June 14, 2017

RICHARD EPSTEIN: The Cagey Mr. Comey.

For Trump to hope that Comey would see it fit to back off sounds like he said what he meant and meant what he said. And Trump was right to be unhappy with Comey for refusing, without explanation, to make the simple, truthful statement that Trump was not personally under investigation in the Russia probe. Instead, Comey slow-walked that issue, which doubtless contributed to Trump’s legitimate concern that Comey was not loyal to him. Indeed, Comey offers no evidence to support his “instincts” of a grander plan, namely, that their “dinner was, at least in part, an effort to have me ask for my job and create some sort of patronage relationship.” His ostensible conclusion is all innuendo, cleverly used to set up the charge that he had been ordered to drop the investigation of Flynn.

In a sense, the situation is even worse. One of the striking moments in the Senate hearing was Comey’s account of his odd response to former Attorney General Loretta Lynch’s request that he speak of the Department of Justice’s investigation of the Clinton corruption charges as a “matter,” and not an “investigation.” In this instance, Comey himself was at risk, so he did not let the matter lie silent. He flat out asked her whether her request was an order and only made the requested statement when he was assured that it was. His own explanation was that “this isn’t a hill worth dying” for. But, in fact, Comey’s conduct was more damning than his flip remark lets on. Lynch ordered Comey to make a false statement about a matter of intense public interest and concern. Lynch’s foolish request “endeavored,” to use the statutory term, to tamp down the FBI investigation in order to create some political breathing room for the Clinton campaign. Comey should have told Lynch that he was not going to participate in a transparent ruse, period. Perhaps both he and Lynch were guilty of obstruction of justice.

His unwillingness to do so casts a harsher light on Comey’s effort to go slow on, and then abort, the Clinton e-mail investigation, when her destruction of government emails received on her unauthorized server constituted a textbook form of obstruction.

Yeah, it’s almost like he’s a political hack with an agenda or something.

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