Robert Farley and Eugene Kiely

FactCheck.org

The Trump administration has offered some “nothing to see here” spin in response to the president’s firing of FBI Director James Comey. But President Trump and White House deputy press secretary Sarah Huckabee Sanders have twisted some facts to fit that narrative:

Sanders wrongly claimed that former director of national intelligence James Clapper said there was “no evidence of collusion between the Trump campaign and the Russians.” Clapper said he was not aware of any evidence, but added that he was not privy to the FBI’s ongoing investigation.

Trump misleadingly tweeted that Sen. Chuck Schumer “stated recently” that he had no confidence in Comey. But those comments from Schumer came before the election — not recently.

Trump said that Comey told him “on three separate occasions, that I am not under investigation.” We don’t know what Comey told Trump, but we do know that Comey said the FBI is investigating “whether there was any coordination between the [Trump] campaign and Russia’s efforts” to influence the election.

It has been quite a start to the week for the Trump administration. On May 8, former acting attorney general Sally Yates told a Senate subcommittee that she provided early warnings to the Trump administration that its national security adviser, Michael Flynn, had provided deceptive information about his conversations with a Russian official. Yates and Clapper talked about how that could have made Flynn, who was later fired, vulnerable to blackmail by the Russians.

Then, the following day, the president made the surprise announcement that he had fired the head of the agency that is investigating possible links between Trump campaign associates and Russia’s attempts to influence the 2016 presidential election.

What Clapper Knew, and Didn’t Know

On MSNBC’s Morning Joe program, Sanders said the investigations by the FBI and congressional committees have gone for “almost an entire year,” and that “Clapper and others” have all come to the same conclusion, that there’s “no evidence of collusion between the Trump campaign and the Russians.”

Her comment mirrors Trump’s tweet two days earlier in which the president claimed the former director of national intelligence said “there is ‘no evidence’ of collusion w/ Russia and Trump.”

That’s not what Clapper said.

Trump’s tweet came in response to an exchange that Clapper had with Republican Sen. Lindsey Graham during a Senate Judiciary subcommittee hearing on May 8.

Graham asked Clapper about a statement he made in a March 5 interview on NBC’s Meet the Press that “there was no evidence” of collusion between the Trump campaign and Russian officials included in an intelligence report that Clapper’s office released on Jan. 6. Here’s what Clapper told host Chuck Todd:

Clapper, March 5: "We did not include any evidence in our report, and I say, 'our,' that’s NSA, FBI and CIA, with my office, the Director of National Intelligence, that had anything, that had any reflection of collusion between members of the Trump campaign and the Russians. There was no evidence of that included in our report." Todd: "I understand that. But does it exist?" Clapper: "Not to my knowledge."

Graham asked if that was still accurate.

“It is,” Clapper said.

But saying that one is not aware of evidence of collusion, or that no evidence of collusion was included in the report, is not the same thing as saying there is no evidence of it.

In the Meet the Press interview, Clapper went on to say “at the time, we had no evidence of such collusion.” But he added, “This could have unfolded or become available in the time since I left the government.”

At the May 8 hearing, Clapper said he wasn’t even aware of the FBI investigation into possible collusion between the Trump campaign and Russian operatives until March 20. He then explained why he would not have known that when he was the director of national intelligence.

Clapper, May 8: "When the intelligence community obtains information suggesting that a U.S. person is acting on behalf of a foreign power, the standard procedure is to share that information with the lead investigatory body, which of course is the FBI. The bureau then decides whether to look into that information and handles any ensuing investigation if there is one. Given its sensitivity, even the existence of a counterintelligence investigation’s closely held, including at the highest levels. "During my tenure as DNI, it was my practice to defer to the FBI director, both Director Mueller and then subsequently Director Comey, on whether, when and to what extent they would inform me about such investigations. This stems from the unique position of the FBI, which straddles both intelligence and law enforcement. And as a consequence, I was not aware of the counterintelligence investigation Director Comey first referred to during his testimony before the House Permanent Select Committee for Intelligence on the 20th of March, and that comports with my public statements."

To be sure, as part of its investigation into Russia’s efforts to influence the 2016 presidential race, the FBI is investigating whether there was any collusion between the Trump campaign and Russian officials. As Clapper referenced, Comey made that perfectly clear in a House intelligence committee hearing on March 20. (More on that later.)

Schumer on Comey

After firing Comey, Trump took to Twitter to chastise Democrats who criticized the move, particularly those — such as Sen. Chuck Schumer — who have criticized Comey in the past.

When the president called Schumer to tell him about the firing, Schumer said he told Trump, “you are making a big mistake.” In a press conference after the phone call, Schumer called the firing troubling and speculated that perhaps the FBI investigation “was getting too close to home for the president.”

A few hours later, Trump fired back with a tweet suggesting Schumer was being hypocritical, given that he “stated recently” that he did not have any confidence in Comey.

Actually, Schumer’s quote about Comey was not all that recent.

The White House released a link to an article about Schumer saying — on Nov. 2, 2016 — that he had lost confidence in Comey. That was before the election. Specifically, Schumer was upset that Comey announced the reopening of the investigation into Hillary Clinton’s emails just two weeks before the election. Although Schumer criticized Comey, he stopped short of calling for his ouster.

We couldn’t find any more recent quotes in which Schumer spoke directly to Comey’s performance. But on NBC’s Meet the Press on March 5, Schumer provided supportive words for the FBI generally and its ability to conduct its investigation into the Trump campaign “without political interference.”

Schumer, March 5: "The FBI is the premiere investigative agency here in our government. And I believe that they will do their job and get to the bottom of this without political interference."

That wasn’t a specific vote of confidence for Comey, but Comey was head of the agency at the time.

More important, Schumer’s comment about lacking confidence in Comey was made more than six months ago, and before the election.

In his press conference on May 9, Schumer said, “The first question [about the firing of Comey] the administration has to answer is, ‘Why now?’ If the administration had objections to the way Director Comey handled the Clinton investigation, they had those objections the minute the president got into office. But they didn’t fire him then. Why did it happen today?”

In his letter firing Comey, Trump said he relied on the recommendations of Attorney General Jeff Sessions and Sessions’ deputy, Rod Rosenstein. Rosenstein’s memo primarily cites Comey’s “handling of the conclusion of the investigation of Secretary Clinton emails.” Specifically, Rosenstein took issue with Comey’s decision to hold a press conference on July 5, 2016, to publicly announce that he would not recommend criminal charges against Clinton and her aides.

After that press conference, Trump blasted Comey and the “crooked” FBI for not prosecuting Clinton, but he frequently quoted the critical comments that Comey made about Clinton at his July 5. 2016, press conference. For example, a Trump campaign document on “Hillary’s Lies” contained five quotes from Comey’s press conference.

After Comey announced he had reopened the investigation two weeks before the election, Trump praised the FBI director. At an Oct. 31 campaign rally, he said Comey had “a lot of guts,” and at an Oct. 29 rally he said he had “respect” for Comey’s decision.

In an April 12 interview on Fox News, Trump was asked why he didn’t fire Comey as soon as he became president. Trump criticized Comey for “saving” Clinton from prosecution, but added, “I have confidence in him. We’ll see what happens. It’s going to be interesting.”

At a May 10 press briefing, Sanders was asked when Trump lost confidence in Comey. She told reporters that “one of the big catalysts” came when Comey testified at a May 3 congressional hearing.

“I think one of the big catalysts that we saw was, last week, on Wednesday, Director Comey made a pretty startling revelation that he had essentially taken a stick of dynamite and thrown it into the Department of Justice by going around the chain of command when he decided to take steps without talking to the Attorney General or the Deputy Attorney General when holding a press conference and telling them that he would not let them know what he was going to say,” she said, “and that is simply not allowed.”

It is not accurate to describe Comey’s unilateral decision to hold a press conference last year as a “startling revelation.” It’s old news.

In fact, Comey said at his July 5, 2016, press conference that he did not coordinate it with the Department of Justice. At the time, the department was headed by Attorney General Loretta Lynch, who came under criticism for an impromptu meeting with Bill Clinton a few days earlier on the tarmac of an airport in Arizona.

“I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government,” Comey said at the start of last year’s press conference. “They do not know what I am about to say.”

Comey’s decision to disclose his recommendation without first consulting with the Department of Justice was part of what The New York Timesdescribed as “a day of political high drama.”

The New York Times, July 5, 2016: "White House officials said Mr. Obama also did not know about Mr. Comey’s plans ahead of time. The F.B.I. director said he did not coordinate the statement with the Justice Department or any other agency. 'They do not know what I am about to say,' he declared."

Comey on FBI’s Russia Probe

In his dismissal letter to Comey, Trump said that the FBI director told him “on three separate occasions, that I am not under investigation.”

Trump, May 9: "While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau."

We asked the White House when these three occasions took place and exactly what Comey told Trump. We asked, too, for an explanation of what Trump means when he said he is “not under investigation.”

We received no response to our questions, but at her press briefing, Sanders declined to answer. “I’m not going to get into the specifics of their conversations, but I can tell you that Director Comey relayed that information to the president,” she said.

It would be important to know exactly what Comey told Trump. It’s not clear to us what Trump meant when he said, “I am not under investigation.” We asked the White House, for example, if Comey told Trump that he was not the subject or target of an investigation, which has specific legal meaning in the U.S. criminal code.

According to the U.S. Attorney’s Manual:

A “target” is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant. An officer or employee of an organization which is a target is not automatically considered a target even if such officer’s or employee’s conduct contributed to the commission of the crime by the target organization. The same lack of automatic target status holds true for organizations which employ, or employed, an officer or employee who is a target.

A “subject” of an investigation is a person whose conduct is within the scope of the grand jury’s investigation.

There is no evidence that the president is a target or a subject. But there is an active, ongoing investigation of his campaign, as Comey confirmed at a March 20 hearing of the House Permanent Select Committee on Intelligence. He declined to say, however, “whose conduct we are examining,” citing the ongoing investigation.

Here’s what Comey said in his opening remarks:

Comey, March 20: "As you know, our practice is not to confirm the existence of ongoing investigations, especially those investigations that involve classified matters, but in unusual circumstances where it is in the public interest, it may be appropriate to do so as Justice Department policies recognize. This is one of those circumstances. "I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed. "Because it is an open, ongoing investigation and is classified, I cannot say more about what we are doing and whose conduct we are examining. At the request of congressional leaders, we have taken the extraordinary step in coordination with the Department of Justice of briefing this Congress’ leaders, including the leaders of this committee, in a classified setting in detail about the investigation, but I can’t go into those details here. I know that is extremely frustrating to some folks. I hope you and the American people can understand. The FBI is very careful in how we handle information about our cases and about the people we are investigating."

During questioning, Democratic Rep. Jim Himes asked Comey whether the FBI investigation of the Trump campaign was still in its early stages. Comey characterized the length of the investigation, which at that point was less than a year, as “a fairly short period of time.”

“It’s hard to say because I don’t know how much longer it will take,” Comey said. “But we’ve been doing this — this investigation began in late July, so for counterintelligence investigation that’s a fairly short period of time.”

Again, we don’t know what Comey told the president, but there is still an ongoing investigation. We will update this article if we do get more information from the White House or Comey.

Read more:

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