The president liked Rosenstein’s memo as far as it went, but he balked at its failure to include what he’d told Rosenstein to include—what was important to Trump. He directed Miller to write a short cover letter. In it, Trump accepted what was spun as the Justice Department’s recommendation that Comey be removed, but he pointedly stressed what Rosenstein had omitted: before the cock crowed, Comey had three times denied the president was under investigation.15
I have met Donald Trump once. At the urging of his friend Rudy Giuliani (who hired me as a prosecutor all those years ago—a little before he hired Jim Comey), I attended a meeting with candidate Trump to discuss radical Islam, terrorism prosecutions, immigration enforcement, and border security. Mr. Trump could not have been more gracious to me. It was a good meeting, he asked very good questions, and—in that small group—he was charming, solicitous, funny, and unpretentious. I could see why people like him. Whatever “it” is, he’s got it.
Of course, I was there to try to help him. Unfortunately, the president has another side, often on unsightly display toward people he has decided are enemies. In many ways, this is understandable. Many of Trump’s opponents are enemies. They self-identify that way. They want to be understood that way because it endears them to legions of Trump enemies for whom Trump opposition is less a substantive position than a tribal affiliation or cultural aesthetic. TDS—Trump Derangement Syndrome—is not a quip, at least not always. It’s a real thing. If massive numbers of people reacted to me that way, I hope I’d keep Christian compassion at the front of my mind, but I’m sure I’d be bitter about it.
The president gets worse than bitter. He can be vindictive and cruel. That’s how he treated Jim Comey. I’ve always liked Comey even while often disagreeing with him, so you could say I’m biased. You might also figure: Comey was trying to take the president down, his behavior since he was fired is that of a woke anti-Trump partisan, and if Trump stuck it to him, he deserved it. Moreover, Trump has been Trump for seventy-three years and it got him to the White House, so who the hell am I to say how he should conduct himself? Nevertheless, how you treat someone—including, and maybe especially, someone who has crossed you—says more about you than it does about the someone. In his understandable exasperation over Comey’s machinations, Trump lost perspective. He decided it wasn’t enough to fire Comey; he needed to humiliate Comey. The result resulting moves made the president look awful, spooked Rosenstein, and resulted in the appointment of a special counsel. In other words, Trump’s political enemies got exactly the monitor and impeachment investigation that the insurance policy concept was designed to achieve.
The president rejected a subordinate’s plea that Comey be permitted to resign rather than be fired. The director was given no notice of his immediate termination. Trump did not address him man-to-man, superior-to-subordinate. The White House waited to pull the trigger until after the director had flown across the country, where he was scheduled to speak to agents at the Los Angeles field office about the FBI’s mission—a part of the director’s job at which Comey was peerless. While there, in front of other people, Comey learned he’d been terminated from television news reports. It was so surreal, he thought it was a gag. There was not even the courtesy of a curt phone call. It was an indecent way to remove a subordinate, particularly one who, regardless of the president’s righteous frustration, had served the United States well in many capacities over many years.
Unfathomably, the president picked May 10, the day after firing Comey, to host top Russian diplomats at the White House—Ambassador Kislyak and Putin’s longtime Foreign Minister Sergey Lavrov. For the consumption of these officials—operatives of an anti-American regime that persecutes dissenters—Trump gloated: “I just fired the head of the FBI. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off.”16
Thus did the president not merely fail to grasp that, as between the Russians and Jim Comey, Comey is not the enemy. Trump also created evidence that could be used against him in an obstruction investigation: asserting that by firing Comey, he had relieved the pressure of the Russia investigation. To be clear, I am not claiming the president actually meant what these remarks have been portrayed by Trump’s opposition as meaning, namely, that he fired Comey because he was afraid the director was about to nail him for colluding with Russia in an espionage conspiracy. Trump clearly meant he had been under a cloud of suspicion due to the disingenuous way in which Comey was publicly framing him as the culprit in what Trump saw as a hoax. But if I may go lawyer on you for a moment: If you don’t want to be accused of obstructing an investigation of your alleged collusion with Russia, don’t invite Russia’s top operatives over to the White House to gloat over firing the FBI director who is investigating Russia, and then add for good measure that you booted him to take the heat off.
See, not that hard: If you don’t want a meritless investigation against you to continue, then don’t giftwrap reasons to continue it.
On Comey’s firing, the president, his advisers, and especially Rosenstein had badly misdiagnosed the Democrats. They figured that Rosenstein’s memo—so solicitous of Mrs. Clinton, so respectful of Democratic as well as Republican rebukes of Comey—would be applauded by Democrats, who blamed the former director for Clinton’s defeat. It had apparently escaped their notice that Democrats had moved on from Hillary. Inciting anti-Trump derangement was now the order of the day. After Trump was elected, Comey had made himself useful in that effort, particularly in his March 20 testimony. Whatever contempt Democrats might silently harbor for Comey, the president’s firing of him presented a political opportunity to accuse Trump of obstructing the Russia probe—a tack that seemed a lot more promising than the Russia probe itself. The president, Democrats said, must’ve feared that the FBI director was about to expose a corrupt Trump–Putin conspiracy.
The fierce Democratic reaction sent Rod a-reeling, anguished by such taunts as this one by Senator Christopher Murphy (D., Conn.): “You wrote a memo you knew would be used to perpetuate a lie. You own this debacle.” Meanwhile, thrown by the unanticipated blow-back, Trump White House officials publicly shifted all blame to Rosenstein. Vice President Pence was insistent that Trump had simply “accept[ed] the recommendation of the deputy attorney general and the attorney general to remove Director Comey.”17
This administration ploy simply whetted the opposition’s appetite. Democrats and their media allies goaded Trump: not only was the administration misrepresenting the true reasons for Comey’s dismissal, the big bully himself was hiding behind the Justice Department. Never one to leave a bait behind, the president proceeded to tell NBC’s Lester Holt that the decision was wholly his own, not one for which he relied on his subordinates. Comey was a “showboat” and a “grandstander” who had plunged the FBI into “turmoil,” the president said, so Trump decided to replace him with “somebody that’s competent.” Upon deciding “to just do it,” Trump added, “I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should have won.’”
Could it possibly have been worse for Rosenstein? He had put himself out there by writing a memo that was not his idea—before our eyes, he seemed to be shifting with the wind from proud volunteer Comey executioner to reluctant draftee. Now, the president was pulling the rug out from under him, saying the memo for which he was being filleted didn’t matter anyway. It had all been for naught.
Leaking and Obstruction
The president continued careening. In the early morning of May 12, he tweeted, “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press.”18 You have to hand it to Donald Trump: Not many presidents, while being stridently accused of obstructing an investigation, would flip right to the Watergate page in the playbook. Weeks later, the president would finally concede that there were no White House recordings. But Trump being Trump, he
could not bring himself to say he was just lashing out in a fit of pique; he stressed that he did not have any recordings—implying that maybe Comey was secretly recording him. (So, I guess his original tweet was to warn Comey about … Comey—or something.)19
As it happened, the former director was recording the president, but not electronically. He had done it the old-fashioned way. Comey did not trust Trump and thought the president would lie about their conversations (which, in the way of the jilted, he became bolder about telling everyone once he’d been cashiered). Thus, each time Comey had any meeting with Trump, he wrote a memorandum immediately afterwards—to serve as his aide-memoire, as well as potential evidence against Trump if there were ever a criminal charge or an impeachment process.20
The president’s suggestion that Comey would start “leaking to the press” soon had Comey responding … with a leak to the press. At an Oval Office meeting on February 14, the day after Trump fired his friend and ardent supporter General Flynn, the remorseful president told the director, “I hope you can see your way clear to letting this go, to letting Flynn go.” Comey immediately wrote a memo documenting the statement. Now, knowing that Trump was being accused of obstructing the Russia investigation, Comey poured fuel on that fire by leaking his memo, which he realized would be reported as an attempt by the president to obstruct the Flynn investigation. He hoped that the leak would prompt the appointment of a special counsel. To investigate exactly what is unclear.21 But a special counsel would be the new iteration of the insurance policy: a watchdog overseeing the man Comey saw as the unfit president so regrettably elected by the benighted voters—a prosecutor who would dig up enough dirt to make Trump un-re-electable in 2020, and maybe get him impeached before that, even if there was no prosecutable crime. Comey shared the memo of his conversation with his friend (and mine) Columbia Law School Professor Dan Richman, who provided it to The New York Times at Comey’s direction.
This was unseemly conduct on Comey’s part. Ironically, in the section of the then-director’s two-page memo right before he quotes Trump asking him to go easy on Flynn, Comey describes a discussion in which he quotes himself emphatically agreeing with the president that the leaking of sensitive government information is malignant. (“I said I was eager to find leakers and would like to nail one to the door as a message.”)
Put aside that the FBI does not appear to have done much to address the tidal wave of classified leaks in the first months of the Trump administration. Leak cases, after all, are tough to make: Too many people in government are cleared for access to sensitive information, and the Justice Department appropriately resists pressuring journalists to reveal their sources. The point is that no one knows better than Jim Comey that it is indefensible to leak a private exchange between the FBI director and the president of the United States. It does not matter how poorly the director feels he has been treated. Nor does it matter that the director thinks he has a higher calling—that the rules against leaking must yield to the purportedly greater good of exposing roguish presidential behavior, in the hope of securing a special counsel appointment (just like the Justice Department rules against public comment on the evidence against uncharged people must yield to the former director’s subjective sense of the public’s right to know). If everyone is a law unto himself, then there is no law; there is anarchy.
I don’t see why anyone is offended that Comey made notes of his conversations with Trump. Trump has made a number of explosive allegations about Comey; Comey sensed that the president might do that, and of course he wanted to protect himself. And since he was under no duty to make any notes, there is no merit in the complaint that he chose to make notes of his conversations with Trump but not Obama. He trusted Obama but not Trump. That was his prerogative. It is a problem, though, that the director thought of the notes as his own property. This was government property. The information he had access to and conversations he was privileged to participate in flowed from his position of public trust, and nothing else. He was not merely a private citizen sharing his personal thoughts with the Paper of Record. Even after an official leaves government service, fiduciary duties continue to obtain.
It was obvious that some of the information in the memos could be classified—and, in fact, after Comey left the government, the Bureau assessed that a number of his memos did contain classified information. During the former director’s tenure, the Justice Department prosecuted General David Petraeus for mishandling classified intelligence. Among the species of information described in the indictments were notes of Petraeus’s conversations with President Obama. When a high-ranking national security official is having a business-related conversation with the president, the specter of classified information always hovers. Many of the topics that naturally come up in such conversations are presumptively classified by executive order. All that said, the summary of the Trump-Comey meeting about Flynn is not classified.22 That does not mean it was appropriate for Comey to disseminate it outside the government. Less than a week before he was fired, Comey told a Senate committee that there would be “severe consequences” if he found out FBI agents had leaked investigative information.23 I don’t think an agent caught sending The New York Times interview notes from a conversation with a witness would have lasted very long in Comey’s FBI. Moreover, even when information is not deemed classified, all executive officers know that the president has a legally recognized confidentiality privilege covering communications with subordinates. It is the president’s privilege to invoke. It was wrong for Comey to share a privileged conversation without the president’s approval—even if Donald Trump’s many detractors laud him for doing so.
It is also wrong knowingly to create a misimpression. The patent point of leaking the memo was to suggest that Trump had already obstructed the Flynn investigation, and therefore the firing of Comey ought to be seen, through that lens, as an obstruction of the Russia investigation—or, at least, as reasonable enough grounds to suspect obstruction that a special counsel should be appointed to investigate. Comey, however, knew full well that Trump had not obstructed the Flynn investigation.
Put aside that Trump had the power to shut down the Flynn investigation, that he never did, and that Flynn was eventually convicted of making false statements. On their face, Trump’s statements to Comey were not obstruction—he did not order Comey to take any action; he said he hoped Comey would let the Flynn matter go. The director obviously did not feel pressured; he said he ignored Trump. If there was an ongoing investigation of Flynn, Trump’s statements had no effect on it. Furthermore, the president has the constitutional authority to weigh in on the merits of an investigation. Again, all executive power in our system is vested in the president. Every day, in federal districts all across the country, agents and prosecutors weigh whether investigations should be continued. When they do that, they are exercising the president’s power. It is nonsensical to suggest that the president himself cannot exercise that power.
In addition, if Comey had believed he witnessed a crime, he would have been obliged to report that fact. He did not. In the three months between February 14, when Comey spoke with Trump about Flynn, and May 9, when Comey was fired, the director assured the president that he (Trump) was not under investigation. Plus, in his May 3 testimony (again, nearly three months after the Flynn conversation), the director told a Senate committee that he had never had an experience in which he had been ordered (at least by the Justice Department) to shut a case down for political reasons.24
Rod Rosenstein’s Resistance
Such gripping pathos. Rod Rosenstein grousing that Trump had used him. Rosenstein remorsefully wishing that Comey, whom he’d just portrayed as mutinous and incorrigible, was still running the FBI so the admiring Rod “could bounce ideas off him.” The distraught deputy attorney general unsure of what to do: Maybe wire up against the president? Maybe try to round up enough cabinet officials willing to say Trump was loony to the point of incapacity, for purposes of invoking the 25th amend
ment?
Maybe appoint a special counsel?
After over a year of Justice Department stonewalling, The New York Times had the story last September.25 Dazed by the harsh partisan reaction to his admirably clement bipartisan memo in support of the firing-of-Comey-that-was-absolutely-not-my-idea, a “conflicted, regretful and emotional” Rod Rosenstein spent the days that followed grappling with the matter of most urgency to the United States of America: how to restore the reputation of Rod Rosenstein. In the end, he decided to appoint as special counsel a Beltway eminence, Robert Mueller, as has been exhaustively documented. (Trust me, I’m exhausted.) But not before Rosenstein flirted with some ideas that were … I think the technical term is … bonkers. When this was revealed, he issued a weaselly non-denial denial repudiating his weasel moves:
The New York Time’s story is inaccurate and factually incorrect.… I will not further comment on a story based on anonymous sources who are obviously biased against the department and are advancing their own personal agenda. But let me be clear about this: Based on my personal dealings with the president, there is no basis to invoke the 25th Amendment.26
Let’s parse this.
The Times story “is inaccurate and factually incorrect.” Rosenstein wouldn’t say exactly what was wrong in the report. He was careful not to say that the gist of the report was wrong—he just figured you’d hear it that way if he sounded indignant enough.
Ball of Collusion Page 42
