What The House Should Ask James Comey When He Testifies Again Today

What The House Should Ask James Comey When He Testifies Again Today

On Monday, former FBI director James Comey returns to the hill for a second round of questioning before the House judiciary and oversight committees.
Margot Cleveland
By

On Monday, former FBI director James Comey returns to the hill for a second round of questioning before the House judiciary and oversight committees. Given Comey’s testimony during the day-long December 7, 2018, deposition, committee members would be well served to focus on three issues.

First, the House should determine what Comey didn’t know. Before Comey’s first round of closed-door questioning before the joint committees, I complied “a giant list of questions” to pose to the former FBI director. But it soon became apparent that Comey didn’t have the answers. As outgoing House Oversight Committee chair Trey Gowdy put it to Fox News host Martha MacCallum, “I was disappointed in what he didn’t remember, but I was much more disappointed in what he never knew.”

The revelation that Comey never knew some basic facts about the investigation into members of Trump’s campaign—such as the role of the Department of Justice’s Bruce Ohr in feeding intel to the FBI—was significant: It suggests a startling lack of oversight, a potentially rogue element within the FBI and DOJ, and the ability of investigators to engage in undetected misconduct. What the House committees need to assess now is how far Comey’s ignorance reached.

What, if anything, did Comey know about the investigation into George Papadopoulos and Joseph Mifsud? Comey claimed it was Papadopoulos’ statement to a foreign diplomat that prompted the launch of Crossfire Hurricane, the FBI investigation of Trump during the campaign. What did Comey know about that foreign diplomat, Australian Alexander Downer, and how his meeting with Papadopoulos came about? What about the details of Downer’s meeting with Papadopoulos purportedly passed on to State Department officials?

The tip Papadopoulos received about the Russians having dirt on Hillary Clinton came from the purportedly Russian-connected Mifsud. Did Comey know anything about Mifsud? What about the investigative steps agents took to assess Mifsud’s supposed Russian connections?

Did Comey know that Mifsud spoke at a State Department event in Washington DC some six months after the investigation began? Did Comey direct agents to question Mifsud? Did he speak with agents following that questioning? And what knowledge and role did Comey have in overseeing the questioning of Papadopoulos?

Comey’s initial testimony before the committees also suggested limited knowledge about the Steele dossier—the opposition research compiled by former British spy Christopher Steele. When Comey returns to the hill, the committees should drill down on the exact limits of his knowledge and specifically tie those questions to the information contained in the Foreign Intelligence Surveillance Act applications that Comey signed.

Relatedly, the committees should walk Comey through the FISA applications, asking what he knew about the various assertions he verified in signing the application. While redactions limit the committees from fully understanding Comey’s knowledge, starting with the details revealed will allow the committees to determine if Comey merely rubber-stamped the applications or had detailed knowledge of the assertions contained in the Carter Page FISA applications.

Next, the committees should determine whether Comey had any knowledge of the involvement of other individuals, agencies, or foreign governments. Did Comey know of any involvement by the State Department in the Crossfire Hurricane investigation? What about members of Congress or their congressional offices? What individuals did Comey know were involved in the investigation? He already denied knowing Ohr’s role in the investigation. Of the known players, was Comey ignorant of any of their roles in the affair?

It would also be helpful to understand Comey’s knowledge about the June 9, 2016, Trump Tower meeting with Donald Trump Jr. and a handful of Russians, but during the first round of question Comey refused to go there, because of ongoing investigations. So that line of inquiry is likely limited.

Finally, for each of the above series of questions, if Comey had limited knowledge, the committees should determine which Comey subordinates would possess the relevant information.

Clarifying Comey’s Testimony

A second area of focus for the committees should be to clarify Comey’s prior testimony that the agents who interviewed Trump’s then-national security advisor Michael Flynn “observed no indicia of deception, physical manifestations, shiftiness,” but that “the conclusion of the investigators was he was obviously lying, but they saw none of the normal common indicia of deception.”

After reminding Comey of his testimony, the committees should read from former FBI agent Peter Strzok’s 302, which was filed late Friday in Flynn’s pending criminal case. That 302 stated that Strzok and the second agent involved in questioning Flynn “both had the impression at the time that Flynn was not lying or did not think he was lying.” Then committee members should read from former FBI deputy director Andrew McCabe’s testimony that “the two people who interviewed [Flynn] didn’t think he was lying.”

Comey should then be asked whether those statements help refresh the former FBI director’s recollection of the post-interview conversations he had with agents, or the content of the original 302 that summarized the Flynn interview.

Confirming FBI Operation Procedures

Finally, the committees should confirm with Comey the procedures governing the FBI’s investigation, then quiz the former FBI director on his agents’ compliance with those procedures. Here, the committee should walk Comey through the Domestic Investigations and Operation Guide updated on September 2016, and issued under Comey’s name.

Several provisions prove significant, including 18.5.6.4.6, which addresses information offered by congressional members and their staff, 18.5.6.4.7, which discusses information offered by White House personnel, and 18.5.6.4.8, which addresses information provided by members of the media during interviews. While many of the details of these provisions remain redacted—and thus Comey will be unwilling to detail the missing content—the committees should ask the former FBI director whether his agents complied with those requirements.

Additionally, Comey should be asked to confirm the FBI’s governing guidelines for interviews in effect at the time the FBI agents questioned Flynn, Papadopoulos, and Mifsud. Section 18.5.6.4.15 of the Domestic Investigations and Operation Guide discusses documentation of interviews, including the use of the FBI’s FD-302 form. Section 3.3.1.14 covers the rules governing the retention of investigative materials, including statements and handwritten notes later summarized in a FD-302 interview memorandum.

Once establishing the governing procedures, the committees should focus on the witnesses interviewed as part of Crossfire Hurricane. “These procedures would require the agents to retain any handwritten notes from interviews with Flynn, Papadopoulos, and Mifsud, correct, Mr. Comey?” And “The guidelines would require agents to complete the FD-302 as soon as ‘practicable,’ after those interviews, correct? What would be considered ‘practicable’? Five days? Ten days? Seven months?”

Finally, the committees should ask Comey whether the procedures were followed in the interviews conducted as part of Crossfire Hurricane.

Comey may not know the answers to these questions, but the scope of his ignorance provides further insight into the (mis)handling of the investigation into members of the Trump campaign. After the questioning reveals the vast voids in Comey’s knowledge and oversight, the committee members have the perfect opportunity to punctuate the key take-away: Given the breadth of Comey’s ignorance, the former FBI director cannot credibly attest to the propriety of the investigation or the FISA applications.

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame. The views expressed here are those of Cleveland in her private capacity.

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