The dust has settled. Most Americans who have not been living under a rock have formed an opinion one way or another about former FBI Director, James Comey. These opinions may result from President Trump’s vacillating accounts about what compelled him to fire Comey. Or, Comey’s congressional testimony. Or, perhaps his many highly-publicized TV interviews.
Strangely, though, most citizens on both sides of the aisle – those who admire or despise Comey – likely believe Comey’s version of the facts. Meaning, even if they conclude that Trump was fully justified in firing Comey, they also still believe Comey’s account of his conversations with Trump. Why? Let’s remember just some of Trump’s frankly odd statements – Trump fired Comey because he didn’t treat Hillary Clinton fairly and thus damaged the FBI’s credibility; Trump’s tweet that Comey “better hope there are no ‘tapes’ of our conversations before he starts leaking to the press!”; and – only after Congress demanded those tapes – the incomprehensible follow up tweet: “I have no idea whether there are ‘tapes’ or recordings … but I did not make, and do not have, any such recordings.”
It seems, even if people find Comey a choirboy or perhaps even sanctimonious, many also believe in their hearts that Trump demanded a pledge of loyalty and, with that pledge in play, for Comey to round file the FBI’s investigation into Michael Flynn and the Russian “collusion” investigation, quickly and quietly.
So, if I’m right that people (more important here, decision makers) will believe in Comey’s credibility no matter if they also believe he sorely wounded Hillary’s chances of defeating Trump, or instead that he is the bete noire of the president, undercutting him at every turn, why in the world would a prosecutor who would need to rely on Comey to help establish an “obstruction of justice” charge against the president be troubled by Comey’s book that only underscores his side of the story? If a witness, namely Comey, is generally believed to be the credible one in a swearing contest between two protagonists – as I suspect is the case – who cares that he wrote a book when it provides no obvious inconsistencies with his many memos, testimony, or statements of the facts? Meaning, the credibility of his statements remain intact,
particularly given what a gifted civil servant he proved himself to be.
The truth is that jurors (or even legislators) who may be called upon to judge the veracity of witnesses measure that veracity against many factors. And the reality is that whether factfinders “like” the witness often comes into play in deciding cases (even though prosecutors frequently rely successfully on the testimony of turnaround “bad guys” with horrible backgrounds).
So, the decision-makers may well look at various characteristics of the witness. Does the witness come across as vindictive? Is he partisan? Superior? Self-absorbed? Does he try to present himself as the hero in every story? Is he motivated by avarice, or fame? Does he go out of his way to not only disclose the facts, but also to “put down” the other guy? And so, if he writes a book that discusses the other protagonist, the author/witness will likely also disclose traits about himself that would not come to light if the decision-makers had only his “memos to file” to consider. As Spinoza noted more than 400 years ago: “What Paul says about Peter tells us more about Paul than about Peter.”
So let’s look at Comey’s book, particularly as it relates to the president. To be sure, the book is extremely well written, often outright inspiring. Comey is at the vortex of critical moments in recent history – as United States Attorney prosecuting Martha Stewart; as Deputy Attorney General dealing with a post-9/11 world; at the bedside of Attorney General Ashcroft when the Administration tried to ram a renewal of a policy of government-authorized torture past a bedridden Ashcroft; at the helm of the FBI when the Justice Department, basically enabled him to decide whether to criminally charge Hillary Clinton. And he tells those stories calmly and with resolve.
But virtually none of the more than 600,000 (and growing) people who bought Comey’s Number 1 best-seller did so for those stories. They bought it to see what he would say about an embattled president who had the gall, or was it strength, to fire the FBI Director i.e., the author. That decision was likely the one which led to the appointment of Robert Mueller as Special Counsel – basically to decide and act if “there is a there there.”
What would Comey say about that? Would he be a laconic Joe Friday (“just the facts, ma’am”), or would he seek to take down the president in a best-selling assassination – needing to accomplish it in print, especially if the president were to survive Mueller’s investigation? Would he, in his book, pony up the “venereal material”, as an insightful criminal lawyer friend of mine would call it – and disclose the dirty, embarrassing, secrets about the president that would make him “pay” for having unceremoniously fired the Director who wouldn’t kowtow to the president’s desire that he silently ditch the FBI’s investigation.
Comey’s telling is not “just the facts”. Whether you believe his asides to be compelling, or merely gratuitous, they are fodder for any litigating lawyer who might be called upon to challenge his account of events or, more importantly, his world view of whether Trump deserves to remain as president. He frequently seems to make Trump look unworthy of his office, and certainly when compared to Presidents Bush and Obama, both of whom Comey served. Is there reason – other than perhaps the sale of books – for him to have opined on the size of the president’s hands, the orange tinge of his skin or that the president’s “impressively coiffed” hair appears to be “all his” (“I remember wondering how long it must take him in the morning to get that done.”) In his telling, Comey infers that the president, while admiring a handwritten White House menu, doesn’t actually know what a calligrapher is. Does reporting that Trump hung
“gold” curtains in place of their predecessors in the Oval somehow help us understand the meaning of “a higher loyalty,” or more likely help sell books (even though possibly at the urging of Comey’s editor)?
Throughout, Comey addresses loyalty, and Trump’s apparent failure to understand what it actually entails and to whom it is owed. Indeed, Comey also seems to want to make the point that the president and his team are structured like the Mafia hierarchy Comey once prosecuted. Mightn’t some – perhaps many — see the Cosa Nostra references as unnecessary?
Comey also reports every time the president brought up (and denied) the Steele Dossier’s assertion that he watched hookers urinate on one another during a night he spent at a Russian hotel room. He seizes on the president’s “apparent play for sympathy” in telling Comey that the episode has been very painful to Mrs. Trump, and derides the president’s statement that it bothered him if there was even a “one percent chance” Melania thought it was true, writing: “In what kind of marriage, to what kind of man, does a spouse conclude there is only a 99 percent chance her husband didn’t do that?”
If one were to view “A Higher Loyalty” simply as a book or a biography, it is a good, maybe a great, one. Comey’s style is compelling, fast-paced and he skillfully weaves the facts with his impressions and thoughts. But – and I say this as someone who is no fan of the president – an able trial lawyer could make critical parts of the book seem gratuitous, petty even. And as a juror or legislator, these seemingly unnecessary swipes at Trump’s character and manner may make Comey less appealing where his appeal-ability may be what really counts.
It is a no brainer that no prosecutor would want his star witness, before he testifies, to have written a book or been interviewed addressing the precise subject of the witness’s potentially crucial testimony. And, there’s no question that Comey, having served as United States Attorney and Deputy Attorney General, well knew that, but nonetheless chose to publish his book when he did — although his supporters would likely argue that he felt the urgent need to get his story out promptly given his sincerely held belief that America was being undermined by his protagonist.
Yes, I presume the FBI vetted this book to be sure that he wasn’t disclosing classified information or state secrets. But the decision to publish his book while Mueller’s investigation proceeds at a critical phase was a decision made by Comey alone.
Why would Comey have made that decision? And does anyone really think Bob Mueller, perhaps as fine and honorable prosecutor as America has ever seen, would have wanted him to?
Joel Cohen is a former state and federal prosecutor, and practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. He is an adjunct professor at Fordham Law School, regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of Broken Scales: Reflections on Injustice (ABA Publ. 2017). Dale J. Degenshein, special counsel at Stroock, assisted in preparing this article.
[Image via Saul Loeb/AFP/Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.
