What Does Comey's Statement Tell Us about Obstruction of Justice in the Flynn Investigation?

It is hazardous to do too much reading between the lines of former FBI Director James Comey’s written statement to the Senate Intelligence Committee, released today in advance of his testimony tomorrow. He made some clear choices, the most important of which was to stick to an account of his specific interactions with president. However, in the immediate aftermath of the statement, some of the commentary so far might have been too conservative on one point: the potential for an obstruction charge related to the President’s concern for Michael Flynn.

There is a general sense that Mr. Comey stopped short of suggesting that Mr. Trump engaged in obstruction of justice, in relation to either himself or Flynn. Certainly nothing in explicit terms about such a judgment appears in his written account. But there is something close to it—the intimation that the President’s expressed desire that Mr. Comey "let… go" of the Flynn investigation would require evaluation at some point in the future.

In his statement, Mr. Comey relates the exchange with the President, who said "I hope you can see your way clear to letting this go, to letting Flynn go,” and explains that the suggestion was “very concerning, given the FBI's role as an independent investigative agency. He and his FBI colleagues in the agency leadership agreed to keep this information away from the investigative team, and they also concluded that it "made little sense" to reported to an Attorney General about to recuse himself from the Russia matter, and to an acting Deputy Attorney General who would not long be in the role. And then he states:

After discussing the matter we decided to keep it very closely held, resolving to figure out what to do with it the down the road is our investigation progressed.

What is it, then, that he and his colleagues propose to do about “it” later? Among the obvious possibilities would be the evaluation of attempted obstruction, a task that now falls to the Special Counsel. It does not seem that Mr. Comey intended to handle the problem more informally, say, by a word to Attorney General Sessions about the imprudence exhibited by the President in seeking leniency for Flynn. For when he spoke to Mr. Sessions "shortly afterwards," Comey asked him to "prevent any future direct communication between the president and the Director," but he did not raise the President’s request that he let Flynn "go."

The suggestion that any further inquiry would wait until "our investigation progressed" could be taken to indicate that additional time would also allow for the collection of more evidence, if any, of presidential interference. For example, would Flynn, if he comes to cooperate with the prosecution, testify that the President spoke with him about the helping to end the investigation?

In any event, this passage in the Comey statement has opened up the topic for exploration at tomorrow's hearing. If it comes up, it is likely that Mr. Comey will avoid further comment; and the question is addressed at all, it would presumably be taken up in closed session. But the suggestion of a pending obstruction inquiry is left hanging in the written statement, and whether intentionally or intentionally, Mr. Comey has invited both follow-up and reasonable speculation.