Joe Biden never suggested prosecuting Lt. Gen. Michael Flynn under an antiquated law known as the Logan Act, former FBI Director James Comey testified Wednesday, contradicting a claim made by President Donald Trump during Tuesday’s debate.
Comey’s sworn claim to the Senate Judiciary Committee is significant because Trump and Flynn have in recent months asserted that Biden raised Logan Act prosecution of Flynn during a Jan. 5 2017 Oval Office meeting that included President Barack Obama, Comey and other senior national security officials.
A set of FBI notes produced in June by the Justice Department to Flynn’s defense team indicated that Biden referenced the Logan Act during that meeting but provides no context about how the topic arose or what Biden said.
Flynn’s case has been at the heart of Trump’s baseless claim that Obama illegally orchestrated a spying campaign against his incoming administration.
Flynn, who served as Trump’s national security adviser for only a few weeks before Trump removed him amid the ongoing investigation, pleaded guilty in December 2017 to lying to the FBI about his conversations with the ambassador to Russia. After cooperating with investigators for a year, Flynn abruptly reversed course and sought to withdraw his guilty plea earlier this year.
In May, the Justice Department moved to drop the prosecution, but the federal judge presiding over the case — Emmet Sullivan — appointed an outside adviser who has urged Sullivan to reject dismissal, arguing that DOJ’s reversal is an effort to protect a political ally of the president.
A day before the 2017 Oval Office meeting, the FBI had begun exploring whether to bring a Logan Act case against Flynn for his December 2016 conversations with Russia’s U.S. ambassador. In those conversations, Flynn urged the Kremlin not to engage in an escalating tit-for-tat with the outgoing Obama administration, which had just issued sanctions against Russia for interfering in the 2016 election.
The Logan Act, a largely obsolete 18th century statute, prohibits private citizens from attempting to carry out official U.S. foreign policy. Trump and his allies have alleged that the FBI raised the Logan Act as a pretext to interview Flynn and ultimately prosecute him for making false statements about his calls with the Russian ambassador. Comey and other investigators have said their primary purpose for investigating Flynn was not based on the Logan Act but on a counterintelligence investigation into the Trump campaign’s extensive contacts with Russia.
Under questioning from Sen. Chris Coons (D-Del.), Comey said neither Obama nor Biden ever suggested prosecuting Flynn under the Logan Act.
“I would remember it because it would be highly inappropriate,” Comey said. “It did not happen.”
Comey’s testimony conflicted with Trump’s debate-stage interpretation of the FBI notes during Tuesday’s debate, part of an attack on the FBI’s investigation of his campaign’s contacts with Russia.
“You gave the idea for the Logan Act against General Flynn,” Trump said. “You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.”
Comey’s comments on the Logan Act came amid a broader discussion of the FBI’s handling of the Flynn case. Comey said on Wednesday that the Justice Department’s attempt to drop the Flynn, which it initiated in May, is “deeply concerning,” suggesting Flynn is receiving special treatment and that other key pieces of evidence have been misrepresented.
“It’s deeply concerning because this guy is getting treated in a way that nobody’s been treated before,” Comey said during public testimony to the Senate Judiciary Committee.
Under questioning, Comey also sought to undercut another specific premise of Flynn’s legal defense.
Flynn’s legal team has highlighted recently disclosed FBI notes which suggest Comey described Flynn’s December 2016 calls with Russia’s U.S. ambassador as “legit.” The Flynn team cited this comment as evidence that the FBI had no basis to later interview Flynn about these calls as part of its investigation of the Trump campaign’s ties to Russia.
But when pressed by Sen. Chuck Grassley (R-Iowa) about the comment, Comey said Wednesday that his use of the term “legit” would not have been intended to characterize the calls as appropriate. Rather, he said his use of the phrase would have meant that the calls were “authentic” and “not fabricated.” However, it’s unclear why the authenticity of the calls would have been in question, since they were the product of FBI intercepts.
The exchange punctuated Comey’s broader testimony to panel, chaired by Sen. Lindsey Graham (R-S.C.), in which Comey largely defended the bureau’s investigation into potential ties between Trump and Russia. Though he acknowledged that some aspects of the probe were mishandled, he said the broader investigation was “essential” and handled appropriately. And he said he was never asked by former President Barack Obama or former Vice President Joe Biden to investigate a political rival or “go easy on” anyone.
“It was done by the book, it was appropriate, and it was essential that it be done,” Comey told the committee. “Overall, I’m proud of the work.”
Comey also questioned Director of National Intelligence John Ratcliffe’s decision to release a Russian intelligence assessment stating that Hillary Clinton tried to pin Russia’s 2016 hack of the Democratic National Committee on Trump. Specifically, Ratcliffe wrote that Comey was briefed on that assessment, which Ratcliffe acknowledged was unverified and might be an “exaggeration” or “fabrication” by the Russians.
“That doesn’t ring any bells with me,” Comey said, adding that he had “trouble understanding” Ratcliffe’s letter.
Comey was the latest witness to testify as part of Graham’s investigation, which Democrats have harangued as a partisan effort to boost the president in an election year. Trump has encouraged Graham’s investigation, in part because it is aimed at undermining the Russia probe.
Comey’s former deputy, Andrew McCabe, is slated to testify before the panel next week, though his lawyer has already said that he does not yet have access to government documents he needs in order to inform his testimony.
Wednesday marked Comey’s third time testifying before GOP-led congressional committees since Trump fired him in May 2017. Initially, Trump cited Comey’s handling of the investigation into Hillary Clinton’s private email server as the basis for his removal, but he said in a TV interview that he removed Comey because of his role presiding over the investigation of the Trump campaign’s ties to Russia.
Trump and his allies in Congress have fashioned Comey into an archenemy, the mastermind of an investigation meant to topple the Trump presidency. Trump has pushed for Comey to be prosecuted and attacked him on Twitter hundreds of times since his removal.
But Trump’s decision to fire Comey also became the basis for special counsel Robert Mueller — appointed days later by then Deputy Attorney General Rod Rosenstein — to explore potential obstruction of justice by the president. Rosenstein testified before the Judiciary Committee earlier this year.
After his removal, Comey revealed that he had kept contemporaneous memos of his conversations with Trump and raised concerns that Trump had been pressuring him to end the Russia investigation and to drop the Flynn investigation.