Monthly Archives: May 2018

James Comey vs. Donald Trump: An indictment in the form of a memoir

James_Comey_official_portrait (1)

Former FBI Director James Comey. Public domain image.

By Steve Sebelius

James Comey is a good lawyer, having received his law degree from the University of Chicago, served as a federal prosecutor in the Southern District of New York, then later as U.S. attorney in that same office. He finally rose to deputy attorney general, the No. 2 man in the entire Department of Justice.

We all know how his last job ended — fired as director of the Federal Bureau of Investigation, which news he learned from a TV set in the bureau’s Los Angeles field office that was tuned to CNN.

But more on that in a moment.

Comey’s newly released (and heavily promoted) book, A Higher Loyalty: Truth, Lies, and Leadership, is built like a good court case. The former prosecutor seeds the text with ideas that he will later call upon to prove to his jury of readers that the president of the United States in an insensate, incurious, narcissistic, insecure, possibly compromised bully more akin to a La Cosa Nostra crime boss than an American president.

Exhibit A: A former victim of schoolhouse bullying, Comey confesses later to becoming the tormentor himself. “In the face of the herd, our tendency is to go quiet and let the group’s brain and soul handle things,” Comey writes. “But by imagining the group has these centers, we abdicate responsibility, which allows groups to be hijacked by the loudest voice, the person who knows how brainless groups really are and uses that to his advantage.”

Sound at all familiar?

Exhibit B: Comey, who stands 6 feet 8 inches tall, admits to tiring of answering the question of whether he’d played basketball in college (he did not) by simply saying yes. He says he was so bothered by his seemingly innocuous lie, he wrote to the friends he had misled and admitted the truth. He didn’t want lying to become a habit and lose the ability to distinguish truth from falsehood. Those who do, he writes, “surround themselves with other liars. The circle becomes smaller and smaller, with those unwilling to surrender their moral compass pushed out and those willing to tolerate deceit brought closer to the center of power.” 

Exhibit C: Comey defends his prosecutions of Martha Stewart and I. Lewis “Scooter” Libby (recently pardoned by President Trump) on charges they lied to the FBI about selling stocks and leaking the identity of a once-undercover CIA operative, respectively. “People must fear the consequences of lying in the justice system, or the system can’t work,” he writes, adding later, “I would discover in the coming months that the pressures to bend the rules and to make convenient exceptions to laws when they got in the way of the president’s agenda were tempting.”

Exhibit D: Comey fought the use of torture by the CIA in the wake of Sept. 11, and in doing so, faced off with then-Vice President Dick Cheney and his staff. “They were driven by one of the most powerful and disconcerting forces in human nature — confirmation bias,” he wrote. “Our brains have evolved to crave information consistent with what we already believe. We seek out and focus on facts and arguments that support our beliefs.”

He might as well have been speaking about the American electorate and their absorption of news in 2016.

Exhibit E: When President Barack Obama selected Comey to head the FBI, the president told him: “I don’t want help from the FBI on policy. I need competence and independence. I need to sleep at night knowing the place is well run and the American people protected.”

After Obama had designated Comey as his choice, they had another meeting in the Oval Office, with the White House counsel present. “The president opened the conversation by explaining, ‘Once you are director, we won’t be able to talk like this.’ What he meant was that for more than 40 years, the leaders of our government understood that a president and an FBI director must be at arm’s length,” Comey wrote.

Things would soon change.

Exhibit F: Laughter, which Obama and President George W. Bush did. “Having a balance of confidence and humility is essential to effective leadership. Laughing in a genuine way requires a certain level of confidence,” Comey writes, “because we all look a little silly laughing; that makes us vulnerable, a state insecure people fear.”

Exhibit G: Listening. “To be effective at the FBI, I spent a lot of time listening, something we all struggle to do well. It is hard for leaders to listen well because it requires us to be vulnerable, to risk our superior position,” Comey writes. His exemplar? President Obama. “He was an extraordinary listener, as good as any I’ve seen in leadership. In various meetings with the president, I watched him work hard to draw as many viewpoints into a conversation, frequently disregarding the hierarchy reflected in seating arrangements — principals at the table, lower-ranked folks in chairs against the wall.”

Now, with the exhibits entered into evidence, Comey makes his summation to the jury.

  • Trump, in contrast to Bush and Obama, was self-centered, even after being told Russia had attacked the nation during the 2016 election. “What I found telling was what Trump and his team didn’t ask. They were about to lead a country that had been attacked by a foreign adversary, yet they had no questions about what the future Russian threat might be. Nor did they ask about how the United States might prepare itself to meet that threat.”
  • Trump was insecure. At a private dinner attended only by Comey and the president, Trump said he could make a change at the top of the FBI. “I need loyalty. I expect loyalty,” Trump told Comey. “This, of course, was not something I could ever conceive of Obama doing, or George W. Bush, for that matter. To my mind, the demand was like Sammy the Bull’s Cosa Nostra induction ceremony — with Trump in the role of family boss, asking me if I have what it takes to be a ‘made man.’ I did not, and would never.” And later: “Ethical leaders never ask for loyalty. Those leading through fear — like a Cosa Nostra boss — require personal loyalty.” It was after this dinner that Comey began a practice unique in his government service: writing contemporaneous memos to memorialize his conversations with the president, in the event he needed them later.
  • Trump doesn’t laugh much, if at all, in public. “…but I don’t know of another elected leader who doesn’t laugh with some regularity in public. I suspect his inherent inability to do so is rooted in deep insecurity, his inability to be vulnerable or to risk himself by appreciating the humor of others, which, on reflection is really very sad in a leader, and a little scary in a president.”
  • Trump speaks often and unrelentingly, perhaps to avoid disagreement. “As a result, Trump pulls all those present into a silent circle of assent. With him talking a mile a minute, with no spot for others to jump into the conversation, I could see how easily everyone in the room could become a co-conspirator to his preferred set of facts, or delusions.”
  • Trump asked for outcomes to investigations. The president told Comey in a private meeting, “I hope you can see your way clear to letting this go, to letting [former National Security Adviser Michael] Flynn go. He is a good guy. I hope you can let this go.” He also repeatedly complained about the “cloud” that the Russia investigation had laid upon his administration, implying that Comey could relieve him of that burden.
  • Trump fired Comey without so much as an email, with Comey out of town visiting the Los Angeles FBI office. And Trump exploded in rage when then-FBI Deputy Director Andrew McCabe (later also fired after Trump’s public complaints) allowed Comey to return to Washington, D.C., in an FBI jet, although he was no longer the director.
  • Trump lies without apparent conscience. “I see no evidence that a lie ever caused Trump pain, or that he ever recoiled from causing another person pain, which is sad and frightening,” Comey wrote.
  • We’re all to blame: “We all bear responsibility for the deeply flawed choices put before voters during the 2016 election, and our country is paying a high price: this president is unethical, untethered to truth and institutional values. His leadership is transactional, ego driven and about personal loyalty.”

Comey begins his book by asking the reader a reasonable question: Who the hell is he to deign to talk about ethical leadership? “Anyone claiming to write a book about ethical leadership can come across as presumptuous and even sanctimonious,” he acknowledges.

But in A Higher Loyalty, Comey compares and contrasts his own life, his own experiences and his own ethical compass against that of the president he so briefly and unhappily served. His builds his case painstakingly to prove that Trump is bereft of not just the qualities that Comey strove to develop, not just the qualities that his immediate predecessors possessed, but the qualities that a human being most needs to do the job of president.

How will the jury find? It has two long years to render its verdict.


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The director and the candidate: James Comey and the problem of Hillary Clinton’s emails


Secretary of State Hillary Clinton testifying in 2009. Public domain image.

By Steve Sebelius

There comes a point in former FBI Director James Comey’s new book — A Higher Loyalty: Truth, Lies, and Leadership — in which he concludes a self-examination of his investigation into Democratic presidential candidate Hillary Clinton’s emails by saying “But I also think reasonable people might we have handled it differently.”

Consider me that reasonable person.

There are many — Democrats primarily — who believe Comey’s actions in 2016 cost Clinton the election by providing Republicans and Donald Trump grounds to question her honesty. It’s never easy running for office while one is under FBI investigation.

First, let’s get a few things out of the way. Comey acknowledges there was never any indication in any of the emails his investigators reviewed that indicated Clinton or anyone else involved in those electronic conversations knew or suspected what they were doing was wrong or illegal. Everyone on the email chains had the security clearance (and a work-related reason) to know and discuss the information in question. Clinton did not lie to FBI investigators about what she’d done, at least not in a way that could be proven in court. And, finally, “no fair-minded person with any experience in the counterespionage world … could think this was a case the career prosecutors of the Department of Justice might pursue. There was literally zero chance of that.”

Second, it also must be said that Comey’s investigators found 36 email chains that discussed information classified as “secret,” and eight times in which they discussed information classified as “top secret” at the time the emails were sent. (“Secret” classification applies to information that would cause “serious” damage to national security if released, and “top secret” information is that which would cause “exceptionally grave” damaged to national security if released.)

That, Comey says, is something these officials should have known not to do. “Anyone who had ever been granted a security clearance should have known that talking about top-secret information on an unclassified system was a breach of rules governing classified materials,” he notes.

That was his dilemma during the 2016 election: Comey believed Clinton and her aides had behaved carelessly with classified information, but did not have sufficient information to sustain a successful prosecution. With the national attention fixed on the political race — and partisans from both sides waiting to pounce on the outcome — he was, as the bureau’s deputy director told him at the time, “totally screwed.”

The news conference

After a team had completed its review of all the emails that could be found (some had been lost in a server switch; other, supposedly personal, emails had been erased), Comey held a news conference.

Instead of simply referring the case to the Justice Department with a recommendation of no charges, Comey elected to excoriate Clinton and her staff for being “extremely careless” in their handling of information. The windup sounded like a grand jury would soon be meeting, but Comey instead ended by saying he’d recommended no charges.

Comey explains there are exceptions to the FBI’s policy of not commenting on cases, one of which is when the investigation has been in the public eye. (Although he admits there is a “powerful norm” that the bureau and the Justice Department should try to avoid any action before an election that could affect its outcome, a norm he’d repeatedly ignore.)

Comey further explains he was concerned that the bureau’s “reservoir” of credibility, filled slowly over years with painstakingly professional and through investigations, could quickly be drained with a tight-lipped referral.

“When we stand up, whether in a courtroom or at a cookout, and identify ourselves as part of those organizations [the FBI and the Justice Department] total strangers believe what we say, because of that reservoir. Without it, we are just another partisan player in a polarized world,” Comey writes. “The FBI must be an ‘other’ in this country or we are lost.”

Understandable, even reasonable. But what if Comey had instead said this: “The FBI has completed its investigation into Secretary Clinton’s use of a private server to send official government emails. We’re reviewed hundreds of documents and interviewed dozens of witnesses, including the secretary herself. We are now forwarding the case to the Department of Justice for review. Thank you.”

Surely, there would be critics. Surely, there would be claims of coverups, conspiracy and crimes. Surely, the FBI would be criticized.

But would the situation have been better or worse for Comey’s reservoir than it was with his approach?

“As I expected, people on both sides of the partisan divide in Washington were very angry,” he acknowledged. “Republicans were furious that I had failed to recommend prosecution in a case that ‘obviously’ warranted it.” And Democrats, we know, accused Comey of helping Trump, and would again closer to Election Day.

The election-eve letter

The matter rested, until, in an unrelated investigation of former Congressman Anthony Weiner’s creepy online conduct, FBI agents stumbled across hundreds of thousands of emails from Clinton’s private server, some of which agents believed they had not uncovered in the original investigation. (Weiner was at the time married to Huma Abedin, a top Clinton aide.)

The emails might change the conclusion of the earlier probe, Comey realized, setting up a key question: Should he inform Congress (he’d told lawmakers the case was closed) or remain silent, with the election just days away?

Obviously, the emails would have to be reviewed, which would require a search warrant for the laptop. But the timing was such that agents could not possibly review the newly discovered material before Election Day.

Comey chose to speak. His description of his options — “speak or conceal” — is a false choice in my view, primarily because he didn’t know at the time whether the emails were even relevant to the investigation or not, and as such, there was nothing definitive to say either way! Or, as a lawyer might say, the prejudicial effect of revealing the emails clearly outweighed any probative value in speaking.

Yes, there were some powerful arguments on Comey’s side. First, seeking the search warrant opened the circle of people who knew about the new emails wide enough that the story might very well have leaked. Second, Comey was concerned that if the emails did show prosecutable actions on Clinton’s part — but were not revealed until after the election — she’d be a tainted president, possibly subject to criminal process while in office. And third, failing to speak up might implicate Comey, the FBI and the Justice Department as partisans engaged in a coverup.

“To remain silent at this point, while taking the step of getting a search warrant to review thousands of Hillary Clinton’s emails … would be an affirmative act of concealment, which would mean the director of the FBI had misled — and was continuing to mislead — Congress and the American people,” Comey wrote.

But let me suggest a contrary point: Comey at that moment had no idea whatsoever what was in these newly discovered emails. (We’d later find none were relevant to the inquiry.) He couldn’t possibly know whether he’d misled anyone until his team reviewed them. And given the fact that revealing the case had been temporarily re-opened just days before voters went to the polls would unquestionably have an impact on the election, he could easily have justified remaining silent until there was something substantive to report.

“We made arguments against our arguments, but even with a dozen perspectives, we kept coming back to the same place: the credibility of the institutions of justice was at stake,” Comey wrote. Indeed. But how intact was that credibility after he potentially tainted the election, and then revealed there was nothing in the new evidence to change his earlier conclusion? Better or worse? Surely, he’d be criticized either way, but only in one way would he potentially affect the course of the election.

In fact, Comey was asked by one member of his team whether his action might help elect Trump. Wrote Comey: “’It is a great question,’ I said, ‘but not for a moment can I consider it. Because down that path lies the death of the FBI as an independent force in American life. If we start making decisions based on whose political fortunes will be affected, we are lost.’”

Comey acknowledged in testimony before Congress that the idea that his decision had an impact on the election left him feeling “mildly nauseous.” Indeed, it earned him the contempt of Democrats, and even — he says later — praise from Trump, who saw the first news conference as a help to Clinton but the late-season letter as a help to the Trump campaign.

Comey was generous enough to suggest reasonable people might disagree with his conclusion, and he should be extended the same courtesy in return. Surely, he is at pains to extensively document his motivations. And I am willing to concede that doing things the way I’ve suggested here would have left Comey no less totally screwed than he was for doing things his way. But given the unknowns in the Weiner laptop trove of emails, and the near-certainty of affecting an election just days away, a dose of old-fashioned, buttoned-down FBI probity might have served Comey better.


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