In the days since James Comey’s testimony, as Republicans have picked through the fired FBI director’s account for any possible grounds for defense, the element they have seized upon most enthusiastically is Comey’s claim that he informed President Trump that he was not personally under investigation. “Now we know, thanks to former FBI director James Comey’s testimony last week, that President Trump was not a target of the investigation into Russian meddling in the 2016 election,” writes former Reagan official Peter Wallison in the Wall Street Journal. “That’s by far the most important thing Mr. Comey said.” Republican lobbyist Ed Rogers, anti-anti-Trump conservative Dan McLaughlin, among others, have echoed this line. McLaughlin even insists that Trump is owed an apology by those who implied he is under investigation: “In light of Comey’s repeated confirmation that the FBI was never investigating Trump during his tenure at the FBI, and that he had privately briefed both Trump and Congress to that effect, a whole lot of people — starting with Chuck Schumer and Elizabeth Warren — owe President Trump an apology.”
It is true that Comey told Trump that the FBI’s counterintelligence investigation was not targeting him personally at the time. But many portions of Comey’s testimony also indicated just how precarious that assurance was. Comey explained that his leadership team did not agree on whether they could even give Trump this assurance at all. Here is how Comey replied when asked if the decision was unanimous:
Wasn’t unanimous. One of the members of the leadership team had a view you that although it was technically true we did not have a counter-intelligence file case open on then President-elect Trump. His concern was because we’re looking at the potential, again, that’s the subject of the investigation, coordination between the campaign and Russia, because it was President Trump, President-elect Trump’s campaign, this person’s view was inevitably his behavior, his conduct will fall within the scope of that work. And so he was reluctant to make the statement. I disagreed. I thought it was fair to say what was literally true.
And then later he affirmed that this internal disagreement persisted:
With the FBI leadership team? Sure. And the leader had that view that didn’t change. His view was still that it was probably although literally true, his concern was it could be misleading, because the nature of the investigation was such that it might well touch, obviously it would touch, the campaign, and the person that headed the campaign would be the candidate, and so that was his view throughout.
Comey used the word “technically” once, and “literally” twice, to describe the non-investigation of Trump. And he explained the reason for these caveats: The FBI was investigating the Trump campaign. Since Trump ran the Trump campaign, it seemed highly plausible that the investigation could and would eventually lead to Trump himself.
Later, in the hearing, Comey explained that his assurance to Trump was mostly related to the context of the Christopher Steele dossier, and Comey’s desire to let Trump know that Comey was not using it to blackmail the president:
I was briefing him about salacious and unverified material. It was in a context of that that he had a strong and defensive reaction about that not being true. My reading of it was it was important for me to assure him we were not person investigating him. So the context then was actually narrower, focused on what I just talked to him about. It was very important because it was, first, true, and second, I was worried very much about being in kind of a J. Edgar Hoover-type situation. I didn’t want him thinking I was briefing him on this to sort of hang it over him in some way. I was briefing him on it because, because we had been told by the media it was about to launch. We didn’t want to be keeping that from him. He needed to know this was being said. I was very keen not to leave him with an impression that the bureau was trying to do something to him. So that’s the context in which I said, sir, we’re not personally investigating you.
Comey, incidentally, did not say the Steele dossier was categorically false; indeed, given two questions about the dossier by Republican Senator Richard Burr, Comey insisted he could not answer them in an open setting.
The most telling exchange came when Republican Senator Tom Cotton asked Comey whether Trump personally colluded with Russia. This is a different question than whether the FBI was investigating Trump personally at the time the two spoke, and it produced a very different answer:
Cotton: Do you think Donald Trump colluded with Russia?
Comey: That’s a question I don’t think I should answer in an opening setting. As I said, when I left, we did not have an investigation focused on President Trump. But that’s a question that will be answered by the investigation, I think.
It is possible that the investigation will yield no evidence of criminality either by Trump nor the many Trump associates who have misled the Senate or the FBI about their ties to Russia. It is also possible that Trump’s deep, persistent interest in sparing his fired adviser Michael Flynn was motivated entirely by an uncharacteristic personal loyalty, rather than a fear that Flynn might “have a story to tell,” as his lawyer put it, that implicates Trump. Trump’s defenders have treated these potential outcomes as certainties. But maybe they should wait before proclaiming the innocence of a man who does not seem to be acting especially innocent.