But Donald Trump IS Under Investigation
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But Donald Trump IS Under Investigation

When Big Media Repeated Republicans’ Talking Points, They Glossed Over Comey’s Verbal Sidestepping

David Cay Johnston

Some of the most important June 8 testimony by James Comey was glossed over by the Washington press corps and distorted by Trump loyalists, so let’s examine what Comey said and its significance.

Donald Trump Tweeted “complete vindication” after Comey testified. His allies selectively quoted Comey to assert that Trump is not, and was not, the subject of an FBI counterintelligence investigation.

Comey testified under oath (emphasis added): “…it was technically true, we did not have a counterintelligence file case open on then-President-elect Trump.”

The Trump campaign is the subject of such an FBI investigation because of numerous contacts with Russian banking, intelligence and other operatives. Many of these contacts by Trump’s closest allies, including Attorney General Jeff Sessions, covered up their contacts with Russians until disclosures by journalists prompted them to change their stories.

Significantly, Trump chose as his national security adviser a paid agent of the Kremlin, a hostile foreign power that all 17 American intelligence agencies say interfered in our 2016 federal elections.

Michael Flynn, a retired three-star general, had dinner with Putin and was paid at least $40,000 by the Kremlin’s propaganda broadcaster, Russia Today. Flynn later registered — retroactively — as a foreign agent of Turkey, though the payments came from a Russian.

Stop and ponder that–the Russians had a man they paid, and who tried to cover up the payment, in the White House advising Trump on national security.

Senator Richard Burr, the North Carolina Republican who chairs the Senate Intelligence Committee, asked Comey about Trump’s request to “let Flynn go.”

“[W]as General Flynn, at that time, in serious legal jeopardy?” Burr asked.

Comey replied that Flynn “…at that point in time, was in legal jeopardy. There was an open FBI criminal investigation of his statements in connection with the Russian contacts and the contacts themselves. And so that was my assessment at the time.”

That matters because Comey also testified that he had nine one-on-one conversations with Trump, in person or by telephone, in just four months. That compares with one with President George W. Bush, concerning “a very important and difficult national security matter,” and two with President Barack Obama over three years, one of which was just to say farewell as Obama’s second term ended.

In those nine meetings, including one where Trump ordered Sessions and everyone else to leave the room, Trump never asked anything about Russian interference in the American elections or anything else. Comey testified that Trump had only one concern: the Flynn investigation.

Significantly, Comey took no notes of the meetings with Bush and Obama, but he immediately wrote memos recording the exact words Trump spoke to him.

Courts regard such contemporaneous writings, known as memorializations, as powerful evidence and much more reliable than memories months or years later based on mere recollections.

Why did Comey feel the need to memorialize the one-on-one contacts with Trump? Partly, Comey wrote, it was because he perceived that Trump was trying to create a patronage relationship by asking for a pledge of personal loyalty to Trump. Comey made clear that this was corrupt, though he did not use that word.

Comey said he wrote memos because of “the nature of the person: I was honestly concerned that he might lie about the nature of our meeting, and so I thought it really important to document.”

Comey also made clear that while it is technically true that Trump was not the subject of a counterintelligence investigation, that could change in an instant. He said one top aide did not buy the technicality argument.

“[T]his person’s view was, inevitably, his [Trump’s] behavior, his conduct will fall within the scope of that work. And so, he was reluctant to make the statement that I made. I disagreed. I thought it was fair to say what was literally true: There is not a counterintelligence investigation of Mr. Trump. And I decided, in the moment, to say it, given the nature of our conversation.”

That’s not vindication. That’s an investigation closing in from a ring of subordinates to the man at the center of the action.

The bottom line: Flynn is seeking immunity from prosecution in return for telling his story. Such a get-out-of-jail-free card is likely to be issued only if he can deliver up a bigger fish. And the only bigger fish is Trump.

When Comey ran the FBI, Trump was not the subject of an FBI investigation. That is true, but as Comey noted, even then it was only technically true. And now that Robert Mueller is special counsel, Trump is under investigation, whether he and his loyalists recognize it or not.

June 9, 2017