetries.
And fourth, your investigation has shown a lack of interest in the criminal unmasking leaks, the only publicly known crime at this time.
These behaviors together do not inspire a special sense of confidence in the competence of the FBI or your leadership of it. Indeed, they convey no sense of fair play and suggest that justice is very unlikely to be served in any investigation of this matter to which you or any of your associates may be a part.
As we conclude today’s hearing, I will ask you to remember again what was said as we began this hearing: the FBI is a tool of the president to be used for the purpose of executing the laws of the United States as passed by their legislature and approved by their executive. The FBI has no powers apart from those delegated to it under statute by Congress. The sovereign people of the United States will express their approval or disapproval of your work through their election or rejection of the president. Therefore, the FBI and its director are subordinate to the president of the United States who, of course, is subject to the sovereign: the people of the United States. No FBI Director is above answering to them.
Editor’s Note: Follow this link in order to read part 2 of this article.