Comey Memos and Trump “Tapes”

Recently fired FBI director James Comey has revealed that he took extensive notes about his one-on-one meetings with the president, as they made him uneasy. It turns out those misgivings were well founded. According to a source close to Comey, at least one memo describes how President Trump asked Director Comey outright to drop the Flynn investigation. The White House reply to this report was not as vociferous as is Trump’s usual style, only providing a brief written denial, including a statement that Comey’s account is “not a truthful or accurate portrayal of the conversation between the president and Mr. Comey.” So the credibility (or more specifically the lack thereof) of the president must now be weighed against the credibility of the former Director of the FBI’s contemporaneous records, which are typically considered to have nearly the weight of a recording.

Comey’s memos indicate a disturbing pattern of the president attempting to personally interfere in the investigation into collusion between the Trump campaign and the Russian-directed hacking of the 2016 election.  One memo reportedly describes how Donald Trump invited Director Comey to a dinner, where Trump asked whether he was under investigation. Comey was reportedly noncommittal, which the president apparently took as a denial of any investigation. Later, after a meeting with several advisers, Trump held Comey back, and asked “I hope you can see your way clear to letting this go, to letting Flynn go.” Again, Comey was noncommittal.

The reason these memos exist is because as a lawyer and veteran law enforcement official, Comey makes a habit of taking notes of conversations. This behavior is consistent with what we know about Comey; however, the FBI Director specifically became more careful after a dinner he had with President Trump where the president asked for a loyalty oath. Comey reiterated his oath to the Constitution and the rule of law, and also an oath of honesty to the president. This apparently did not satisfy President Trump, and whether because of this, Comey’s refusal to curtail the investigation into Michael Flynn, or some combination, Trump ultimately fired the FBI Director on May 9th in a shocking move that triggered the start of a cavalcade of scandals and revelations.

The Senate Intelligence Committee had invited Comey to testify in a closed hearing about his firing and related matters, but Comey refused, insisting instead on an open hearing. Presumably Comey preferred a public forum so that his testimony could not be warped and leaked. After the existence of the memos was revealed, calls to invite Comey to testify in an open hearing increased, to the point where even senior and leadership Republicans demanded it, including Lindsey Graham:

As the result of the pressure and outcry, the Senate Intelligence Committee finally offered (and Comey accepted) an invitation to an open hearing, where the former FBI director  will presumably reveal more about his personal conversations with President Trump. It will be scheduled after the Memorial Day recess. Torchlight will once again cover this event live from SH-216, the Senate Hearing Room.

As opposed to Comey’s meticulous and considerate note taking, Trump also claimed he had records of the conversation in a particularly Trumpian fashion: a blustering, threatening tweet completely ignorant of context, history, or the law.

It is legal to tape conversations in the White House, assuming one of the parties consents to the recording. Several previous presidents have famously done so, including Kennedy, Johnson, and (of course) Nixon. However, if such records exist, it is illegal to delete any of them, or any part of them, thanks to record keeping laws put in place after Watergate. In fact, one of Nixon’s last and largest scandals had to do with a White House tape, and specifically an 18-and-a-half-minute gap in which the Watergate break in was presumably discussed. This gap is what led to the Presidential Records Act of 1978. It was also the last straw that would have led to Nixon’s impeachment, if he had not instead chosen to resign. Trump has already found himself in controversial waters because of his behavior with regards to recordkeeping. His tweets are technically part of the body of work that is described under the Presidential Records Act, and erasing them, even to correct spelling, is illegal. He has been warned about this in the past, and if the tape exists and he erases it, he will continue to relive the scandals of Nixon on an accelerated timescale.

One final revelation from the Comey memos so far does not seem to be the focus of most reporting, but is no less chilling than the more discussed aspects. During one meeting, Trump apparently advised Comey that he should start jailing journalists who write stories that publish classified information. In light of Trump’s own apparent leaking of classified intelligence to Russian leaders in an Oval Office meeting, this recommendation is as hypocritical as it is alarming. If this material is typical of the Comey memos, the former Director’s testimony before Congress could reveal a multitude of embarrassing, worrisome, or potentially impeachable behavior on the part of the president.