On a roll about all the “good intelligence on Russia” the Obama administration had, Farkas just came right out and said it:
“That’s why you have the leaking.”6
It wasn’t random leaking. It was leaking with a purpose. It was leaking in the service of a collusion narrative that, on close scrutiny, was based on no credible evidence—the Trump campaign had nothing to do with Russia’s hacking operations, and those operations had no effect on the outcome of the election. On close scrutiny, this narrative was driven by proof of Russia “connections” of the kind that were not unique to Trump associates, and by the self-interested, multiple-hearsay reporting of Christopher Steele. Naturally, President Trump was inordinately frustrated. He was trying to govern, trying to get a new administration up and running. But the public was being told, by seemingly reliable top intelligence insiders, that Trump was in cahoots with the Kremlin. Any day now, we were led to believe, the smoking-gun proof would come to light and he would be driven from office.
Private Assurances, Public Scandalizing
The FBI’s investigation pressed on, seeking evidence that the campaign Trump ran had engaged in a conspiracy with Russia in which Trump was the willful beneficiary. To sustain it, Director Comey tried to put the president at ease. Regardless of what the government leaks told the public, Comey told Trump not to worry, he was not a suspect. The director delivered that soothing message to Trump the first time they met on January 6. He did it again at their dinner on January 27, even discouraging Trump from ordering the FBI to investigate the pee tape allegation. His reasoning now seems amazing: The FBI would not want to help create a public narrative that it was investigating the president. At the time, that very narrative was inundating the public through classified leaks about the state of the investigation, repeated, hour after hour, by the mass media.
Trump decided to fight back, with the Trumpian penchant for attention-grabbing overstatement. It wasn’t enough for the president to say it now appeared to him that the Obama administration had used the government’s foreign intelligence surveillance powers to spy on his campaign—which would have been true. Trump had to make it personal, and inaccurate: President Obama had tapped Trump’s wires. Trump might have been the wronged party, but the hyperbole undermined his case. Everyone chimed in with outrage—former Obama officials, current intelligence officials, congressional Democrats and some of their embarrassed Republican colleagues, media pundits.
This is the problem with the president. Even when he is right, his exaggerations and erratic outbursts, his “take me seriously but not literally” style, his proclivity to distinguish friend from foe in intensely personal (indeed, self-absorbed) terms, makes it exhausting to plead his case. Concededly, to my mind, this is better than having a president who gets rolled over because he won’t fight back when it’s time to fight back—either because it’s beneath his dignity, or because the press will say mean things. Still, no one likes to be on the defensive all the time, including when it should be time to play offense.
In this instance, there is no doubt that President Obama was informed and approving of the counterintelligence measures. I suspect he was probably the maestro, mainly through Brennan. Instead of focusing on that—on whether there had been sufficient grounds to override the American norm against an incumbent administration’s use of counterintelligence powers against its political opposition—we were talking nonsense about wiretaps at Trump Tower (for which there was no evidence) and whether the president was lying (as opposed to misfiring while in the general vicinity of the truth).
To be sure, the new president’s allegation against his predecessor was factually inaccurate. Yet, it was not “baseless” as the incessant ridicule put it. Trump had gotten close enough to the truth that he needed to be squelched.
On March 20, Director Comey did the squelching.
The director had been called to testify before the House Intelligence Committee. At the start of the hearing, he made this breathtaking opening statement (my italics):
I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.
It is against Justice Department policy to confirm the existence of any investigation. The Trump–Russia investigation was not just any investigation. It was a classified counterintelligence investigation. That was why, despite great pressure from Democrats and the Clinton campaign, the FBI had refused to discuss it publicly prior to the election—i.e., when it was certain Mrs. Clinton would win. Comey said he had been “authorized by the Justice Department” to make his stunning disclosure, but Trump appointees were not running the Justice Department. Attorney General Sessions had recused himself, and Rod Rosenstein, nominated to become Deputy AG, had not yet been confirmed. Comey’s “authorization” had come from Obama Justice Department holdovers (the same people who had advised Sessions that he needed to recuse himself in a manner that was rash and more sweeping than dictated by the circumstances7).
Even in the exceedingly rare instances when the FBI might publicly refer to an ongoing investigation (because, like investigation of the Russian regime, it has been referred to in a public government document, such as the ICA), the Bureau never names the subjects of those investigations. Doing so patently prejudices those subjects. Lay people generally do not appreciate the distinction between a counterintelligence and a criminal probe. All the public knows, upon hearing remarks such as Comey’s, is that someone is under investigation by the FBI—which often means someone is guilty of a serious crime.
The director’s additional comments only exacerbated the problem: “As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.” No, as we’ve discussed, criminal assessments are not a standard part of counterintelligence probes. Counterintelligence is not geared to investigate crimes or build prosecutions; it collects information about foreign powers that may threaten American interests. It is not regular FBI procedure to scour foreign intelligence for criminal evidence. To the contrary, criminal prosecutions are often resisted because due process discovery rules could require disclosure of top-secret intelligence. There is simply an unremarkable, commonsense principle that always applies in any situation: if agents happen to find criminal evidence while they are legitimately conducting some other kind of investigation, they need not ignore that evidence; it may be (but not need be) turned over to criminal investigators and prosecutors.
By phrasing his testimony this way, Comey had to know that the average person would believe President Trump himself was under investigation by the FBI for complicity in Russia’s espionage operations to influence the campaign. And that is exactly what many Americans did believe. Comey’s testimony appeared to validate the explosive Times story from February about Trump campaign contacts with Russia—notwithstanding that Comey would later dismiss that report as “almost entirely wrong.”8 Indeed, the Times reported on the director’s bombshell March 20 testimony under the page-one headline “F.B.I. Is Investigating Trump’s Russia Ties, Comey Confirms.” Even as Comey was giving his testimony, Neera Tanden, president of the Center for American Progress, which heavily influences Democratic party messaging, tweeted (next to her “Resist” avatar), “The FBI is investigating a sitting President. Been a long time since that happened.” On the internet and throughout the country, the director’s stunning announcement was understandably and predictably interpreted as confirmation that Trump himself was under FBI investigation.9
Tellingly, the director later noted that he had “briefed the leadership of Congr
ess on exactly which individuals we were investigating and … told those Congressional leaders that we were not personally investigating President Trump.”10 He had done that, however, in the closed-session part of the Intelligence Committee hearing, out of public earshot. Members were obliged to keep that part of the proceedings secret. In the open hearing, with all of the media covering and all Americans as the intended audience, the impression unmistakably conveyed was that the president was personally under suspicion of involvement in a traitorous scheme.
Think about this from Trump’s perspective. He knew he had not conspired with Putin. After months of investigation, there was no evidence that he had done so. Whatever threads the FBI was following were sufficiently remote from Trump that the FBI director had told him, repeatedly, he was not a suspect. Yet, a monumental decision, in which the president was not consulted, had been made by Comey—in consultation with officials Trump had not appointed, at a Justice Department that had been a thorn in Trump’s side from Day One. The director would proclaim to the nation not only that there was an on-going FBI probe focused on Trump’s campaign, but also that criminal prosecutions were a distinct possibility. Trump had to wonder: what conceivable point could there have been in that announcement other than to cast suspicion on me?
Ten days later, on March 30, Trump called Comey to complain about the “cloud” over his presidency. Naturally, suspicions had intensified since the director’s testimony, impairing the president’s capacity to govern. Was this a significant problem for the president? Consider this: in 2019, even after Special Counsel Mueller’s investigation grudgingly concluded that there had been no Trump–Russia conspiracy, public polling showed that nearly half of all Americans nevertheless believed that Trump worked with the Kremlin to interfere in the 2016 presidential election.11 In their March 30 conversation, the president pressed the director on what the FBI could do to help “lift the cloud.” Comey yet again privately confirmed that the president was not personally under investigation; but he was recalcitrant in the face of Trump’s insistence that “We have to get that fact out.”
The director had gone public with the powerful suggestion that Trump was the principal subject of the FBI’s investigation, but would not go public with his assertion that Trump was not personally under investigation. That is indefensible. The latter position is justifiable only if the former disclosure is never made—either say nothing (always the best approach, and the one the rules counsel), or say everything, but you can’t create and foment a misimpression. In later testimony, the former director recalled that he and Justice Department officials (again, not Trump appointees) were “reluctant to make public statements that we did not have an open case on President Trump.” Comey rationalized that if such an announcement were made, and some evidence against Trump were to materialize, he (Comey) would be obliged to correct the record, causing even greater uproar and suspicion. Of course, this is what had happened when the director mishandled the Hillary Clinton investigation—first by going public with the evidence against an uncharged person, and then by very publicly reopening the investigation just days before the election, in order to correct the record.
Again, though, think about this from Trump’s perspective. It was not his fault that Comey’s handling of the Clinton situation—the decision to make improper, prejudicial statements, that spawned a perceived need to make damaging clarifying statements—had imploded. More to the point, Trump was president and Comey was his subordinate. It was the president’s call, not the FBI director’s, to decide what the public should be told about a counterintelligence investigation being done in support of the president’s national-security responsibilities. If Trump was willing to run the risk—a slight risk after so many months of investigation—that new evidence of Trump’s guilt might someday emerge, calling for a politically damaging correction of the record, how was it Comey’s place to countermand the chief executive?
Trump had to figure that Comey was not being straight with him: privately assuring him he was not a suspect, but insinuating otherwise in public. Was Comey lying to him? Was Comey’s reluctance to state publicly that Trump was not a suspect because the director hoped and expected that damning evidence would come to light? Did Comey believe Trump actually had conspired with Putin?
May 3 was the last straw. Comey again appeared at a congressional oversight hearing. He refused to comment on the Russia investigation beyond acknowledging the confirmation of its existence in his earlier testimony. When pointedly asked whether he had ruled out anyone connected to the Trump campaign, including the president, from potential criminal charges, the director declined to answer. This refusal to budge had the effect of reaffirming what he had said on March 20. In the public mind, Trump would remain a suspect who could eventually face prosecution for conspiring with Russia.12 Naturally, the president reacted angrily, lashing out against Attorney General Sessions over his recusal from the Russia investigation, which had rendered him unable to supervise Comey.13
How Not to Fire an FBI Director
The situation had become untenable. Trump decided that Comey had to go. That weekend, at his manse in Bedminster, New Jersey, the president dictated an angry letter to his staffer Stephen Miller. Never finalized or sent, the letter emphasized Comey’s assurances to Trump on three occasions that Trump was not a suspect; described the Trump–Russia allegations as “fabricated and politically-motivated”; rebuked Comey’s handling of the Clinton emails investigation and failure to hold leakers accountable; and insisted that Republicans, Democrats, and the public had lost trust in the director. The president also suggested that Comey had pleaded to keep his job at their January 28 dinner but that Trump had given him no guarantees—a strange bit of revisionist history: Trump was empowered to fire the director regardless of any previous assurances, and there had been no indication that Comey was on some sort of probation.
White House Counsel Don McGahn persuaded the president to hold off on his letter and let the Justice Department explain Comey’s termination. McGahn had met with Sessions and the newly confirmed Deputy AG, Rod Rosenstein, and knew they were supportive of Comey’s removal. Trump agreed, but in directing Rosenstein on May 8 to write an explanatory memo, he told the new DAG to include Comey’s refusal publicly to affirm private assurances that Trump was not under investigation. Rosenstein did not argue with the president, but he did not do as instructed, either.
Rod Rosenstein was a Trump appointee, but he was not of Trump World. The president did not know him. Trump likes résumés, and Rosenstein’s is impressive—Wharton School, Harvard Law, cum laude, editor of the Law Review, prestigious D.C. Circuit judicial clerkship, adviser to top officials in the Clinton Justice Department, work on Ken Starr’s Whitewater investigation. It was President Bush-43 who made him U.S. attorney for Maryland, but he proceeded to win over the blue state’s two Democratic senators, and President Obama retained him. For that reason, he was among the forty-six Obama-appointed U.S. attorneys who were still in their jobs when, toward the start of the new administration, they were directed to submit their resignations and make way for Trump appointees. Somewhat awkwardly, Trump then declined to accept Rosenstein’s resignation because, it turned out, his advisers had already settled on Rosenstein to be Sessions’s deputy at the Justice Department.
Rosenstein had well and carefully cultivated his reputation as an apolitical lawman. I am not a Rosenstein fan, but I don’t mean that as a dig—the country works much better when law enforcement is seen as a profession rather than a political calling. For purposes of understanding what follows, though, because Rosenstein’s reputational motivations cannot be divorced from his consequential decisions and sometimes erratic actions, it is important to grasp that he saw himself (with justification) as beloved by both parties, and he aimed to keep it that way. At a time when Trump nominees for top executive offices were extraordinarily difficult to move through the Senate with Republicans holding a razor thin 51/49 majority, Rosenstein breezed to confirmation
by the margin of 94 to 6.
Rosenstein is a deliberate, Washington creature. He agreed with the firing of Comey, but when controversy set in, he wanted it known that the firing was not his idea. And his agreement in Comey’s dismissal was rooted in the director’s unapologetic flouting of Justice Department guidelines in the Clinton emails case; it had nothing to do with Russia. Beltway Democrats and Republicans brayed that Russia’s interference in the campaign was very serious business, so Rosenstein wanted no doubt that he, too, thought it was very serious business.
Yes, he would write a memo to in support of Comey’s dismissal, but he would do it based on his own rationale—not Trump’s. Of course, if the boss tells you to do something, and you decide it’s a bad idea, you’re supposed to let the boss know that ahead of time, not just do it your way. But the Trump administration is, shall we say, untraditional in that regard. Rosenstein hadn’t been around long, but it was long enough to see that White House and Justice Department lawyers sometimes ignore the president’s suggestions—directives are taken as suggestions. Trump seems to prefer it that way: he is a non-lawyer who realizes his impulses need tweaking, the courts are hostile to him, and his subordinates are trying to steer him away from trouble; plus, proceeding by tweet and suggestion, rather than formal orders, gives him maneuvering room to blame subordinates when things go awry, as they tend to do.
So, Rosenstein would write the memo his way and hope Trump would come around once he read Rod’s paean to bipartisanship: celebrating the Republican and Democratic consensus (so wonderful! so rare in today’s Washington!) that Director Comey had wronged Hillary Clinton. The DAG inveighed: “The Director was wrong to usurp the Attorney General’s authority” and “to release derogatory information” about an uncharged person (Mrs. Clinton). Rosenstein being Rosenstein, his memo’s conclusion is slippery. He wouldn’t just come out and say that Comey should be fired. He pointed out that “the President has the power to remove an FBI director” and that the FBI under Comey had lost “public and congressional trust,” which it was “unlikely to regain” unless it had a director who “understands the gravity of [Comey’s] mistakes and pledges never to repeat them.” Then, Rosenstein pointedly noted, Comey refused to do this.14
Ball of Collusion Page 41
