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Friday, June 16, 2017

The Cross-Examination Of James Comey


by Thomas Del Beccaro, Forbes 

Did President Trump obstruct justice?
The Left is in an all-out war to make Trump a one-term president and to stop his policy agenda. Rather than primarily fight Trump over policy, the Left is fighting Trump with the legal system. The Left has claimed for months Trump colluded with Russia and now claims Trump obstructed Justice.

After six months of no evidence on the collusion front, Former FBI Director James Comey was to be the star witness for the Democrats on the obstruction front. Instead of being helpful, Comey confirmed that there is no evidence of collusion. Beyond that, he was such a bad witness, Comey destroyed any possible legal case against Trump - and made himself part of the investigation in the process.

On that last point, it must be said that Robert Mueller, the chief investigator, is the close friend and mentor of James Comey.  Now that Comey has placed himself at the center of the controversy, Mueller must resign. He cannot ethically investigate acts involving his friend. This is not even a close call. If he does not, the process will be more than tainted and America damaged even more. Mueller should do the right thing.

On the issue of collusion with Russia, Comey agreed with two comments made by California Senator Diane Feinstein that no evidence has been seen establishing collusion between the Trump campaign and Russia.  Given that collusion is not even a crime, it seems pretty certain that it is a dead end that even Chris Mathews recognizes.

As for obstruction and Russia, Comey was clear that Trump never said stop the Russian investigation.  To the contrary, Comey said he encouraged parts of it. As such, that part of the “case” is over except for the shouting.

As for the Flynn investigation and obstruction, Alan Dershowitz made it clear, and Comey agreed with him, that Trump could order the end of the investigation if Trump wanted to do that.  Dershowitz therefore concluded Trump could not have committed obstruction of justice by saying “I hope” it ends. In other words, that should end the matter.

But this is politics in the Divided Era and so the battle goes on.  Even if Dershowitz and Comey are wrong, Comey crippled his credibility and effectively ended the matter.

Recall that the day before Comey’s testimony, Senator Lindsey Graham, a former prosecutor and military judge, stated that Robert Mueller must not believe there is an obstruction case. He said that because, if Mueller did believe he had a case, he would never send out his chief and only witness to testify publicly.  Graham reasoned that it would be too great of a risk.

Comey proved why, if any case existed at all, the lone witness to it never should have been allowed to open his mouth in public.
As an attorney of 30 years, with a trial practice, I can tell you Comey, in several ways, hopelessly damaged his credibility. He would be easy prey for an attorney cross-examining him.

When preparing a witness, good attorneys tell their witnesses not to say certain things.  Basically, we want them to stick to the facts and don’t speculate.  We tell them don’t preface an answer with “honestly,” [Comey did] because it implies you may not have been honest with other comments.

We also tell them don’t diminish your own value as a witness by saying things like “I can’t prove it.”  Well, Comey went way past that when he declared that he was “hopelessly biased” with respect to part of his views.

I couldn’t believe this so-called practiced attorney and law enforcement official would make such a public statement. Any attorney worth his salt would easily be able to extend that admission of bias to the rest of Comey’s testimony.  Indeed, in 30 years of practice, I have rarely seen a witness say something so damaging about himself.
Comey didn’t stop there on the issue of his own credibility.  Let us count the ways:
  1. Comey admitted he had an axe to grind and took acts confirming his bias.
He did so when he admitted to taking and leaking government property to influence the investigation and to protect his reputation.  That admission goes beyond bias – it now means Comey was an active participant in shaping the investigation for his own self-interest and committed a crime to do so. Government employees don’t get to take government property when they leave office – his memos are government property.

Further, Comey didn’t do anything of any materiality about Trump’s act until after Trump fired him.  If he really thought Trump did something wrong, then Comey committed a felony by not taking the right action back then.  So why did he wait to act until after he was fired?  Well, Comey admitted he was upset about what Trump said after the firing.  In a real proceeding, the cross-examining attorney would easily establish Comey was now changing his views because of his bias.

Indeed, any cross-examining attorney could destroy Comey based on that possible illegal conduct and those admissions.
It gets worse.

2. The entire case comes down to Comey saying he believed Trump ordered him to stop the Flynn investigation because Comey interpreted Trump’s statement “I hope” to be an “order.” Mind you – Trump never used the word “order” and Comey admits that. Comey just says he took “I hope” to be an order. In other words, the whole case comes down to Comey’s perception.
Later in Comey’s testimony, however, when asked what he could do about something, Comey said “All I can do is hope.”
Yes Mr. Comey, people say “I hope so” without any evil or illegal intent.  Obviously, Comey thinks it’s okay for him colloquially to use the word “hope” - but not Trump. A cross-examining attorney could hammer Comey on his off-hand comment and why Comey gets to hope but Trump can’t.

It still gets worse.
3. Comey believed Trump meant something by his words other than what Trump actually said. However, later in his testimony, Comey said outright that he didn’t know Trump well enough to know how he would “act” in certain circumstances. At another point, he said “projecting [meaning] onto” President Trump was, in effect, not a precise practice.
In other words, on the one hand, Comey claims he knows Trump well enough to say he gave him an “order” in one instance but doesn’t know Trump well enough or shouldn’t speculate as to his meaning, in two other instances.  That is yet another inconsistency that any cross-examining attorney could use against Comey. Bonus point – Comey couldn’t figure out Hillary’s “intent” when it came to the destruction of emails and phones but could with Trump?
It goes on.

4. Comey said that, at one point, he didn’t want to have a face-to-face meeting with Trump alone. He wanted a go between so he could not be pushed too hard by the President again or caught in a compromising position. Yet, Comey later took one-on-one calls with Trump.  So which is it Mr. Comey?  You can or you cannot talk alone with Trump. That is another inconsistency on a significant point.

5.  How many rules or laws did Comey Violate?
Comey’s believability would be on trial, his stunning number of broken laws or violations would be on trial as well.
  • Again, Comey likely committed a felony by not reporting Trump’s alleged crime at the time. The fact that he waited until after his firing more than undermines his current claim that Trump did something wrong.
  • Comey took government property (see above). Is that legal? No. It also violated the confidentiality agreement he signed that outlined possible criminal charges. Further, government employees don’t get to take parting gifts of their choice when they leave office.
  • Even worse. If Comey thought Trump had done something illegal, Comey’s memo about it constituted “evidence” in the case. It was illegal for Comey to physically take evidence in a case for personal use. Ask yourself how many cops take evidence home.
It goes on.
  • Comey was asked if he was the source of any leaks. He answered “no” but later admitted he was.  Not only is that another inconsistency and lying under oath, it is illegal to leak that document.  Also, since Trump reportedly asked Comey to go after the leakers, it now looks that Comey had motive for not doing it.  After all, he was one of the leakers.
  • Comey said under oath he didn’t know about the parameters of the Session recusal on the Russia investigation. Actually, he had that information.  Did he lie?  Looks like it – and that is a crime.
  • Comey also falsely said that he only took notes after his Trump conversations, because he thought Trump would lie, and that he didn’t have to do that after conversations with Bush and Obama. That was false – Comey did the same after Bush.
That last comment no small lie.  At the outset of his testimony Comey made a big point of saying he thought, a man he barely knew, would lie, and that he needed notes for Trump but not the others. Turns out he was lying about his motive.
Few lawyers want as their sole fact witness in a case to be someone with those credentials.
It gets worse.
  1. The Nation’s top cop didn’t know whether an FBI agent was required to report a felony? Really? How credible is that?
  2. Comey’s inconsistent acts. Comey followed the orders of former Attorney General Loretta Lynch to call the Hillary investigation a “matter”– consistent with the language Hillary was using. Keep in mind Lynch does not have near the authority to demand the end of an investigation or the influence that a president has. Comey did not think that was obstruction, but now that he was fired and Trump spoke badly of him, Comey thinks “I hope” amounts to obstruction. Obviously, he did not treat those circumstances equally – for personal reasons.
Finally, another word about the notes.

In the actual investigation of Hillary Clinton, Comey allowed her to be interviewed without a court reporter taking down her words.  As a result, Hillary, who was called a congenital liar by William Safire two decades ago, could never be prosecuted for obstructing justice or lying to the FBI during the investigation because Comey made sure there was no admissible record of her comments – after millions and millions were spent on the investigation. But he needed notes from Trump?  Where are his Hillary notes?

Comey should have been fired for that last act alone.   He should have been fired for bowing to Loretta Lynch to use language the Hillary campaign was using to characterize the FBI investigation of her as a “matter.” Based on his admissions, he should be prosecuted and an investigation undertaken of Lorettta Lynch and Hillary.
As for Trump’s future legal problems over obstruction, Comey fired himself as a witness with his hopelessly biased and hopelessly contradictory actions and statements.

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