The day before Thanksgiving, former FBI director James Comey was served a subpoena from House Judiciary Committee chairman Bob Goodlatte. Comey was called to be interviewed on Capitol Hill, behind closed doors, an arrangement to which he objected: “I worry, from the conduct we’ve seen, that it’s more about trying to create some false narrative that the FBI was on Team Clinton and against Team Trump,” Comey told Boston public radio station WGBH. “The best antidote to that kind of distortion is to have sunshine. Ask me questions and let all of America watch.”
Who objects to sunshine? That metaphorical disinfectant has been lamentably lacking in the convoluted, overlapping, and intertwined investigations into Hillary Clinton and Donald Trump. But it did not go unnoted that Comey’s suggestion had a self-serving aspect: A seasoned performer with extensive experience testifying before congressional committees, Comey could count, with some confidence, on building his celebrity by battling and perhaps besting his interlocutors in a public brawl.
Trey Gowdy, chairman of the House Committee on Oversight and Government Reform, wasn’t buying it. He told Face the Nation: “The remedy is not to have a professional wrestling-type carnival atmosphere, which is what congressional public hearings have become.” What did Gowdy suggest? A hybrid approach in which the interview is conducted in private but videotaped for release after being scrubbed to remove classified information.
It wasn’t a bad idea, but the problem is not one to be solved with a tape delay. Turn on a camera and you can count on the usual subjects—both the congressmen and their prey—to strut and preen for the audience.
The standard procedure for a Capitol Hill hearing is incompatible with any serious investigation: a back-and-forth in which a member of the majority gets five minutes followed by five for someone from the minority, back to the majority, then minority, so forth and so on until every lawmaker has had his or her say. Five minutes isn’t enough time for the average Foghorn Leghorn to clear his throat, let alone put together a coherent series of probing questions. It is just long enough for a spurt of speechifying, usually of the pose-striking variety. Which is why witnesses sometimes listen to a succession of pontificating lawmakers without ever being asked a question.
Even if one non-showboating questioner controls all the time for a given side, the fact that it comes in five-minute snippets is debilitating. Remember Arizona prosecutor Rachel Mitchell, called in by Senate Judiciary Committee Republicans to pose questions to Brett Kavanaugh’s accuser? Mitchell was flummoxed by the start-and-stop. Accustomed to regular courthouse interview practices, she kept asking Christine Blasey Ford to review documents, which the witness did with all deliberate speed, burning up the questioner’s limited segments of time. Told by Chairman Charles Grassley that she had run over her first five minutes, Mitchell nervously replied, “I’m sorry, I didn’t see the light.” She never did figure out how to get at the core of the controversy in short installments.
By contrast, behind closed doors on Capitol Hill the practice is for professional committee investigators to do the questioning, switching between the majority and minority staff not every five minutes, but every half-hour. It solves the showboat problem and the continuity problem. But an issue remains: The secrecy of the proceedings keeps the public from assessing the evidence for themselves, encouraging rumor and spin. This last defect can be repaired simply: make interview transcripts public.
The model for this has been Grassley’s practice at the Senate Judiciary Committee of distributing as many straightforward transcripts of important interviews as possible. For example, as each sexual misconduct/assault allegation was made against Kavanaugh, committee staff interviewed the judge in private and Grassley would then make available to the public transcripts of the interviews.
One thing we were told repeatedly during the Kavanaugh ordeal was that testimony to the committee is given under penalty of perjury—specifically, under 18 USC section 1001, which makes false statements a crime (punishable with five years imprisonment). But Section 1001 prosecutions tend to come from false statements to the FBI, not congressional testimony. That pattern changed last week, when former Donald Trump lawyer Michael Cohen pleaded guilty to making false statements to the House Permanent Select Committee on Intelligence and the Senate Judiciary Committee. Significantly, it was not open hearings that elicited those false statements.
Those being interviewed behind closed doors are routinely warned about Section 1001, as was Donald Trump Jr. when he gave testimony to Senate Judiciary in September of last year. He was told the law “makes it a crime to make any materially false, fictitious or fraudulent statements or representation in the course of a congressional investigation.” The president’s son acknowledged that he understood and proceeded to declare, “I did not collude with any foreign government and do not know of anyone who did.”
As I have noted before in these pages, that statement stakes out an unambiguous, and legally risky, position for Don Jr., who “cannot now claim to have engaged in some sort of everybody-does-it noncriminal ‘collusion’ without running afoul of . . . Section 1001.” Don Jr. also testified that he never told his father about the now-notorious Trump Tower meeting. That puts Junior one careless presidential tweet (if such a thing is imaginable) away from Section 1001 liability, which special counsel Robert Mueller might well prosecute.
If that were to happen, Americans would have a much greater opportunity to form opinions for themselves about the prosecution than they usually do with the opaque Special Counsel’s office. The Senate Judiciary Committee long ago made the transcript of its interview with Donald J. Trump Jr. public, as it has the interviews with other participants in the Trump Tower meeting. Anyone who’s interested in knowing in detail what happened at Trump Tower can go to the Senate Judiciary website and download the thorough questioning of such characters as Rob Goldstone, Ike Kaveladze, and Rinat Akhmetshin. The transcripts are well worth reading, and not just for the information they convey. The transcripts capture political staff of both parties in the act of asking thorough, sometimes tough questions with a professionalism and civility that had been thought to be lost in our fraught and ugly times.
Which brings us back to James Comey. “I’m still happy to sit in the light and answer all questions,” Comey tweeted. “But I will resist a ‘closed door’ thing because I’ve seen enough of their selective leaking and distortion. Let’s have a hearing and invite everyone to see.”
Inviting everyone to see invites a debased circus. When it comes to investigations (as opposed to hearings on legislation and policy) it’s best to take testimony off camera. But only if transcripts of that testimony are made available and easily accessible afterwards. No one, after all, can leak information that has officially been released. That’s real sunshine, the sort that gets at crucial information rather than providing lawmakers and witnesses a platform for grandstanding.
Happily, after a week’s worth of negotiation, that is the solution on which Goodlatte and Comey finally agreed. Let’s hope that such procedures become standard practice rather than a negotiated rarity.
