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Renato Mariotti @renato_mariotti
, 11 tweets, 3 min read Read on Twitter
THREAD: How much would FBI Deputy Director Andrew McCabe’s testimony that @Comey told him about his conversations with Trump help Mueller in an obstruction case?
1/ In the story above, @mkraju of @CNN reports that McCabe told Congress that @Comey told him about his conversations with Trump shortly after they happened. That’s important because those conversations appear to be the centerpiece of Mueller’s obstruction investigation.
2/ Obstruction also appears to be Trump’s greatest legal liability at this time, given what we know publicly, although whether a sitting President can be indicted is a hotly debated legal question that no one can definitively answer.
3/ But let’s say that there was a trial concerning obstruction. Would Comey’s statements to McCabe come into evidence? Probably, even though someone’s statements out of court (such as Comey’s statements to McCabe) usually aren’t admissible as evidence.
4/ Although the general rule is that “hearsay” (statements made out of court) can’t be testified to in court, there are many exceptions. One of those is for “prior consistent statements.”
5/ So if Comey testifies as to what Trump told him (which is proper because Trump’s words can be used against him) and the defense team attack’s Comey’s credibility, Comey’s prior statements to McCabe can be used to show that he didn’t make up his testimony about what Trump said.
6/ If Trump’s team didn’t attack Comey’s credibility at all, instead mounting a different kind of defense, McCabe couldn’t testify about what Comey told him.
7/ As a practical matter, McCabe’s potential testimony would be very important in an obstruction trial of Trump. (Or anyone else, as long as they were a co-conspirator of Trump or there was another reason why Trump’s words could be used.)
8/ It would be hard to defend an obstruction case while accepting all of Comey’s testimony and making no attack on him. Although a jury would likely find Comey to be more credible than Trump, good cross-examination could create doubt, while letting him go unchallenged would hurt.
9/ That said, given that Comey briefed McCabe and other FBI leaders soon thereafter, their testimony backing up Comey’s account could be devastating. The fact that Comey briefed his staff shortly afterward would put Trump’s team in a tough spot at a trial.
10/ That could be one reason why Comey briefed them. He is savvy and spent a career in law enforcement, so when he saw conversations that were problematic, he wrote memos and told others to create a record that could be used later. That’s what FBI agents are trained to do. /end
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