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Presidential Hopes

June 8, 2017

The most important thing to keep in mind in watching legislative hearings is that legislators’ questions are not primarily directed to getting at the truth. The primary purposes of legislators’ questions are scoring partisan points and gaining favorable public attention.

One of the first clues is the fact that legislators’ questioning is timed, and the time limits are very short – a limit of five minutes is not unusual. In no other context I know of is investigative questioning subject to that kind of time limit – generally, investigative questioning ends when the questioner has run out of questions, or maybe when the answerer has run out of answers. The tough time limits in legislative hearings arise from the fact that legislators have no more patience for the partisanship and grandstanding of other legislators than any other onlooker has. Legislators agree to shorten their own partisan grandstanding in order to shorten that of their colleagues.

During my career as a middle manager in New York City government, I testified at New York City Council committee hearings several times, and sat with my bosses as they testified any number of times. During all of those years, the City Council was dominated by Democrats, and during most of that time, the mayors were Republicans – Rudy Giuliani and Michael Bloomberg. Since mayors don’t testify at Council hearings, Council members ground their partisan axes on whichever poor schlub happened to be sitting in front of them at the moment.

Whenever I testified at Council hearings during the mayoralty of David Dinkins, a Democrat, my testimony was greeted warmly, and my agency was roundly praised. When I testified before the same Council members on behalf of the same agency during the Giuliani administration, I was treated with a mixture of suspicion and contempt, as if I was simultaneously a devious genius plotting to inflict cruelty on the citizenry and a managerial incompetent too stupid to tie my own shoes. Then Democrat Bill de Blasio became mayor, and my testimony was once again well received.

I learned not to take it personally. I also learned not to take it very seriously. I remember with special fondness testifying as general counsel of the City’s Taxi and Limousine Commission at a hearing held by the Council’s Transportation Committee, chaired by John Liu, whose tenure in the Council I have perhaps generously characterized as  “undistinguished.” Council members were doing their usual low-rent grandstanding act, gratuitously disparaging the management of my agency. At one point during the commotion, I looked down the line of committee members on the dais and realized that by myself, I had more management experience than the entire committee combined. Most of them had never managed anything in their lives, with the arguable exception of an election campaign.

I gave their critique the very fullest measure of consideration that it deserved.

Congressional hearings are different than New York City Council hearings, but not because the questioning is any more directed at getting at the truth. Congressional hearings are just as much about partisanship and personal attention-seeking as are City Council committee hearings. The main difference is that members of Congress are generally more experienced and more capable politicians, and they are generally aided by more experienced and more capable staff, than members of City Council – so their partisanship and grandstanding are better disguised, dressed up nice to look like patriotism.

During today’s Senate Intelligence Committee hearing, Republican senators generally tried to get former FBI Director James Comey to say things that would help Donald Trump, and Democratic senators generally tried to get Comey to say things that would hurt him.

Comey holds an ambiguous position, from a partisan point of view. On the one hand, his handling of the investigation into Hillary Clinton’s use of a private e-mail server makes him something of a hero to Republicans. On the other hand, his handling of the investigation into Russian interference with the 2016 election makes him something of a hero to Democrats.

Democratic senators mostly glossed over the Clinton investigation and spent their allotted time trying to get Comey to make accusations against Trump, and bolstering the credibility of those accusations. Republicans were less able to let go of the Clinton investigation. So we had the spectacle of some Republican senators focused on the Clinton investigation, asking questions designed to bolster Comey’s credibility, while other Republican senators focused on the Russia investigation, asking questions designed to undermine Comey’s credibility.

One of the comic highlights of the hearing was in the questioning by Idaho Republican Senator Jim Risch. Comey had testified that President Trump had told him that he “hoped” that Comey would let go of the portion of the Russia investigation that pertains to former National Security Advisor Michael Flynn. “I hope” you will drop the investigation, Senator Risch insisted, was not a “direction” to drop the investigation. Comey conceded only that it was not a “direction” in the literal meaning of the words, but he stuck to his position that it was meant as a direction.

It made me think of Lyndon Johnson, probably the most accomplished arm-twister ever to sit in the Oval Office. Telling someone what he “hoped” for is exactly the kind of verbal formulation that Johnson would have used, but no one on the receiving end of those hopes would ever have doubted that Johnson’s “hope” was a demand and an expectation.

The hearing ended sadly, with embarrassing questioning by Arizona Republican Senator John McCain. He mangled almost every sentence he spoke, for instance twice referring to Comey as the president. The substance of his questioning was equally mangled.

McCain tried to create an equivalency between the Clinton e-mail investigation and the Russian investigation. He insisted that Comey had applied a “double standard” by announcing publicly that no charges would be brought against Clinton but refusing to state publicly that no charges would be brought against Trump. Comey responded, rather obviously, that the Clinton announcement was appropriate because it was made after the investigation had been concluded, whereas the Russia investigation has not been concluded so no such announcement would be appropriate.

McCain persisted, essentially accusing Comey of prematurely closing the Clinton investigation. If Russia interfered with the election, then both candidates should be under investigation, not just one of them. The fact that the Clinton investigation had to do with her tenure as secretary of state, which ended four years before the 2016 election, and the fact that the Clinton campaign was the victim of both known successful components of the Russian election interference – the e-mail hacking and the disinformation – were utterly lost on McCain.

McCain’s bizarre reasoning, combined with his uncharacteristically garbled articulation of his questions, made me wonder if he was having a stroke. His bewildered expression when the committee chair gently told him his time had expired – after McCain had ignored repeated gaveling by the chair – only reinforced the impression. The only thing that dissuaded me was that McCain wasn’t actually slurring his words. Still, it was clear that something is seriously wrong.

More than one senator has remained in office after his productive career was over, and it was sad to see this indication that John McCain may be joining that club.

I said that legislators’ questioning is not primarily directed to getting at the truth, but the hearing as a whole is. As a former litigator and sometime trial attorney, I find a close resemblance between trials and legislative hearings. Both are adversary proceedings, the prosecution and defense being the partisans of the courtroom; each side presents facts to support its case, and the jury (or the public) decides.

What impressed me most today about James Comey was how ordinary and familiar his situation seemed to me. Comey is a serious professional who was dealing with hard situations as best he could. He was open about his failures and imperfections; a stronger person, he acknowledged, might have told Trump sooner and more firmly that it was inappropriate for a president and an FBI director to discuss a pending investigation into the president’s campaign. Whatever Comey’s mistakes, they weren’t improperly motivated. Comey is not, despite the ravings of our Tweeter-in-Chief, a self-serving grandstander.

I disagreed with Comey’s decision last July to publicly explain the FBI’s recommendation against prosecution of former Secretary of State Clinton, and I still disagree with it. Once the decision had been made not to prosecute, no further public statement should have been made, and certainly not Comey’s deeply condemnatory accusations of non-criminal carelessness in the handling of e-mails.

Comey said today that the decision not to prosecute Clinton would not have been credible without a public explanation, given the famously boneheaded airport tarmac meeting between Bill Clinton and then-Attorney General Loretta Lynch. But Lynch recused herself from the investigation after that meeting, and Comey was in a position to know that she had honored that recusal. Anti-Clinton partisans would have accused Comey of a whitewash with or without the tarry on the tarmac, and if that brought some heat onto the FBI and the Department of Justice, taking that heat is just part of the job.

But I have no doubt that Comey’s decision to talk about the Clinton investigation was a well-intentioned and well-considered decision made in good faith. In fact, I think pretty much everything Comey did over the entire course of the Clinton and Trump investigations has been the action of a serious professional trying his best to get things right.

It has been established fact that Donald Trump is a liar at least since Trump told a television interviewer that his supposed investigators were finding evidence in Hawaii that Barack Obama was not born there. Today we heard that fact stated under oath by a former director of the Federal Bureau of Investigation, who swore that the sitting president of the United States is a liar.


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