Republicans on the Senate Intelligence Committee had some questions for former FBI Director James Comey that at times appeared to emerge from different versions of events entirely.
Sen. Marco Rubio (R-FL) asked about the Democratic governor of Virginia. Sen. John McCain (R-AZ) returned to the FBI’s Hillary Clinton email investigation. Sen. James Lankford (R-OK) suggested Donald Trump had intervened in the FBI’s investigation into former NSA Adviser Michael Flynn with “a light touch.”
Though Democrats were quick to seize on Comey’s remarks, Republicans — both in the Capitol in general, and on the committee specifically — said Comey’s testimony didn’t amount to a damning indictment of the president’s conduct. Much less, congressional Republicans said, does it reveal an impeachable offense (as several House Democrats are claiming).
From the hearing alone, much of the Republican Party’s response to the Comey controversy is coming into view. Here are four lines of argument they have begun to advance.
1) The real criminal behavior worth probing here is leaks
Most of the commentary about Comey’s hearing has focused on whether Trump obstructed justice by telling the former FBI director, “I hope you can let this go,’” over his investigation into Flynn.
But several congressional Republicans emerged from Thursday’s hearing instead with a very different question of criminal conduct on their mind.
Rep. Steve King (R-IA) said he was most concerned with the leaks. “There were two big questions out there on laws that may have been violated. One of them was, ‘Where did the leak come from about the phone call between General Flynn and the ambassador from Russia?’” King said in an interview. “And the other one was, ‘Where did the leak come from of the Comey memo?’”
A similar line of questioning emerged from Republicans on the committee. Sen. Roy Blunt (R-MO) also asked Comey why his memos — which detailed his conversations with President Trump — were given to the press. Comey had explained that his memos were given through a friend to the New York Times because he didn’t want the media camping out at his residence like “geese.” Blunt seemed to argue that his explanation didn’t add up.
“So you considered it to be, somehow, your own personal document that you could share with the media,” Blunt said. “It does seem to me what you do there is create a source close to the former director of the FBI as opposed to taking responsibility yourself for saying, here are the records.”
Both Republicans and Democrats, in addition to Comey himself, have bemoaned the proliferation of classified leaks. But Comey’s memo, as he explained multiple times in his hearing, was unclassified. And as for the Flynn call to the Russian ambassador, it seems odd that Republicans would rather focus on how they learned about the act than what the act entails.
2) Why didn’t Comey resign or raise his concerns sooner?
Other Senate Republicans probed Comey by asking why he waited several months — and until after he was fired — to reveal that Trump asked him to slow the investigation into Flynn.
There’s some logic to this line of reasoning. After all, if Trump possibly committed a serious offense in January, why would Comey keep it private until May and then let it reach the public? Rubio, for instance, asked why Comey didn’t directly take his concerns to the White House counsel.
Sen. Tom Cotton (R-OK) also took a shot at this attack by comparing Comey’s silence to his decision in 2004 to offer his resignation over his belief that the Bush administration’s wiretapping program was illegal. If Trump’s actions over Flynn were so dangerous, Cotton suggested, why didn’t Comey offer his letter of resignation this year as he had in 2004?
COTTON: You were acting attorney general when attorney general John Ashcroft was incapacitated due to illness. There was a dramatic showdown at the hospital here. The next day you said that you wrote a letter of resignation, and signed it before you went to meet with President Bush to explain why you refused to certify it. Is that accurate?
COMEY: Yes, I think so.
COTTON: At any time — in the 33-and-a-half months you were the FBI director during the Trump administration — did you ever write and sign the letter of recommendation and leave it on your desk?
COMEY: Letter of resignation? No, sir.
COTTON: So despite all of the things that you've testified to here today, you didn't feel this rose to the level of an honest but serious difference of legal opinion? ...
COMEY: I wouldn't characterize the circumstances of 2004 that way. But to answer no, I didn't find — encounter any circumstance that led me to intend to resign, consider to resign, no, sir.
Critics might respond that, despite Cotton’s questions, there’s a pretty big distinction between the two episodes. In 2004, Comey had to choose between enforcing what he regarded as an illegal action and resigning. In 2017, Comey was conducting a criminal investigation that could be expanded to include the president’s conduct, and now has under the special counsel probe. Cotton is attempting to make the two sound similar here, but it’s far from clear that they are.
3) Why wasn’t there a special prosecutor appointed in the Clinton investigation?
Another tactic employed by Senate Republicans on the committee was to ask why their requests for a special prosecutor into the Hillary Clinton email server were denied.
The link between that accusation and Comey’s testimony may at first seem tenuous. But the idea — at least as advanced in the hearing by Sen. John Cornyn (R-TX) — was that the Justice Department had shown a double standard by supporting a special counsel investigation into the Trump-Russia controversy, while denying one over Clinton’s emails.
Here’s Cornyn’s exchange with Comey:
CORNYN: Were you aware that Ms. Lynch had been requested numerous times to appoint a special counsel and had refused?
COMEY: Yes. From I think Congress had — members of Congress had repeatedly asked, yes, sir.
CORNYN: Yours truly did on multiple occasions. And that heightened your concern about the appearance of a conflict of interest with the Department of Justice which caused you to make what you have described as an incredibly painful decision to basically take the matter up yourself and led to that July press conference.
COMEY: ...[I] decided that that would be an unfair thing to do because I knew there was no case there. We had investigated very, very thoroughly. I know this is a subject of passionate disagreement. But I knew there was no case there. Calling for the appointment of special counsel would be brutally unfair and would send the message there's something here. Lots of people have different views but that's how I thought.
CORNYN: If the special counsel had been appointed they could have made the determination that there was nothing there and decided not to pursue it.
Like Cotton, Cornyn is implying a fundamental similarity between the appointment of special investigators in each case. But Comey’s response is, similarly, that the two are wildly different examples. Comey says that a special counsel in the Clinton probe would have been “unfair because I knew there was no case there.” By contrast, in the Trump-Russia probe, the Justice Department’s deputy attorney general thought that there were grounds enough for an independent investigation, so he was willing to appoint a former FBI director as special counsel.
4) Did Trump really mean it when he suggested Comey drop the investigation?
Republican senators parried on the accusation that Trump potentially obstructed justice in the investigation into Flynn by arguing that the president’s conduct shouldn’t be taken too seriously. Sen. James Lankford (R-OK) characterized the request to drop the investigation into Flynn as the president exhibiting a “light touch.”
“The key aspect here is if this seems to be something the president is trying to get you to drop it — it seems like a light touch to drop it,” Lankford said.
The thrust of Lankford’s argument was that Trump had already expressed his frustration on Twitter about the Russia investigation. If he had already done so, Lankford suggested, is it really that big a deal that he communicated the same desire to you in private?
He added to Comey, “Well, is there any question that the president is not real fond of this investigation? I can think of multiple 140-word character expressions that he's publicly expressed he's not fond of the investigation. I heard you refer to before trying to keep the agents away from any comment that the president may have made. Quite frankly, the president has informed around 6 billion people that he's not real fond of this investigation. Do you think there's a difference in that?”
Comey had a response ready, arguing that there was a “big difference” between the president publicly venting about the investigation and privately telling the FBI director to alter its trajectory:
There's a big difference in kicking superior officers out of the Oval Office, looking the FBI director in the eye and saying I hope you let this go. I think if agents as good as they are heard the president of the United States did that, there's a real risk of a chilling effect on their work. That's why we kept it so tight.
Republicans had an opportunity to get to the bottom of Comey’s story about Trump. But they reached hard for other possible explanations for what so many are starting to consider may be evidence of obstruction of justice. As Vox’s Matt Yglesias notes, the only possible check on Trump’s authority right now is Congress, which is controlled by the Republican Party. As long as the GOP continues finding arguments to deflect from Trump’s alleged obstruction of justice, nothing will change that underlying reality.