Published by The Lawfare Institute
in Cooperation With
Let me start with a disclosure: FBI Director James Comey is a personal friend. So feel free to dismiss, if you like, what follows as the rantings of a guy who doesn’t like to see friends put through the ringer. That said, the emerging bipartisan groupthink on Comey needs a big splash of ice cold water.
Over the last week, we have seen the announcement of an inspector general investigation of, among other things, Comey’s decisions on the Hillary Clinton email investigation. We have seen an angry meeting in which Comey refused to discuss the state of the investigation of Trump’s links to Russia. Democratic members of Congress vented at him for the supposed double standard that allowed him to talk about the Clinton investigation but not about this one. We have seen repeated calls for his resignation from all over the political map.
And speaking on Fox News Sunday, incoming Vice President Mike Pence conspicuously refused to say that Trump would not fire Comey when he takes office in a few days: “Well, you will have to ask [Trump] about that. I know it's been the subject of some commentary this week. . . . [Y]ou’d have to ask the president-elect. I know they’ve had conversations. And that will be a good question for him after January 20th.”
Jeffrey Goldberg perhaps best summed up the situation on Meet the Press when he quipped: “If I were doing P.R. for Comey, I would note that he's a uniter, not a divider. He's brought Republicans and Democrats together in a way that they don't get together anymore.”
So let me sound a note of dissent—several notes of dissent, to be precise—on Comey’s villainy. And let me emphatically dissent on the question of whether of whether he should be replaced as FBI director. Here are six thoughts in defense of Comey:
First, the notion that there was some great double standard in which Comey was willing to discuss in detail the Clinton email investigation yet now stays mum about allegations about Trump is wrong. There is no double standard; the comparison between the Clinton and Trump investigations is not even an apples-to-oranges comparison. It is comparing apples to orangutans.
The investigation of Clinton was, at the time Comey issued his detailed statement on it and talked publicly about it before Congress in July, a completed criminal investigation on which he had findings to deliver. By contrast, the investigation of the relationship between the Trump campaign and the Russians, assuming there is such an investigation (and I do so assume), is an ongoing one; what’s more, it’s an ongoing foreign counterintelligence investigation (FCI). Comey did not discuss the Clinton email matter until he had completed findings on that, so it’s no double standard for him not to discuss the Trump matter while it is still in play.
Moreover, the expectation that he would discuss an FCI investigation involving the Russians, even if it were complete, reveals a deep ignorance of what FCI is and how it works. These are matters about which the FBI simply does not comment publicly—ever. To confirm such an investigation would effectively confirm FISA surveillance against Russian targets. These investigations are often not discrete examinations of alleged misconduct but long-term monitoring of foreign intelligence activity against the United States. The only circumstances in which such investigations become public are indictments and leaks (which are rare in the FCI space). The idea that this or any other FBI director is going to publicly discuss this sort of investigation—or that a closed Congressional meeting offers sufficient protection from public disclosure—is laughable.
Second, even more laughable is the notion, implicit or explicit in some of the criticism, that Comey was somehow seeking to aid Trump or injure Clinton in the way he handled the email and dossier matters. Remember that Comey succeeded during the campaign in enraging both sides. Republicans were furious at his judgment that Hillary Clinton had not committed any prosecutable offenses. The Democrats were furious that he cleared her while simultaneously excoriating both her and her team as “extremely careless.” Democrats were enraged that Comey informed Congress shortly before the election of the reactivation of the matter. Republicans slammed him for announcing days later that no evidence of wrongdoing had emerged. If the mark of a fair deal is that all sides are unhappy, then Comey has been a model of fairness.
The idea that he sought to assist Trump during the campaign, or seeks to assist him now, against allegations of ties to Russia is even more absurd. I have not asked Comey how he voted in the election and never would. But consider the almost-daily reports, carried by multiple newspapers, of the anxiety within the intelligence community about Trump. What sane FBI Director wouldn’t be anxious in Comey’s shoes? What sane FBI director would not be concerned about being part of an interagency process run by General Flynn, a man who famously sat beside Vladimir Putin at an RT dinner? RT, recall, figured prominently in the intelligence community’s report on Russian interference in the U.S. election. If you believe, as I do, that Comey probably knows a great deal more than we do about the reality of any Russian kompromat file on Trump and any untoward contacts between Trump forces and Russian operatives, what on earth would possess him to bury that information in order to help a compromised and less-than-stable man become his boss?
Comey may have erred back in July in discussing the Clinton email findings and in informing Congress of the investigation’s reinvigoration in October, but to now attribute base or partisan motives is more than baseless. It’s silly.
Third, the question of whether Comey did, in fact, err back in July and in October is a very complicated one in my view, one that Jack Goldsmith and I treated in some depth at the time and on which I think criticism is warranted. As we noted then, “Comey probably erred in testifying about his decision [in July]. In his initial public statement, he had total control over what he said. In his subsequent live testimony, however, members drew a great deal more out of him. It was a mistake to let them do so.” He “compounded that mistake . . . by allowing so many of the underlying documents in the investigation to become public.” Because of the statement, the testimony, and the documents, “the flood of material about Clinton and her emails created an expectation that everything the FBI did would be discussed in public.” That expectation proved consequential when Comey then felt obliged to keep Congress abreast when the investigation reactivated shortly before the election.
But note on this point that very few of the people who are so angry at Comey now expressed any of that anxiety back in July, when he actually delivered his comments on the Clinton email matter and made the commitment to keep Congress up to speed if things changed. I was actually one of the few people who raised the question of the propriety of what Comey was doing at the time, though I did not dissent from his action. Here’s what I wrote:
I think it's important to stress that this is really not the way we want major investigations to be closed out in the future.
There is something horrible about watching a senior government official, who has used the coercive investigative capacities of the federal government, make public judgments about a subject's conduct which the Justice Department is not prepared to indict. There is something even more horrible about a hearing in which individual members of Congress feel entitled to pick over the details of that conduct, asking about whether specific questions were asked by the FBI of specific witnesses and subjects and asking whether specific lines of inquiry were followed.
As a general matter, when prosecutors and investigators decline to indict someone, we don't want a report, much less congressional oversight of the unindicted conduct. We want them to shut the heck up.
This point is rooted in important civil liberties concerns. We don't give the FBI the power to investigate people so that it can report on their characters or behavior, so that the FBI director can pronounce on the truthfulness of their public utterances (which Comey endeavored not to do and yet inevitably did repeatedly simply by reporting his findings). And we don't give congressional committees the power of oversight, generally speaking, so that they can review individual prosecutorial decisions by flyspecking the details of the conduct of particular investigations vis a vis individual subjects. We give the FBI these powers so that it can investigate crimes. And if the Justice Department is not going to prosecute someone, it generally has no business talking about the conduct of that person's affairs.
This was a very lonely position at the time. The vast majority of people who are today calling for Comey to be flayed in public with an iron comb were perfectly content then to dive into the substance of what he said, either to declare that he had “cleared” Clinton or to delve into the facts he reported in order to condemn him for not recommending her indictment. It may well be—and in retrospect I tend to believe—that the right answer was for Comey to say nothing except that the Clinton email investigation was complete. But even I did not go that far at the time, and I can think of only a few people who said any such thing in public. If you’re not one of those people, have a little humility about how much outrage to gin up now. And understand that it makes zero sense to be furious that Comey will not publicly discuss a highly sensitive ongoing FCI investigation involving an adversary foreign power because he then discussed what he thought was a completed criminal investigation on which he could put matters to rest. If you think he made a mistake in commenting on a case before, the way to fix that now surely is not to comment on another case.
Fourth, to whatever extent Comey erred, he erred in a public fashion about which he was entirely up front and for which he has been willing to be held accountable. Think about that for a minute. In the era of Trump, do we really want to get rid of the people who are willing to speak the truth as they see it in circumstances in which they know they will brave a firestorm by doing so? Do we really want an FBI director who will, instead of taking responsibility for his conclusions, whisper them in the ear of a sympathetic journalist as a “source familiar with the investigation”? Do we really want to send the message—even as Trump is denying the reality of Russian intervention in our election and we desperately need independent and serious investigation of precisely what happened—that if you diligently investigate a matter to conclusion and forthrightly report your findings in the fashion you believe (perhaps erroneously) is demanded by your obligations to the public and Congress, that we will have your head?
To ask these questions should be to answer them.
Fifth, not everyone involved in this episode behaved in such a forthright fashion here, and the comparison between Comey and certain other key actors bears some emphasis. Jack and I wrote back in October about the ass-covering behavior of Attorney General Loretta Lynch and Deputy Attorney General Sally Yates:
there’s an elephant in the room alongside all these DOJ officials who are clucking about the FBI director’s having gone rogue: Attorney General Lynch, having been consulted ahead of time, let him do it.
Lynch could have ordered Comey not to send the letter. She declined to do that, and instead acted in a manner that minimized her own responsibility, as the head of the Justice Department, for what Comey did.
This is not the way the matter is playing in the press. Many news stories over the weekend, citing anonymous Justice Department sources, suggested that Comey acted contrary to Justice Department wishes. The idea is that the DOJ was somehow helpless to prevent an out-of-control investigator from meddling in a presidential campaign with actions undertaken either to gratify Comey’s ego and arrogate power and responsibility to himself or to help Donald Trump—or because Comey just couldn’t help himself.
But that’s not how the Justice Department works, and that’s not what happened here. If you think what Comey did was beyond the pale, Lynch does not get to escape accountability for the action.
The Washington Post later reported that Lynch and Yates never even spoke to Comey directly about his impending decision to send the letter. They let staff handle the whole thing. And they also, it turns out, shared Comey’s concerns about how the public would react to leaks that they had sought to keep information from Congress:
Justice officials decided that neither Lynch nor her deputy, Yates, should order Comey to not send the letter. They were not sure how Comey would respond to such a command. And they too feared leaks. Lynch and her advisers were nervous about how it would look if people found out that she, a Democratic presidential appointee, told Comey to keep secret from Congress a new development in the Clinton investigation.
Instead, they tried to convince Comey that he had never promised to update Congress at every turn. He had merely said he would “look at” any new information in the case.
When that did not work, they made one last effort to contain the damage. Justice officials wanted Comey to simply say that he had new information that might be related to the Clinton probe, and to make clear the FBI did not know whether the new material was significant.
Remember that Comey was in the position he faced, in the first instance, because Lynch had, months earlier, let Bill Clinton walk onto her airplane in Los Angeles and have a chat just as the investigation was finishing up—thus utterly compromising herself. So having made Comey central to the public debate, Lynch now made a deliberate decision to let him do as he pleased and take the heat for it.
Comey may well have too willingly fallen on this particular grenade, in other words, but the Justice Department senior leadership was knowingly let him do it and ran fleeing from the grenade to a waiting press core eager to hear—on background, of course—about how Comey was violating long-standing Justice Department policy. It’s the perfect Washington outcome: The attorney general got all the benefit of Comey’s action and came out looking like his victim and largely escaping scrutiny in the aftermath.
Let me here venture the modest suggestion that her conduct was not wholly honorable.
I actually welcome the inspector general investigation, in part because I suspect we have a great deal to learn about the interactions between the bureau and Main Justice during this episode—none of it flattering to the way senior Justice Department officials conducted themselves. To be sure, Comey will have some things to answer for too in that probe, particularly the grotesque leaking from the New York Field Office on matters related to the Clinton Foundation. But I suspect we will learn a lot less of interest about the Comey’s decisionmaking, which has been very public, than we will about those on the other side of Pennsylvania Avenue.
Sixth and finally, I want to reiterate a point that Susan Hennessey and I made immediately after the election: Replacing Comey would be a disaster for the country. “Whatever you think of Comey’s judgment or conduct during the campaign,” we wrote, “his actions have unequivocally demonstrated political independence from his political bosses, as he has in the past. And that is exactly what we will need from the FBI in the coming years.”
Don’t kid yourself that there is somebody out there whom Trump is likely to appoint and the Senate is likely to confirm about whom you could honestly write those words.
Don’t kid yourself on another point either: Comey will not resign; if we’re going to get a new FBI director, he’s going to have to be fired.
So ask yourself this question: Do you really want Donald Trump to fire the FBI director for a set of good faith judgments about two high-profile criminal and FCI investigations in which Trump has direct personal interests and to replace him with someone less independent?
I didn’t think so.