James Comey may not have added much new
detail in testimony on Thursday about his one-
to-one meetings with Donald Trump but he did
add something: he set the scene, and law
professors say that could be a missing piece in
an obstruction of justice case against the
president.
Mr Comey, the former director of the FBI, gave
three hours of evidence in front of the Senate
Intelligence Committee, describing personally for
the first time the series of exchanges with the
president that led to his sacking last month.
In one of those exchanges, the president said he
"hoped" Mr Comey could "find his way" to
dropping an investigation into then-national
security adviser, Michael Flynn, a Trump ally who
was under scrutiny over his ties to Russia.
We knew that already - Mr Comey made details
of the meeting public several weeks ago - and
Committee Republicans sought on Thursday to
paint it as an innocent exchange: "I hope" was
not an instruction, they said.
The former FBI director declined to offer his own
opinion at the hearing on whether the president
was attempting to obstruct justice, saying only
that he found their exchange "very disturbing".
Whether the president had broken the law would
be a matter for special counsel investigator
Robert Mueller to decide, he said.
So what's changed? Alex Whiting, a Harvard Law
professor and former federal prosecutor, said the
oral testimony gave new and legally significant
insight into how Mr Comey interpreted the
president's words in the moment.
"The critical aspect of an obstruction case is
assessing the intent of the speaker and whether
it was corrupt," Mr Whiting said. "People
communicate with much more than words, and
some of the best evidence for what a speaker
meant can be how the speaker was understood
at the time."
How the drama unfolded
What questions remain?
Trump v Comey: Who said what
Mr Comey's testified on Thursday that he clearly
understood Mr Trump to be pushing him to drop
the inquiry. We also heard for the first time that
the president cleared the room before making
the remarks, removing even Mr Comey's boss,
the attorney general.
Added to that, Mr Comey, who has a long history
of high-profile legal positions and who took
meticulous notes directly after his meetings with
the president, was a "dream witness", Mr Whiting
said. "I think if you take together his written and
oral testimony together, he has now made a
prima facie case of obstruction of justice.
"Whether it's a case that should be prosecuted,
or whether it merits impeachment, those are
separate questions, but the elements are now
there for obstruction. There was a corrupt intent
to impede justice. I think you could charge this
case."
Eric Posner, a law professor at the University of
Chicago, also said that Mr Comey's oral
testimony had changed the legal picture.
"Comey may not have added specific pieces of
information, but the way he presented himself
and consistency of his account, and the
coherency of the account, all of these things are
important," he said.
"In his oral testimony, he made it clearer that he
believed Trump was trying to obstruct justice. He
said that when Trump used the word hope, he
understood that to be a command of some sort,
and that strengthens the case for obstruction.
"It was a borderline case before, now it is
somewhat stronger."
But the case remains essentially circumstantial,
said Michael Gerhardt, a law professor at
University of North Carolina who testified at the
Clinton impeachment hearings.
"Everybody is parsing the words of course, but I
don't know that Comey's testimony strengthens
or weakens an obstruction case," he said. The
meetings described by Mr Comey were however
"clearly inappropriate", he said. "This is simply
not how Americans want a president to conduct
himself."
The testimony would serve to strengthen Mr
Comey's credibility with congress, Mr Gerhardt
said, possibly at the expense of the president.
"Comey put his credibility on the line today and
he did it in a very public way," he said. "Now it's
a credibility contest between him and the
president, and I think it's safe to say Comey is
winning that contest."
That could prove crucial if legal action were ever
taken over this affair. Were the president to face
impeachment or criminal proceedings, the former
FBI director would "without doubt" be a central
witness, Mr Whiting said, and his credibility
against Mr Trump's would be key to the case.
Both those scenarios remain unlikely however, at
least for the meantime. It is effectively
impossible to bring criminal charges against a
sitting president - the case would have to be
brought by the executive branch, of which Mr
Trump is the boss.
As for impeachment, there is political resonance
to obstruction of justice charges - it factored in
the impeachment of Bill Clinton and the
resignation of Richard Nixon - but it is still highly
unlikely. The Republican party controls both
houses of congress, and a special counsel
investigation into the Russia affair is only in its
infancy.
So Mr Comey's testimony will not trigger legal
proceedings any time soon, but it does have the
potential to damage the president's political
standing and resonate with moderate voters, Mr
Posner said.
"Obstruction of justice is clearly on the minds of
a lot of people and I think it damages the
president politically," he said. "He continues to
have supporters of course. But for many people
in the middle, their opinion of the president will
decline and their reservations will strengthen."
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