President Trump on Friday accused James Comey, the fired FBI director, of lying under oath to Congress when Comey told senators the president asked him to pledge his personal loyalty and to drop an investigation into fired national security adviser Michael Flynn.
Trump told reporters he would be willing to restate the accusation under oath to Robert Mueller, the special counsel investigating ties between the president’s campaign and Russia. That set up a “he-said, he-said” between Trump and Comey, who has a reputation for integrity. (Trump, not so much.)
Unfortunately for Trump, Comey documented in a series of memos the nine one-on-one conversations between the men in the four months that followed Trump’s victory in November. And while such memoranda would ordinarily be kept out of court under the rule against hearsay, the Comey memos likely fall into an exception to the rule for statements made while an event is occurring or immediately thereafter.
Comey testified that he gave the memos to Mueller. Of course, even if Mueller’s investigation finds evidence to suggest the president obstructed justice, the Justice Department would not charge a sitting president. Any evidence the special counsel were to uncover would be considered by Congress as part of impeachment, which is the remedy the Constitution provides for presidential wrongdoing.
The room where it happened
Still, the exception to the hearsay rule for so-called present sense impressions such as those Comey typed up within minutes of concluding his conversations with Trump underscores the trustworthiness the law accords statements by someone who remains stressed by the event that triggered them. As Comey states in the prepared testimony he delivered to the Senate Intelligence Committee:
“To ensure accuracy, I began to type [the notes from his first conversation with Trump] on a laptop in an FBI vehicle outside Trump Tower the moment I walked out of the meeting. Creating written records immediately after one-on-one conversations with Mr. Trump was my practice from that point forward.”
Trump has tweeted that he may have recordings of the conversations, but on Friday he appeared to walk back the assertion. “Oh, you’re going to be very disappointed, don’t worry,” he told a reporter who asked if there are tapes. The leaders of the House Intelligence Committee have asked the White House to produce any such tapes by June 23.