Hiding in plain sight in former FBI Director James Comey’s testimony Thursday before the Senate Intelligence Committee is a potentially major new avenue for special counsel Robert Mueller’s investigation of Russia-related crimes.
It’s the possibility that President Donald Trump committed a federal crime by lying to Comey about his connections to Russia and activities on his 2013 visit there.
It’s a crime to lie to a representative of the federal government. Thus, Mueller can now investigate the possibility of a criminal charge against Trump if he had any connection to Russia.
And Trump’s denial, as reported by Comey, will also enable Mueller to do what the FBI apparently hasn’t: investigate the questionable dossier claims that Trump was compromised by Russian intelligence on the basis of sexual escapades in Moscow.
The key to this analysis is one completely new piece of information. According to Comey’s testimony, Trump told him on March 30 that Trump said “he had nothing to do with Russia” and “had not been involved with hookers in Russia.”
These were responses to claims raised in a dossier compiled by former British spy Christopher Steele at the behest of Trump political foes — claims that have not been substantiated.
This insistence by Trump is noteworthy, especially because Comey had already told Trump more than three months previously that the FBI had not opened a counterintelligence investigation of him on the basis of the dossier.
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Trump may simply have wanted to make sure that Comey didn’t believe the allegations. Or he may have wanted to emphasize his repeated request that Comey somehow announce that Trump wasn’t under FBI investigation.
Regardless, Trump potentially put himself in legal jeopardy by making the statement unbidden by Comey. Under 18 U.S. Code Section 1001, it’s a federal crime to make “any materially false, fictitious, or fraudulent statement or representation” regarding “any matter within the jurisdiction” of the U.S. government.
If Trump was lying about having nothing to do with Russia — or if he was lying about the charge that Russian intelligence had gathered compromising material about him because of a dalliance with Russian prostitute — that would constitute a federal crime.
To be extremely clear, I’m not saying I have any reason to believe Trump lied to Comey. I don’t.
But the statements alone, coupled with the dossier that contradicts them, provide sufficient reason for Mueller to extend his investigation to consider Trump’s own Russia related conduct — including the information discussed in the dossier.
That matters for two reasons. First, according to Comey’s testimony, it would seem that the FBI itself never looked into the veracity of the dossier’s claims about Trump’s trip. If it had, that presumably would have required opening a counterintelligence investigation to see whether Trump was compromised. And Comey assured Trump that had not happened.
Second, without the statements that Comey attributes to Trump, it’s entirely possible that Mueller would not have considered himself to have the jurisdiction to investigate Trump’s activities in Russia.
Now, however, Trump’s denial of any Russia connection and of the dossier’s sexual allegations exists in direct juxtaposition with his statements to Comey that the Russia investigation was casting a shadow over his presidency. That’s an immediate connection between the statements and the inquiry.
What’s more, the denials to Comey are also now connected to Trump’s efforts to convince Comey to drop the investigation of former National Security Adviser Michael Flynn — another topic that belongs within the ambit of Mueller’s inquiry.
Good, sound investigative practice would now quite reasonably focus on whether Trump’s statements were false. That’s because false statements to Comey in this context would count as a crime.
In contrast, Trump’s public statements denying any connection to Russia and disparaging the sexual allegations aren’t criminal even if they are untrue.
It’s perfectly legal to lie to the public. Indeed, a president or presidential candidate’s false statements to the electorate are probably protected by the First Amendment. (God help us.)
In contrast, a statement that amounts to a denial of potentially wrongful conduct made to the nation’s chief law enforcement official, who was overseeing an investigation of related matters, would certainly count as a Section 1001 violation.
So don’t be misled by the suggestion that there is little new in Comey’s prepared testimony relative to the previously existing leaks. The outline was already known, but not the details.
And details matter, especially in criminal investigations like the one Mueller is now conducting.
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University.