by Larry Jaffee
James Comey, while still in the private sector, in 2012 authored an article for a lawbook entitled “Defending Corporations and Individuals in Government” Investigations (West).
The nine-page article offers advice to embattled organizations in crisis mode, and in hindsight, is fascinating to read in light of recent events surrounding the former FBI director. The book’s co-editor, Daniel J. Fetterman, ironically is a partner in the law firm, Kasowitz, Benson, Torres & Friedman, headed by President Trump’s personal lawyer, Marc Kasowitz, who refuted Mr. Comey’s testimony before the Senate Intelligence Committee last week.
In Mr. Comey’s chapter, which centers on the role of the general counsel, he writes trial lawyers have learned that “everybody lies, everybody forgets and that all people perceive and recall events differently.”
Throughout the chapter, Mr. Comey veers into language that uncannily reflects the quagmire that’s consumed the first months of the Trump presidency, and more recently the events leading up to his firing.
Testifying before the Senate, Mr. Comey questioned the judgment of the president regarding inappropriate contact with him in relation to the FBI’s investigation into Russian meddling in the electoral process, and suggesting the agency “let go” of the Michael Flynn probe.
“Judgment is the ability to orbit a problem or a set of facts and see it as it might be seen through other’s eyes, by observers with different biases, motives, and backgrounds,” Mr. Comey writes.
In Mr. Comey’s analysis, a corporate lawyer serving a CEO, for example, will realize conclusions must pass muster under a preponderance of the clear and convincing evidence standard supportable beyond a reasonable doubt.
Another section delves into “motives, biases, words that convey meaning and nuance (how about “let go”?),” or the concealment of all those things during an internal investigation.
In federal government, the top lawyer is the Attorney General, and the president’s White House counsel is supposed to keep him out of trouble. Neither Jeff Sessions nor Dan McGahn, respectively, had done a good job in that respect. But in a Let Trump Be Trump world, it’s doubtful anyone can get the president to stop tweeting or say whatever he believes in the moment. By what we see publicly, the president clearly wants yes-men who are not present to challenge him.
Mr. Comey also discusses in the chapter the need for organizations to solicit the legal advice of outside counsel to avoid – or the appearance of – conflicts of interests, an expression clearly not in Mr. Trump’s lexicon. It’s not surprising to hear that four leading corporate law firms declined to represent Mr. Trump in the aftermath of the Russian meddling investigation. He apparently was left with Mr. Kasowitz, who has represented Mr. Trump’s business interests for the past 15 years.
A tenet of crisis communications is to get ahead of the story, and Comey followed his own advice in this respect by releasing in advance of his testimony an opening statement. “Don’t let others define the story,” he writes.
The Trump team immediately was put in a defensive posture. And it was Mr. Kasowitz who delivered a rebuttal to the hours of Mr. Comey’s testimony, mostly focusing on the former FBI director’s admission he had provided an outside party with his memos that detailed his dealings with the president.
“You simply cannot allow the company make false statements,” Mr. Comey writes.
President Trump and his representatives are still playing coy on whether tapes exist of his conversations with Mr. Comey, as implied in a now infamous tweet. Either way, Mr. Comey wins: if they don’t exist, it shows Mr. Trump was recklessly bluffing, as he no doubt did in private business. If recordings do exist, most observers don’t doubt they represent Mr. Comey’s version of what transpired.
Mr. Trump approached his new job as if is CEO of the United States. He planned on using the same tactics he used in his private businesses, and he still clearly sees no reason to change anything that won him the election.
In an opening section on “factual garble,” Mr. Comey quotes Napoleon Bonaparte: “The first quality for a commander-in-chief is a cool hand to receive a correct impression of things. He should not allow himself to be confused by either good or bad news.”
Larry Jaffee teaches a graduate course in crisis communications at the New York Institute of Technology.