Blog No. 133. The Committee, Trump and Comey: The Unasked Question, Other Puzzlements and Waiting For More Shoes To Drop

It was probably inevitable that the hearing before the House Intelligence Committee would leave many, indeed most, questions unanswered. Indeed, far too much time was taken up asking questions “for the record” that the interrogators knew would not be addressed in an open hearing. But the most curious aspect of the proceeding was a question that was not even asked.

That unasked question concerned President Trump’s claim that he was the subject of some unspecified form of electronic surveillance. As discussed in the last blog, Trump’s several tweets on March 4 referred to wiretapping — in quotes in two tweets, and not in quotes in two tweets. Trump later followed the lead of his Press Secretary, Sean Spicer, in claiming that his reference to wiretapping in quotes referred to surveillance other than wiretapping. (Both Spicer and Trump simply ignored the tweets in which Trump did not put wiretapping in quotes.) At the opening of the Monday hearing, Chairman Devin Nunes dutifully preserved the distinction: “We know there was not a physical wiretap of Trump Tower. However, it’s still possible that other surveillance activities were used against President Trump and his associates.” Yet it was a distinction that was left unexplored in the ensuing hearing.

When it was FBI Director James Comey’s turn to testify, he stated that:

With respect to the president’s tweets about alleged wiretapping directed at him by the prior administration, I have no information that supports those tweets and we have looked carefully inside the FBI. The Department of Justice has asked me to share with you that the answer is the same for the Department of Justice and all its components. The department has no information that supports those tweets.

This statement was proclaimed by the media as a direct rebuke to the President, and so it was. But it was incomplete and, given the concession in Nunes’s opening statement, almost anti-climactic.

Although Comey steadfastly declined to discuss whether various individuals, (notably Michael Flynn, Paul Manafort, Carter Page and Roger Stone), were under any kind of investigation or surveillance, his direct statement about Trump opened the door to an obvious follow-up question. For reasons that are unclear, however, no member of the Committee, Republican or Democrat, asked that question: “Director Comey, President Trump has interpreted his tweet to refer not only to wiretapping but, by putting wiretapping in quotes, to refer to other forms of surveillance. Can you state whether Mr. Trump was under any form of government surveillance other than wiretapping?” Possibly Republicans and Democrats were reluctant to ask a question without knowing the answer they would get. Republicans might have been reluctant to get an answer, denying that any form of surveillance had been conducted on Trump, as that would have definitively closed off the Spicer/Trump loophole. Democrats, on the other hand, might have been concerned that if Trump declined to answer with respect to other forms of surveillance it would lend credibility to his unsupported claim. Either way, however, it was a question that begged to be asked.

Other puzzlements at the hearing concerned the emphasis given by Republicans to various leaks attributed in the press to anonymous officials in the intelligence community. Various leaks had involved the reported investigation of Paul Manafort, Carter Page and Roger Stone, but the most notable leak concerned a conversation between General Michael Flynn and Soviet Ambassador Sergey Kislyak. That conversation had covered the subject of sanctions against Russia, just as new sanctions were being imposed by the Obama administration. The leaked version of the conversation demonstrated that Flynn had lied to Vice President Pence and others in the White House, in having expressly denied discussing the sanctions with Kislyak.  As a result, the public disclosure forced Trump to ask for Flynn’s resignation as National Security Adviser. Thereafter, however, Trump directed his displeasure not at Flynn but at the leak, even claiming in a Monday tweet that it should be the focus of the Committee’s investigation:

The real story that Congress, the FBI and all others should be looking into is the leaking of Classified information. Must find leaker now!

Many of the Republicans on the Committee, and most notably Congressman Trey Gowdy, appeared to take Trump at his word. Gowdy and others showed far more interest in leaks of classified information than anything else. Such leaks, and the Flynn leak in particular, are a matter of legitimate concern and merit investigation, but in this case they serve primarily as a distraction from the main event.  As a threat to our democracy, the leaks hardly rival the Russian interference in the 2016 election and the possibility that Russian efforts were taken in collusion or co-ordination with the Trump campaign. As Comey noted in his testimony, leaks have troubled past Presidents, including Washington and Lincoln. And as an alumnus of the Nixon administration and the Watergate investigation, I have a fairly keen recollection of Presidential outrage over national security leaks as well as the mistakes to which such outrage can lead. (For a remorseful account by the one-time leader of the notorious Nixon “Plumbers,” see Egil “Bud” Krogh’s book, Integrity.) In short, leaks, including leaks that arguably endanger national security, are an enduring fact of life in Washington.

In the case of the Flynn leak, it is surprising that no one on the Committee pointed out that the leak occurred two weeks after President Trump had been informed of the Flynn conversation and had failed to take any action. It is reasonable to surmise that, but for the leaks and public exposure, Flynn would still be in place as Trump’s National Security Adviser despite his clear misconduct. In that situation, the leakers of the Flynn conversation had faced a serious dilemma. Should they remain silent, supressing grave and understandable concerns over Flynn remaining in his office, or should they leak to the media and risk discovery and possible criminal prosecution?

Possibly there was a third way, referred to only briefly, and in theoretical terms, in a colloquy between Comey and Congressman Chris Stewart:

STEWART. And I would ask you then if someone in intelligence community has some concerns, if they feel like there’s been an overreach or the government is doing something they shouldn’t be doing, any government official, is there a process they can go to where they could make that known and express their concerns?

COMEY: Yes. All of us, the intelligence community have robust whistleblower provisions that we educate our folks on and part of the whistleblower track is they can bring information to the appropriate committee of Congress.

Would the “whistleblower track,” including a possible direct appeal to Congressional committees, have been a feasible alternative under the circumstances in this case? Perhaps, but perhaps not. We may learn more as matters develop further. In any case, the issue of the leaks should not be permitted to becloud the investigation of the Russian activities and whether they were connected in any way to the Trump campaign.

The most effective mode of investigation would be an independent commission, a select committee in Congress or a Special Counsel appointed by the Department of Justice. None of those vehicles are likely to appear unless and until further shoes drop. On the other hand, Trump and his coterie seem to have an inventory of shoes to rival Imelda Marcos’s closet on its best day.

Correction: As initially posted, the blog misstated the first name of the Chairman of the House Intelligence Committee, Devin Nunes. I regret the error.