Deep State

by James B. Stewart

  Comey wasn’t exactly a clone of Mueller: Robert Swan Mueller III came from a far more affluent background, born in New York City in 1944 into the East Coast establishment. His father captained a navy submarine chaser in World War II before becoming a successful DuPont executive and stressed the importance of honor, principle, and public service to his son. As Mueller told the author Garrett Graff, “You did not shade or even consider shading with him” when it came to the truth. Mueller followed his father to St. Paul’s for boarding school and then Princeton, where he played varsity lacrosse.

  By contrast, Comey’s grandfather was a patrolman in Yonkers, New York. His father sold oilcans to gas station operators and later scouted gas station locations for an oil company. Money was tight. After the family moved to suburban Allendale, New Jersey, when Comey was in fifth grade, he was bullied and felt like an outsider at his new school.

  When he was a senior in high school, an armed intruder broke into their house while he and his younger brother were home alone. The man held them at gunpoint while ransacking closets and drawers and then locked them in a bathroom. The boys managed to escape through a window, only to be captured again outdoors. Fortunately, the sounds attracted a neighbor and his dog, and Comey fled back into the house and called the police.

  The gunman was never found, and the terrifying incident haunted Comey for years. But his survival instilled an appreciation for what mattered in life—not wealth or recognition, but “standing for something. Making a difference,” as he later put it.

  In this regard, he and Mueller were closely aligned. In what Mueller has repeatedly described as a formative experience in his life, a lacrosse teammate, David Hackett, a year older than Mueller and someone he admired intensely, volunteered to serve in the U.S. Marines following graduation. Hackett was killed in Vietnam in 1967 during a heroic effort to rescue fellow marines trapped by an ambush, which only intensified Mueller’s resolve to follow his example by enlisting.

  Mueller underwent intensive training in Ranger School and was deployed to Vietnam in 1968. Even in the jungle, he shaved every day and made his bed. He was wounded by a gunshot to the thigh; after recovering, he returned to combat duty before being transferred to the Pentagon. He received numerous awards, including a Purple Heart and a Bronze Star.

  “Perhaps because I did survive Vietnam, I have always felt compelled to contribute,” Mueller told Graff, much as Comey’s brush with death inspired a similar ambition.

  For both men, the importance of integrity has been a recurring theme. As Mueller told graduates of the College of William & Mary, Comey’s alma mater, in 2013, “As the saying goes, ‘If you have integrity, nothing else matters. And if you don’t have integrity, nothing else matters.’”

  He continued, “The FBI’s motto is Fidelity, Bravery, and Integrity. For the men and women of the Bureau, uncompromising integrity—both personal and institutional—is the core value.”

  That Mueller himself had tried to recruit Comey to run the FBI spoke to the deep bonds they’d forged while Comey was at the Justice Department. They weren’t especially friends and never socialized together (it wasn’t clear to Comey that Mueller socialized with anyone apart from his family). But they shared something deeper, something Mueller had witnessed firsthand at the bedside of an ailing attorney general, John Ashcroft. It was the same quality that Comey had almost instantly perceived in Mueller, and why it was Mueller whom Comey had summoned to Ashcroft’s hospital room on a fateful night seven years earlier.

  Nothing had done more to solidify Comey’s reputation for a willingness to do what he believed was the right thing pursuant to the law, no matter what the political consequences, than his swift and decisive actions as acting attorney general in March 2004, less than three years after the 9/11 terrorist attacks had led to a drastic revision of antiterrorist tactics, including warrantless government surveillance of the phone and email records of countless U.S. citizens.

  Comey was U.S. attorney in Manhattan soon after the attacks, and he’d often walked by the ruins, watching firefighters and cleanup crews hard at work under dangerous conditions. He knew the importance of the government’s antiterrorist efforts. At the same time, he understood the importance of civil liberties.

  After Comey was appointed by President George W. Bush as deputy attorney general in 2003, Justice Department lawyers convinced him that the National Security Agency’s surveillance program, code-named Stellar Wind, had no lawful justification. It plainly violated a law passed by Congress that strictly limited electronic surveillance within the United States. Jack Goldsmith, who headed the department’s Office of Legal Counsel, called Stellar Wind “the biggest legal mess I’d seen in my life.”

  The program was so sensitive that it had to be renewed every forty-five days, with the latest deadline, March 11, fast approaching. Even though it had routinely been authorized, Comey concluded that the program had to be stopped, or at least substantially modified, to comply with existing law.

  On March 1, Comey discussed his concerns with Mueller, someone cleared to discuss top secret national security information and in whom he had developed a deep sense of trust. In Mueller, Comey had found a kindred spirit, someone whose reverence for the law—the primacy of the law—matched his own.

  At his confirmation hearings to become deputy attorney general, Comey had been asked how he would handle politically sensitive or controversial investigations. Comey had responded, “I don’t care about politics. I don’t care about expediency. I don’t care about friendship. I care about doing the right thing. And I would never be part of something that I believe to be fundamentally wrong. I mean, obviously we all make policy judgments where people disagree, but I will do the right thing.”

  Comey’s wife, Patrice, had taped that excerpt to their refrigerator door.

  Not caring about politics didn’t mean that Comey held no political views. He’d been a lifelong registered Republican, he’d been appointed by a Republican president, and he’d donated to John McCain’s and Mitt Romney’s presidential campaigns (though he never publicly revealed how he voted).

  Mueller had made similar statements on numerous occasions. As he said in a speech to the American Civil Liberties Union—a frequent critic of the FBI generally and Mueller in particular—in 2003, “Like those before us, we will be judged by future generations on how we react to this crisis. And by that, I mean not just whether we win the war on terrorism, because I believe we will, but also whether, as we fight that war, we safeguard for our citizens the very liberties for which we are fighting.”

  As Comey saw it, Mueller’s “whole life was about doing things the right way.” Mueller was immediately sympathetic to Comey’s concerns.

  Comey briefed Ashcroft on the same issues on March 4 over lunch in Ashcroft’s office. Ashcroft agreed the program needed to be fixed before it could be extended. But that afternoon Ashcroft collapsed in pain, suffering from acute pancreatitis, and was rushed to George Washington University Hospital, where he was placed in intensive care. Comey was named acting attorney general and was now responsible for approving any extension of Stellar Wind.

  Comey’s position had stirred intense opposition within the White House, especially among defense hawks like Vice President Dick Cheney and his allies, who seemed determined to keep the program intact and operational at any cost. In one discussion at the White House, Cheney had looked directly at Comey and said, “Thousands of people are going to die because of what you are doing.”

  On the evening of March 10, Ashcroft’s chief of staff called Comey to report that President Bush had just called Ashcroft’s hospital room, where his wife, Janet, told the president he was too ill to speak; he’d just had emergency gallbladder surgery. In that case, Bush told her, he’d send the White House counsel, Alberto Gonzales, and his chief of staff, Andrew Card, to the hospital room to discuss a matter of vital national security.

  Everyone
knew what that must be about—the extension of Stellar Wind. Bush was doing an end run around Comey.

  Comey told his driver to get him to George Washington University Hospital as fast as possible, and the two raced through Washington traffic with emergency lights flashing. While still in the car, Comey called Mueller, who was at a restaurant with his family. Comey wanted Mueller there as a witness.

  Comey reached Ashcroft’s room before the White House delegation. Janet Ashcroft was holding her husband’s limp hand. His skin looked gray, and he didn’t seem to recognize Comey. Comey nonetheless told him what was happening and why he was there.

  Outside the room were half a dozen FBI agents, there to protect Ashcroft. Comey suddenly worried that the White House might have him forcefully ejected. He called Mueller, still en route to the hospital, and asked him to tell his agents that Comey should not leave the room under any circumstances. Comey handed the phone over to one of the agents, and Mueller spoke to him. When he finished, the agent assured Comey, “You will not leave that room, sir. This is our scene.”

  Card and Gonzales arrived soon after, with Gonzales holding a manila envelope.

  If the pair were surprised to see Comey and other Justice Department lawyers already assembled, they didn’t show it. “How are you, General?” Card greeted Ashcroft.

  “Not well,” Ashcroft answered.

  Card said they were there to discuss a vital national security program. It was essential that it be continued.

  Ashcroft managed to push himself up onto his elbows. Clearly angry, he said he’d been misled about the program and, now that he understood it, had serious concerns about its legal justification. He paused, his breathing labored. “But that doesn’t matter now, because I’m not the attorney general.” His hand shaking, he pointed to Comey. “He’s the attorney general.”

  There was silence. Then Gonzales said, “Be well,” and he and Card left without looking in Comey’s direction.

  Mueller arrived a few minutes later, at 7:40 p.m. He found Ashcroft “feeble,” “barely articulate,” and “clearly stressed,” according to his notes. Comey briefed him on what had happened.

  Mueller leaned over to speak closely to Ashcroft. “In every man’s life there comes a time when the good Lord tests him,” he said. “You passed your test tonight.”

  Comey’s heart was racing, and he felt slightly dizzy. But Mueller’s words made clear, as Comey later expressed it, that “the law had held.”

  Comey was so deeply moved he felt like crying.

  * * *

  —

  THE NEXT DAY, Comey learned the White House planned to go ahead with Stellar Wind over the objections of the Justice Department, notwithstanding the aborted visit to Ashcroft’s hospital room. Instead of the attorney general, it would be authorized by the White House counsel. Comey didn’t believe that people should threaten to resign to get their way. If things became intolerable, if asked to do something they believed was wrong, they should simply resign.

  So that night, Comey drafted a resignation letter. So did a slew of Justice Department lawyers involved in the situation. Mueller, too, told Comey he was prepared to resign. It would likely be a mass exodus unseen since the Watergate era—and a political disaster for a president launching a reelection campaign.

  The next morning, Comey joined Mueller for an antiterrorism briefing at FBI headquarters, and then the two went to the White House for their regular threat briefing with the president. Afterward, President Bush asked to speak to Comey alone.

  Comey didn’t always agree with him, but he liked Bush. He wanted him to succeed. He told him he couldn’t find a legal justification for the NSA surveillance program. Bush countered that it was he as president who determined the law for the executive branch. “Only I can say what the Justice Department can certify as lawful,” Comey responded, and quoting Martin Luther, the father of the Reformation, cast his position as a matter of deep conviction and principle: “Here I stand. I can do no other.”

  Comey thought he might be overstepping when he added, “The American people are going to freak out when they find out what we’ve been doing.”

  Bush seemed irritated by the suggestion. “Let me worry about that,” he said.

  Bush seemed oblivious to the impending wave of resignations by the Justice Department leadership, including the FBI director. Comey didn’t want to threaten to quit himself, but he thought Bush needed some warning. “You should know that Bob Mueller is going to resign this morning.”

  “Thank you for telling me that.”

  Mueller was waiting when Comey left the West Wing. Moments later, a Secret Service agent said the president wanted to see him, too, and he went back upstairs.

  Ten minutes later, Mueller returned, and he and Comey got into the FBI director’s black armored SUV. Mueller told Comey that he’d confirmed to the president that he couldn’t continue as director if the White House ignored the Justice Department’s legal objections. “Tell Jim to do what needs to be done to get this to a place where Justice is comfortable,” Bush had responded.

  Comey and his team worked all weekend to modify the surveillance program, submitting the results on Sunday night. Two days later, White House lawyers responded with what amounted to a curt dismissal. Exasperated, Comey pulled out his letter of resignation.

  But he never sent it. Comey didn’t know what happened inside the White House, but that week, when Bush signed an order extending Stellar Wind, it incorporated all the changes Comey and his team had asked for.

  * * *

  —

  PRESIDENT BUSH WAS reelected in November 2004, and after his inauguration he replaced Ashcroft, who had fully recovered from his surgery, with his loyal White House counsel, Alberto Gonzales—one of Comey’s principal nemeses in the Stellar Wind affair.

  Over the past year, Comey had become increasingly dismayed at White House attempts to insert political loyalists into the Justice Department hierarchy and undermine the independence of the department, no doubt partly to fend off the kind of principled opposition Comey had mounted. Like many presidents, Bush seemed to want someone running the department whose first loyalty was to the president rather than to the Constitution or rule of law. Politicizing the department by installing loyalists, in Comey’s judgment, was invariably a grave mistake. It was the department’s independence that protected the executive branch.

  Despite their differences, Gonzales had phoned Comey right after his appointment, saying he was looking forward to working with him as deputy attorney general. But Comey didn’t have the stomach for more Stellar Wind battles. That spring he announced his resignation and left the department in August 2005, just as Bush’s second term became embroiled in controversy.

  Comey’s warning to President Bush that the American people would “freak out” once they learned the details of the government’s domestic surveillance program proved prescient. Over the national security objections of the Bush White House, The New York Times broke the story in December that President Bush had approved a broad program of domestic eavesdropping without benefit of court-approved warrants shortly after 9/11, and reported that “some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.”

  A firestorm erupted in the media and Congress, which only intensified after further shocking revelations of torture of al-Qaeda captives by CIA interrogators. Controversy was still raging when Gonzales fired a raft of U.S. attorneys, in what looked like a purge of prosecutors who failed some kind of administration loyalty test. The hallowed independence of the Justice Department seemed under dire threat.

  In 2007, the Senate Judiciary Committee launched hearings into the U.S. attorney firings, as well as Justice Department complicity in the surveillance and torture programs. Comey was subpoenaed and testified on May 3 before the House Judici
ary Committee and on May 15 before the Senate Judiciary Committee.

  Under questioning from the New York senator Charles Schumer, Comey gave a dramatic and detailed account of the Stellar Wind affair and his interactions with Bush, Gonzales, and others at the White House. While some aspects of the affair had appeared previously in the press, Comey’s principled stand, and his and Mueller’s threats to quit, were big news.

  Gonzales tried to counter Comey’s narrative, arguing in testimony and a book that “contrary to Hollywood-style myth, there simply was no confrontation” at Ashcroft’s bedside; that extending the Stellar Wind program wasn’t on the agenda; that Ashcroft had never pointed his finger at Comey; and that he and Card would never have gone there had they known that Ashcroft had relinquished the powers of the attorney general to Comey.

  But later testimony by others in the room, including Mueller, who produced detailed notes of the incident, corroborated Comey’s account. Schumer demanded that Gonzales be investigated for perjury and called for his ouster.

  Gonzales never recovered politically from the controversies involving the U.S. attorney firings, the torture of prisoners, surveillance, and ultimately his own credibility. Increasingly viewed as a political liability by the White House, he submitted his resignation on August 26, 2007. In accepting it, President Bush complained Gonzales’s name had been “dragged through the mud.”

  Comey’s reputation, by contrast, soared to new heights. The notion that he’d defied the Bush administration, and stood up against government spying on its own citizens, gained him national publicity and praise beyond anything he’d done before, even in his highest-profile cases.

  When Senator Schumer introduced Comey at the 2007 hearings, he called him “almost a man who needs no introduction.” He continued, “As far as I’m concerned, when the Justice Department lost Jim Comey, it lost a towering figure. And I don’t say that because he stands 6’8” tall. When Jim left the Department, we lost a public servant of the first order, a man of unimpeachable integrity, honesty, character and independence.”