Three days after he fired FBI director James Comey, when a story about a clumsy request for a “loyalty pledge” made the papers, Donald Trump jumped on Twitter to threaten the reported object of his one-time overtures.

“James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!” the president tweeted.

Now it is Trump’s turn to hope that Comey has no tapes, or memos, or anything else that might stand as evidence of untoward conduct on his, the president’s, part.

Comey is set to testify before Congress on Thursday about pressure the president may have placed on him to end the FBI investigation of former national security adviser Michael Flynn and his contacts with Russian operatives before and after the 2016 presidential election.

The perceived hazard for the president, when Comey is sworn in, lies in three words: obstruction of justice.

Comey’s testimony, legal experts say, could go a long way toward establishing whether Trump’s conversations with him amounted to the kind of confidential chatter two high officials thrown together in an unusual situation might be expected to share – or, alternatively, to something bordering on, or crossing into, illegality.

The question is whether Trump sought to use the weight of his office to stifle a criminal investigation to protect a friend, or to protect himself, over and above the national interest.

“I think the most important thing that’s going to happen is we’re going to get a sense of the feel and flavor of the conversations that took place, at least some of them, between the president and Comey,” said Samuel Buell, a former federal prosecutor and law professor at Duke University.

The flavor of these conversations is significant, Buell explained, because “obstruction of justice is an offense that largely comes down to mental state or purpose”.

Obstruction may be in play if Trump fired Comey, or asked Comey to idle the investigation of Flynn or others, with a broader intent – for example to stifle inquiries into alleged Russian tampering in the election or possible collusion with Trump campaign figures. Trump has said that “this Russia thing” was part of his thinking when he decided to dismiss the FBI chief.

The stakes could not be higher. Obstruction of justice is a federal criminal offense. It also happens to have a rich history in the field of presidential impeachment, with the two presidents to face impeachment proceedings in the 20th century – Richard Nixon and Bill Clinton – both facing obstruction of justice charges.



The congressional committee that will hear from Comey on Thursday will not have the power to bring such a charge or to determine definitively whether it might be warranted.

But if Comey’s testimony before the Senate intelligence committee corroborates other seeming evidence of wrongdoing by the president or anyone else, then the Trump presidency could be pushed closer to the brink.

Buell tamped down expectations for a bombshell outing by Comey.

“For example, I would expect him to say, ‘One of my main objectives here is not to do anything that would in any way compromise an ongoing criminal investigation,’” Buell said. “And that might lead him to decide that he shouldn’t talk about all kinds of things.”

Comey has telegraphed, through surrogates speaking anonymously with reporters, that he will not state explicitly that he believes that the president committed obstruction of justice in discouraging the FBI from pursuing its inquiries, including a line of questioning about the conduct of Flynn.

Such a judgment would not, as Comey recognizes, be his to make. While Trump is not theoretically above the law, he does appear to be, for likely practical purposes, beyond prosecution by the justice department or by the special counsel, Robert Mueller, while he is president.

Congress may weigh articles of impeachment against the president, with evidence of obstruction of justice potentially coming into play. It is here that Mueller’s role could be essential. At the end of his investigations, likely to include extensive interviews with Comey, the special counsel would be expected to submit to his justice department superiors a report of his findings. That report could potentially be used by Congress to prosecute the president.

In his testimony on Thursday, Comey is expected to contradict Trump, notably, on the president’s assertion in a signed letter accompanying Comey’s firing that “on three separate occasions” Comey informed Trump “that I [Trump] am not under investigation”.



Republican senator Susan Collins, a member of the intelligence committee, said in an interview on Sunday that she had made three separate trips to CIA headquarters to review the “raw data” and that her questions for Comey would focus on that very point: Trump’s assertion of not being “under investigation”.

“That phrase raises a lot of questions in my mind,” said Collins. “Does Mr Comey agree that that was what was said?”

A blank contradiction by Comey of that assertion would further damage Trump’s credibility. The damage to his presidency remains an open question.