When former FBI Director James Comey testified to the Senate Intelligence Committee last Thursday, he may have had impeachment on his mind. I’m not talking about the constitutional kind, which describes the process of removing the president from office. Rather, I’m referring to the legal term used to undermine a witness’s credibility on the stand. By telling senators and the viewing public that he gave his memos detailing his conversations with the president to his friend, Columbia Law School professor Daniel Richman, Comey made his own character and judgment an immediate issue – but he also preemptively inoculated himself from future attack in the event that he gets called as a fact witness in a criminal trial.
The Sixth Amendment to the Constitution guarantees all criminal defendants the right “to be confronted with the witnesses against him.” The purpose of this right is to allow the defendant to cross-examine his accusers and challenge not only their testimony, but also their honesty, impartiality or moral character. By casting doubt on any or all of these factors – known as “impeaching” a witness – a defense lawyer can persuade a jury that the witness’ testimony is not to be believed. A good example is Detective Mark Fuhrman from the O.J. Simpson trial, whom the defense impeached on the stand by introducing taped conversations in which Fuhrman used racial epithets. In his closing statement, attorney Johnny Cochran argued that given Fuhrman’s racial bias, none of the evidence found by Fuhrman and implicating Simpson could be trusted, since it could have been planted at the scene by Fuhrman himself. O.J., of course, was acquitted.
Prosecutors know full well that allowing defense counsel to impeach their witnesses on the stand can be devastating, as it was in the Simpson case. They also know that no one on the stand is immune from it: As Renato Mariotti, a former federal prosecutor, notes, “every witness you have has some form of baggage.” To reduce the damage that might be inflicted in cross-examination, prosecutors engage in a maneuver called “fronting,” in which the prosecutor asks the witness first, on direct examination, about anything that might impact their credibility. By getting the information out early, the prosecution can make damaging aspects of a witness’ background or character look like less of a big deal because they are willing to be upfront about it, thereby neutralizing the impact it could ultimately have on the jury.
As a former prosecutor himself, Comey understands the idea of fronting very well, a fact that could explain the rich narrative he offered about his decisions to “leak” his memos. When asked by Senator Susan Collins (R-Maine), “To whom did you show copies of your memo?” Comey responded with more information than the question required, starting with how he “woke up in the middle of the night,” alluding to reasons he gave the memos to a friend rather than release them himself, and stating his motive of wanting to orchestrate the appointment of a special counsel. Comey appeared almost to be waiting for an opportunity to provide all of these details himself, rather than have them discovered piecemeal by the committee, or revealed at some future date.
By fronting his own baggage, Comey accomplished two objectives. First, he got to control the narrative about his decision to make his memos public and present it straight to the “jury”: the Senate. Remember that even if Special Counsel Robert Mueller finds enough evidence to bring obstruction charges against the president, most legal and constitutional experts agree that a sitting president can’t be indicted. He would first have to be impeached and removed from office under the process outlined in the Constitution, which has two stages: a trial in the House of Representatives, and a conviction by the Senate. The Senate would be the body ultimately weighing Comey’s credibility as a fact witness against the president, and they presumably now know the worst there is to know about his character.
Second, and more importantly, Comey made his story public so early that it will be a nonissue if he ever becomes a fact witness in a trial. Although public support for impeachment and removal of the president is growing (about 50-50, according to Vegas betting odds), any such action, if it happens at all, is months and more likely years away. Although Comey’s testimony is currently dominating the news, every possible legal and moral angle will be parsed ad nauseum over the next few weeks and eventually replaced with some other “scandal.” By the time this issue resurfaces again at some date far in the future, it will be snooze-worthy and unlikely to have any meaningful impact on the rest of Comey’s testimony.
The White House is playing right into this strategy by publicly airing every challenge it would make on the stand – and having each one publicly discredited. These include characterizing Comey’s actions as a leak (it’s not; he was a private citizen), arguing that the conversations were privileged (they’re weren’t; Trump had already disclosed them), and accusing Comey of breaking the law (he didn’t; it’s not illegal to share unclassified recollections). None of these challenges, it’s worth noting, constitutes a defense to obstruction charges. At some point, the White House might realize that the one thing more important than the court of public opinion is a court of law – and that it might be wise to change course accordingly.