February 23, 2017


The True Story of the Comey Letter Debacle (Bethany McLean, Feb. 21st, 2017, Vanity Fair)

Even more famous is Comey's dramatic hospital-room confrontation with members of the Bush administration, in early March of 2004, over the secret warrantless domestic-eavesdropping program, which caused a national furor when the press revealed its existence in late 2005. In what The Washington Post later called "the most riveting 20 minutes of Congressional testimony. Maybe ever," Comey told the story of how he, as acting attorney general, filled in for his boss, John Ashcroft, who was hospitalized. After refusing to re-authorize the program, which he believed was illegal, Comey discovered that other members of the administration were planning an end run to get an incapacitated Ashcroft to sign off on it in his hospital bed. Comey "ran, literally ran," up the stairs to prevent that, he testified. The next day he considered resigning.

"To know Jim Comey is also to know his fierce independence and his deep integrity," said President Obama when, nine years later, he nominated him to serve as F.B.I. director. "He was prepared to give up a job he loved rather than be part of something he felt was fundamentally wrong."

Well, yes. But did Comey really believe that the program was "fundamentally wrong"?

President Bush quickly gave his support to making changes to the program--changes that have never been disclosed publicly--and Comey stayed on as D.A.G. until August 2005, as the wiretapping program continued. The London newspaper The Guardian obtained a classified report about the incident, which made Comey's objections seem to be less broadly substantive and more about legal technicalities involving just one part of the program.

Many would argue that legal technicalities are critically important, but some of Comey's former D.O.J. colleagues carped to The New York Times that his actions had not been as heroic as they were portrayed. One observer cites Comey's willingness to say, "I know what's right," even when doing so causes potentially avoidable drama. Another person who knows Comey well says, "There is stubbornness, ego, and some self-righteousness at work." [...]

On July 5, Comey held the press conference in which he announced that agents had found thousands of e-mails that contained government secrets, all of which had traveled unsecure, unclassified channels on Clinton's private e-mail network. Nonetheless, he said, "we cannot find a case that would support bringing criminal charges," in large part because they did not find intent, which is a critical element of most criminal cases.

Comey certainly knew that the career prosecutors, who had been working hand-in-glove with the F.B.I. agents, would agree with the decision. But he made it clear he hadn't even informed the D.O.J., whose responsibility it is to decide whether to authorize an indictment, that he was holding a press conference. Lynch corroborated this, admitting that the D.O.J. had learned of the press conference only "right before." Indeed, some at the D.O.J. turned to CNN to find out what Comey was saying.

Plenty of Comey's longtime admirers were appalled that he had spoken at all, because by doing so he blew through several of the Justice Department's long-standing policies. "It was an unprecedented public announcement by a non-prosecutor that there would be no prosecution," says someone who once worked for Comey. The F.B.I. does not talk publicly about its investigations, and "it does not make prosecutorial decisions. Full stop."

"[Comey] has said he did not consult with anyone at the D.O.J. beforehand so he could say it was the F.B.I.'s recommendation," observes another former prosecutor. "But right there that is a massive act of insubordination."

Comey then, according to his critics, compounded his mistake by declaring Clinton's conduct and that of her aides "extremely careless." This was another breach of protocol. Neither prosecutors nor agents criticize people they don't charge. "We don't dirty you up," says Richard Frankel, who retired from the F.B.I. in early 2016 and now consults for ABC News. And Comey's choice of language opened another can of worms. Unlike other criminal statutes, which, as a rule, require intent, the Espionage Act does allow for prosecutions of those who display "gross negligence."

Those close to the case were also shocked by what Comey didn't say. For instance, he didn't point out that the "classified" e-mails had not been marked that way when they were sent or received, and didn't point out that all the e-mails were to people who work in government--not to outsiders who aren't supposed to receive such information. "He gave a very skewed picture," says one person involved in the case. "The goal has to be that people understand the decision, and it came out exactly the opposite."

How to explain Comey's omissions? "I don't think he was that well briefed," says another person involved in the case. "It's a function of being at the bureau and of Comey's personality. It is so easy to get insular there. And Comey is not someone who cross-examines his own people. . . . It came across like there was something specific, but there was nothing there."

Those who know Comey say that, while the decision for him not to recommend prosecution was an easy one, his unprecedented decision to speak about it publicly wasn't. Some believe he might have taken the public route even without the tarmac incident, in part because he worried that prosecutors at Main Justice, instead of bringing the investigation to a close, would dither.

There's also speculation that Comey's decision to criticize Clinton was influenced by his prior experience, from Whitewater to Marc Rich, with her and her husband. But sources close to Comey insist that isn't true, and that his decision to go into more detail was influenced by his desire to make people believe the process had been fair despite the appearance of impropriety. An F.B.I. source says that since the details of the investigation were going to come out, framed in hyperpartisan ways via congressional hearings and FOIA requests, Comey wanted to offer an apolitical framing of the facts first.

Critics, however, see in his decision a whisper of the Ashcroft hospital confrontation, with the dark side fully apparent. "This gets into speculation, but knowing Jim, he decides it is all totally f[*****]d up and that he has to save the department and he alone can do it," says someone who knows him well. "Megalomania kicked in."

Comey had put his years of public service and his sterling reputation on the line, but that did nothing to persuade Republicans about the fairness of his investigation, and they refused to let go of the matter. In a July 7 congressional hearing, an incredulous Representative Trey Gowdy (Republican, South Carolina) proceeded to grill him about Clinton's e-mail practices, statements under oath, and legal infractions, ultimately exclaiming, "Help the reasonable person . . . understand why she appears to be treated differently than the rest of us would be."

Congress asked Comey to testify again on September 12, but he reportedly declined. They asked again, on September 28. This time, he obliged, and confirmed that the F.B.I. would not reopen its investigation. No findings at that point "would come near" to prompting such a measure, he told the congressmen. Louie Gohmert (Republican, Texas) continued the Republican harangue: "[The F.B.I. has] never seen anything like this."

With the bureau's probity questioned by Gohmert and others, Comey sprang to the defense. "You can call us wrong," he said, "but don't call us weasels. We are not weasels. We are honest people and . . . whether or not you agree with the result, this was done the way you would want it to be done."

Agreeing to appear in front of the House Judiciary Committee about the investigation was yet another mistake, many believe, forcing Comey to answer questions he normally wouldn't have. Lamar Smith (Republican, Texas) asked him if he'd reopen the case if he found new information. "It's hard for me to answer in the abstract," said Comey, who was under oath. "We would certainly look at any new and substantial information."

Throughout the whole process it seemed like, for him, the investigation was primarily about his own reputation.

Posted by at February 23, 2017 9:09 AM