科米的证词有多严重？超乎想像

成立没多久的特朗普政府遇到的麻烦已经很多了。上周四又多了一个。前联邦调查局（FBI）局长詹姆斯•科米在美国参议院特别委员会的证词简直令人震惊。倒不是因为他的证词揭露了总统犯下的罪行，最让人担心的是人们看到一位撒谎成性，完全不管公众利益的总统，这位总统要么完全无知，要么故意破坏极其重要的规矩，已无法保证联邦法律的执行不受政治影响。

当然了，今年5月是总统特朗普宣布解雇了科米。一开始白宫称解雇原因是，去年夏天和秋天科米对希拉里•克林顿邮件门的调查存在争议。但很快特朗普就公开承认，解雇科米的原因实际上是不满意FBI调查俄罗斯干涉大选，以及调查特朗普竞选与俄罗斯可能串通的情况。

首先要指出，科米一直是共和党人。有报道称他曾在2008年和2012年大选中赞助麦凯恩和罗姆尼。之前乔治•W•布什政府中他曾担任高位。担任FBI局长后，科米决定退出共和党，主要因为该职位要求不参与政治。2016年大选期间，科米对希拉里邮件门事件的处理失当，左翼右翼势力都在指责。但所有人都知道科米个性正直且非常诚实，而且是尽职尽责的公务人员。

所以上周四科米有关特朗普（以及其他事件）的证词还是相当可信的。没人会质疑他说谎。他都指出哪些事实呢？

• 从一开始科米就不信任特朗普和他身边的人，所以谈话都同时记录下来，就怕之后特朗普和团队事后不认账。

• 科米表示，特朗普声称FBI秩序混乱，而且FBI探员已经不信任科米，这是公然对美国人民说谎。（本条以及其他引语和谈话文本都是本人整理）

• 一次单独与特朗普会见时，特朗普要求科米宣誓个人效忠。科米表示反对。（科米在证言中表示，后来特朗普声称科米请求这次会面，目的是保住工作，又是个谎言。是特朗普要求见面的，而且之前特朗普已经告诉科米希望他留任FBI局长。）

• 因新闻报道称国家安全顾问迈克尔•弗林在总统就职前曾与俄罗斯大使沟通，后来又对此事撒谎因而遭解雇。第二天特朗普让所有人离开总统办公室，单独跟科米谈话，希望FBI停止调查弗林。

• 在当时的环境下，科米认为这是总统下达的“命令”。

• 当然了，科米并未停止调查，更高层的调查也继续进行。

• 后来特朗普给科米打了两次电话，抱怨跟俄罗斯有关的调查导致他的总统生涯和个人都“蒙上阴影”，要求科米公开澄清特朗普个人并未接受调查，以“驱散阴影”。

• 但与俄罗斯相关的调查，也就是特朗普口中的阴影仍在继续。所以特朗普解雇了科米。为什么？确实有人问到。科米（我整理了他的讲话）：“我相信总统说的，我被解雇是因为俄罗斯相关调查。”

• 总统的行为令科米一再感觉“吃惊”、“不安”、“担心”并且“震惊”。

总统的行为实在太多出格之处，令人很不安，让人一时之间都不知从哪说起。

听说特朗普经常撒谎倒是不一定吃惊。但如果一位非常可信的公众人物板上钉钉地确证总统经常撒谎，这事还是挺大的。而且这些不是普通人的小谎，也不是关于私人事务或是犯个小错。这可是身为总统在公众事务上撒谎。

国会之所以决定FBI局长任期只有十年，就是因为上世纪70年代水门事件后，国会认为有必要避免白宫干涉或指挥FBI的事务。不管是国会还是美国人民都坚定认为联邦法律的执行应排除政治因素保持独立。特朗普非常蔑视这项规定，简直无法无天。

特朗普声称科米为其辩护并不正确。科米确实说过特朗普“本人”没有接受FBI调查，而且科米跟特朗普交流过这点。但科米证词中也提到特朗普的行为进入FBI调查“范围”。此外，我们从科米和其他来源才得知，特朗普的竞选活动、前竞选负责人、其他竞选团队成员、特朗普的生意，竞选活动和政府中其他跟特朗普相关人士——包括特朗普的女婿和前国家安全顾问都在接受FBI和联邦检察官调查。

就特朗普的行为是否构成妨碍司法公正，科米并未置评。他将这一问题留给最近就任特别顾问负责调查特朗普与俄罗斯关系的罗伯特•穆勒。不管最后穆勒会不会提起控告，至少现在大家都知道法律上会支持。

但我们也要记住别只盯着犯罪与否。当然了，如果特朗普真的妨碍司法公正还是很严重的。但同样重要的是他有没有滥用总统权力，有没有违反法治精神，是否存在不道德的行为，哪怕没犯罪也不能一带而过。

正如时事评论员大卫•弗拉姆和其他人说到的，现在舆论比较倾向刑事诉讼。不管特朗普竞选跟俄罗斯情报部门是否存在秘密“勾结”，也不管那些私下交易（如果真的存在）是否触犯法律，公开信息就已经足以定罪。特朗普和竞选团队跟俄罗斯黑客事件很明显有公开联系。“我热爱维基解密，”特朗普竞选期间经常这么说。“俄国人，如果你们在听的话，”他曾说，希望你们黑掉希拉里的电子邮箱。特朗普和团队代理总是讨论泄密的资料。现在特朗普又为了阻挠调查自己与俄罗斯的关系解雇了FBI局长。

美国情报界一致认为俄罗斯是黑客事件背后主使，身为总统的特朗普却一直表示质疑。科米的证词强调俄罗斯对美国大选的攻击是“很重要的事”。他表示，“他们（俄罗斯人）又盯上美国了”，又来攻击民主国家了。有几位参议院问科米，能否看出特朗普对俄罗斯的不端行为或造成的威胁是否关心或担心。科米的回答非常长，但总结起来就两个字：没有。特朗普令人不安的地方很多，但今天这条可能是最让人不寒而栗的。（财富中文网）

本文作者安德鲁•肯特是福德汉姆大学法学院教授。

译者：Pessy

审稿：夏林

There have been many bad news days already for the still-young Trump Administration. Thursday was yet another terrible one. Former FBI Director James Comey's testimony before the U.S. Senate Select Committee on Intelligence was devastating. Whether or not his remarks revealed crimes by the President—more on that below—it revealed a President who freely lies about matters of great public import, and who either thoroughly misunderstands or knowingly violated deeply important norms that keep federal law enforcement free from political interference.

Comey, of course, was fired by President Trump from his post in May. The White House initially claimed the firing was due to Comey's controversial handling last summer and fall of the criminal investigation into Hillary Clinton's private email server. But President Trump soon admitted publicly that he had in fact fired Comey due to his dissatisfaction with the FBI's investigation into Russia's interference with the presidential election and possible collusion between the Trump campaign and Russia.

Comey, it should be noted, is a life-long Republican. He reportedly donated to the John McCain and Mitt Romney presidential campaigns in 2008 and 2012, respectively. He held a senior position in the George W. Bush administration. As FBI director, Comey decided to drop his Republican party registration, apparently due to the need for the director to be perceived as apolitical. Comey has been criticized by both left and right for his handling of the Clinton email matter during the 2016 presidential campaign. But everybody agrees that Comey is a straight shooter—as honest as they come—and a devoutly committed public servant.

So Comey's testimony on Thursday about Trump (and other matters) is highly credible. No one argues that he is misreporting the facts. What are those facts?

• From the beginning, Comey did not trust Trump and the people around him and so took contemporaneous notes of conversations because he feared that Trump or his team might later lie about what occurred.

• Comey stated that Trump had told "lies" to the American people when he claimed the FBI was in disarray and that FBI agents had lost confidence in Comey. (This and all other quotations and transcriptions are mine.)

• During a one-on-one dinner meeting requested by Trump, the President demanded that Comey pledge personal loyalty to him. Comey demurred. (Comey also testified that Trump's later claim that Comey asked for this meeting in order to request that he keep his job was another lie. Trump asked for the meeting, and the President had previously told Comey that he wanted him to remain as FBI Director.)

• The day after National Security Adviser Michael Flynn was fired, as a result of news reports that Flynn had lied about his pre-inauguration communications with the Russian ambassador, Trump cleared everyone out of an Oval Office meeting so he could tell Comey alone that he hoped the FBI would drop its investigation of Flynn.

• In the context, Comey perceived this as an "order" from the President.

• Comey, of course, did not drop the investigation of Flynn, or the larger investigation.

• Trump later called Comey twice to complain about "the cloud" the Russia investigation was casting over the presidency and him personally, and asked Comey to make public statements that Trump was not personally being investigated into order to "lift the cloud."

• The Russia investigation—the cloud—continued. Trump then fired Comey. Why?, he was asked. Comey (my transcription): "I take the President at his word that I was fired because of the Russia investigation."

• Comey was repeatedly "stunned, "troubled," "concern[ed]" and "shocked" by the President's behavior.

There are so many extraordinary and disturbing things about the President's conduct that it is hard to know where to start.

It may not come as a surprise anymore to hear it said that Trump frequently lies. But it should matter that such behavior was confirmed today, beyond any reasonable doubt, by one of the most credible people in public life. And these were not lies as a private citizen, or about private business or personal peccadilloes. These were lies as told in his role as President about matters of public importance.

Congress gave the FBI Director a 10-year term in office because, in the wake of the Watergate scandal in the 1970s, it wanted to protect the FBI from interference or instruction by the White House. Congress and the American people overwhelmingly agreed that federal law enforcement needed to be apolitical and independent. Trump has flouted that norm in an extraordinarily damaging fashion.

The President's claim that Comey has vindicated him is incorrect. Comey did say that Trump "personally" was not the subject or target of an FBI investigation, and that Comey had communicated this to the President. But Comey also testified that Trump’s conduct fell within “the scope of” the FBI investigation. More than that, we know from Comey and other sources that Trump's presidential campaign, his former campaign manager, other campaign staff, Trump businesses, and other Trump associates on the campaign and in government, including Trump's son-in-law and his former national security adviser, are being investigated by the FBI and federal prosecutors.

Comey would not comment on whether Trump's actions constituted the crime of obstruction of justice. He left that call to Robert Mueller, the recently-appointed special counsel overseeing the Trump-Russia investigation. Whether or not Mueller might ever bring such a charge, enough is now known to say that the charge would be legally supported.

But we must remember not to focus too narrowly on whether crimes were committed. Of course it matters whether the President committed the crime of obstruction of justice. But it also matters whether he abused the power of his office, defied norms protecting the rule of law, or behaved unethically, even if those actions do not constitute crimes.

The language of criminal law is coming to dominate the discussion to an unfortunate degree, as political commentator David Frum and others have noted. Whether or not there was secret "collusion" between the Trump campaign and elements of the Russian intelligence services, and whether or not those secret dealings—if they occurred—constituted crimes, much damning information is already public. There was clearly a kind of public collusion by Trump and his campaign with the Russian hacking. "I love Wikileaks," Trump liked to say on the campaign trail. “Russia, if you’re listening," he said, I hope you hack Hillary Clinton's emails. He and his campaign surrogates talked incessantly about the leaked materials. And Trump fired his FBI Director to try to stymie an investigation into Trump-Russia connections.

In the face of the unanimous opinion of the U.S. intelligence community that Russia was behind the hacking, Trump as President has continued to cast doubt on that. Comey's testimony emphasized that Russia's attack on the U.S. election was a really "big deal." And "they are coming after America" and its democracy again, he said. Comey was asked by several senators whether Trump seemed to be interested or concerned about Russia's misconduct or the threat Russia posed. Comey gave long answers that can be summarized with one word: no. Although the list is long, that may have been the most troubling thing America learned today about its President.

Andrew Kent is a professor of law at Fordham University School of Law in New York City.