Deep State

by James B. Stewart

  Lisa Page was aware of the undercurrent of criticism but didn’t think it was fair. McCabe had named Page his special counsel when she was thirty-six, soon after he was named deputy director. Page was thrilled; she and McCabe had worked closely together while he was assistant director for counterterrorism and then executive assistant director for national security. When McCabe went to the Washington field office, Page took time off to have a second child. She was tall and willowy, with curly dark hair and high cheekbones that hinted at her Armenian ancestry.

  Page was born in Los Angeles in 1979 and, as long as she could remember, had dreamed of a career in public service. She attended a specialized high school for law and government until her family moved to Ohio when she was sixteen. After graduating from American University in Washington, D.C., she worked as a paralegal for the Federal Trade Commission to get a taste of what government lawyers do, and she loved it. After three years at the FTC she enrolled in Ohio State’s law school to qualify for in-state tuition and lived at home to save money. She gravitated toward criminal law and after graduating joined the Justice Department in Washington as a prosecutor. She thought of herself as diligent, hardworking, responsible—someone who, all her life, had followed the rules. Law enforcement was a natural fit.

  As a lawyer, Page had never served as an FBI agent and was still relatively low ranking on the FBI ladder. But working for the deputy director thrust her into virtually every aspect of the FBI’s work, including the most sensitive cases, like Clinton’s emails. She was outspoken and opinionated, a quality McCabe encouraged but that led to resentment among some more traditional agents.

  Now that he was the bureau’s second-ranking official, there were few people in whom McCabe could confide besides Comey, and even then Comey was his boss. So Page often served as his sounding board. She in turn passed on information, even gossip, from throughout the bureau. As in any large bureaucracy, there was a lot of it, most of it of interest only to someone enmeshed in the internal politics.

  McCabe and Page were huddled alone in McCabe’s office so often that Comey wondered if they might be having an affair, not that it was any of his business; nothing prohibits FBI employees from dating, though those who did were usually discreet.

  But Comey dismissed the thought: Page was married with two young children, and McCabe seemed happily married to a physician. Although he couldn’t be involved in the campaign, given his job at the FBI, he’d just backed his wife’s bid for the Virginia state senate, her first try at elected office.

  That the wife of a high-ranking FBI official was running for statewide office, as a Democrat, was an unexpected twist in the McCabe family saga. Jill McCabe was a physician with no political background or experience, but she’d been quoted in a 2014 Washington Post article favoring Medicaid expansion under Obamacare. Virginia Democrats, hoping to gain a majority in the next election, were looking for a woman with medical credentials to run for the state legislature, which had led them to Jill McCabe.

  Both McCabes went to Richmond to meet with Governor Terry McAuliffe, who’d been elected in 2013 after a long career as a prodigious fund-raiser for Bill and Hillary Clinton. The consummate party insider and networker, he’d served as chair of the Democratic National Committee, chaired Hillary Clinton’s failed 2008 presidential campaign, and was on the board of the Clinton Foundation. His loyalty to the Clintons and willingness to advance their interests seemingly knew no bounds.

  Generally speaking, all federal employees have the same rights as other citizens to engage in political speech and activity, as long as it doesn’t compromise their official duties. There’s nothing to prevent a spouse who doesn’t work for the federal government from undertaking political activities, including running for office. That Jill McCabe would be running as a Democrat also didn’t mean McCabe, too, was a Democrat. Voters in Virginia don’t need to register with a party, but McCabe had voted in the Republican primary. He was, in fact, a lifelong Republican.

  Even so, and out of an abundance of caution, McCabe notified the FBI’s Richmond field office that his wife might run for office and that he’d be meeting with the governor to discuss the prospect. Afterward, as his wife further considered the possibility of a campaign, he explored the ethical propriety of her candidacy with high-level FBI officials in Washington, including General Counsel Jim Baker and the FBI’s chief ethics officer, Patrick Kelly.

  Under the Hatch Act, which regulates political activity by federal employees, all FBI agents, officials, and employees are entitled to hold political views—it would be odd if they didn’t—and to register and vote. They can donate to campaigns and political parties. They are free to express their views and can even display bumper stickers and lawn signs for candidates.

  But FBI and Justice Department employees are held to stricter standards. They can’t run for office themselves while in the government’s employ, work on a campaign, host a political fund-raiser, make a campaign speech, or organize or participate in campaign rallies. Comey went even further. He didn’t vote after becoming FBI chief.

  In his administrative position, McCabe at the time didn’t have any direct responsibility for the Clinton investigation. Of more immediate concern, given his wife’s prospective campaign, was an ongoing investigation of McAuliffe and other Virginia officials into potentially illegal fund-raising and violations of the Foreign Agents Registration Act. So after conferring with various FBI officials, McCabe withdrew from any involvement in investigations of Virginia officials.

  With that proviso in place, no one at the FBI had any objections to Jill McCabe’s campaign. Through his chief of staff, Comey himself gave his blessing, and when McCabe told his wife the news, she made the commitment to run. McCabe himself kept a distance from the campaign while still giving her moral support, which is why that summer he posed for a photo in which he, Jill, and the rest of their family wore “Dr. Jill McCabe for State Senate” T-shirts. McCabe only wore the T-shirt once. But he knew nothing about how she organized or financed her campaign. While Jill was busy with her race, he trained for an Ironman triathlon, which he completed successfully in October. Between that and his FBI job, he had no time for any involvement in her campaign, which was how he wanted it.

  The day McCabe and his wife drove home from their meeting with the governor, he warned her that politics could be ugly, and people would say bad things about her. She insisted she wasn’t going to be deterred by name-calling.

  It never occurred to McCabe that the name-calling would be aimed at him.

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  ONCE MCCABE WAS named deputy director, he and Page were thrust into the middle of the Midyear Clinton investigation. The FBI team, led by Strzok and analyst Jonathan Moffa, held weekly updates for Comey, McCabe, and other top officials. Over six months into the investigation, nothing had yet emerged to show Clinton knew classified information had been conveyed on an insecure server, let alone that she intended to do that.

  That didn’t stop some FBI officials from encouraging team members to bring Clinton down, with comments like “You have to get her” and “We’re counting on you.” While FBI employees typically said little at work about their political views, everyone assumed the bureau tilted conservative and Republican, especially on issues of law and order.

  Given those proclivities, it’s not surprising that Bill and Hillary Clinton brought some of those conservative leanings into the open. Neither was popular with the FBI rank and file. Bill had been impeached and his license to practice law suspended for lying under oath in the Monica Lewinsky affair—a felony, for one thing, and a breach of one of the FBI’s most fervently held values, which was being truthful.

  Many believed President Clinton had set an appalling example to the nation and to future generations that lying under oath would be tolerated, excused, even encouraged and rewarded. The FBI depends on people telling the truth (making a false statement to the FBI is
a federal crime). In their view, Bill Clinton had made their work immeasurably more difficult.

  As for Hillary Clinton, she hadn’t admitted to any crime. But many at the FBI still didn’t believe her sworn testimony in the Whitewater affair or her public statements in defense of her husband, and many at the FBI saw her as an enabler of her husband’s worst tendencies.

  It didn’t surprise or even bother Page that high-ranking FBI officials held strong anti-Clinton views. But some comments crossed the line from opinion to advocacy. Jim Baker, the FBI’s general counsel, had also heard troubling comments within the bureau, specifically “You guys are finally going to get that bitch” and “We’re rooting for you.”

  Of course, nearly everyone held some political views, especially regarding candidates running for president. Page didn’t especially admire either of the Clintons, whom she viewed as no friends of law enforcement. On the other hand, she deemed Trump beyond the pale.

  Both she and Strzok were deeply suspicious of Russian intentions, but Trump seemed to revel in what the media dubbed his “bromance” with Russia’s Vladimir Putin, long a target of Republican ire.

  At his annual news conference, Putin had called Trump “a bright and talented person without any doubt” and “an outstanding and talented personality.” He also singled him out as “the absolute leader of the presidential race.”

  Trump responded, “It is always a great honor to be so nicely complimented by a man so highly respected within his own country and beyond.” Trump dismissed allegations Putin had murdered dissidents and journalists. “He’s running his country and at least he’s a leader, unlike what we have in this country,” he said. “I think our country does plenty of killing also.”

  After Trump called the Texas senator Ted Cruz a “pussy” just a day before the New Hampshire primary, Page texted Strzok, “I’m no prude, but I’m really appalled by this. So you don’t have to go looking (in case you hadn’t heard), Trump called him the p-word. The man has no dignity or class. He simply cannot be president.”

  Strzok texted back that Trump was “abysmal. I keep hoping the charade will end and people will just dump him.”

  That seemed increasingly unlikely. After Trump dominated the so-called Super Tuesday primaries on March 1, the once-improbable Republican candidate had amassed a commanding delegate lead and looked poised to win the nomination, a prospect that prompted a flurry of texts.

  “God trump is a loathsome human,” Page observed on March 4. “He’s awful.”

  “God Hillary should win 100,000,000–0,” Strzok replied.

  Page texted again: “Also did you hear him make a comment about the size of his d*ck earlier? This man cannot be president.”

  Page and Strzok considered these private, even intimate communications. Many more of their texts were explicitly affectionate, even amorous. Unknown then to any of their FBI colleagues, the two had embarked on an affair by the late summer of 2015, when their texting began. The reason they used their FBI-issued phones and texted each other so often—a year and a half later, their texts numbered more than forty thousand messages—was to conceal their relationship from their spouses.

  The vast majority of these texts were routine office communications. There were only a few dozen political comments embedded in them, surprisingly few given their shared level of interest in the campaign. Most were responses to news events. Page later testified that “because I was on the Clinton investigation, I actually felt extremely constrained from talking to anyone about politics at all.”

  Unlike some of those hostile to Clinton, Page and Strzok never expressed any anti-Trump or pro-Clinton sentiments to other colleagues, and both later testified that their political views had no bearing on their professional work. The texts were merely my “personal opinion talking to a friend,” Strzok testified, adding that there was a “bright and inviolable line between what you think personally and believe and the conduct of your official business.”

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  THAT SPRING, Justice Department lawyers had completed the survey that Comey had asked for: a spreadsheet that ran to nearly forty pages of every Espionage Act and mishandling of classified information case and investigation. The lawyers could find only one instance where someone was charged with gross negligence under the Espionage Act: a 2004 case against James J. Smith, an FBI agent who worked in counterintelligence, specializing in China. Smith had retired in 2000 after thirty otherwise unblemished years with the bureau.

  Smith had carried on a sexual relationship for nearly twenty years with an informant he’d recruited, a Chinese American businesswoman. The government suspected the woman was actually a Chinese double agent. Over the years, she’d allegedly engaged in “unauthorized copying and possession of national defense materials,” which she surreptitiously removed from Smith’s unlocked briefcase when he visited her home.

  The government charged Smith with making a false statement—for failing to disclose his affair with the woman when questioned by the FBI—and two counts of gross negligence under the Espionage Act, for bringing classified documents to her home in an unlocked briefcase.

  Though unveiled with much fanfare, the case sputtered to an inconclusive resolution. Smith pleaded guilty only to making a false statement about the affair, so the gross negligence charges were never litigated. He was sentenced to just three months of home confinement and a hundred hours of community service. All charges against the Chinese American woman were dismissed.

  Sex and negligence also figured in a highly publicized case against the former four-star general and CIA director David Petraeus. When questioned by the FBI, Petraeus admitted he’d embarked on an affair with Paula Broadwell, author of the highly flattering biography All In: The Education of General David Petraeus, published in 2012. But he denied giving her classified information.

  Petraeus later admitted that he had given Broadwell access to highly classified materials for her research, had kept the documents in an unlocked drawer at his home, and then had lied about it. The FBI recommended a false statement felony charge, but no Espionage Act charges were ever filed. Petraeus pleaded guilty to one misdemeanor count—removal of classified material concerning foreign relations with the intent to store it at an unauthorized location—and was sentenced to just two years’ probation. He also paid a $100,000 fine.

  One of the stranger cases under the Espionage Act involved President Clinton’s former national security adviser Sandy Berger, who in 2003 took classified national security documents from the National Archives, concealed them in his socks and pants, hid them at a nearby construction site, and later cut some of them into small pieces and destroyed them. He also lied to investigators about all this.

  Berger pleaded guilty to a misdemeanor charge of unauthorized removal and retention of classified documents, without ever explaining his bizarre behavior or why he took them in the first place. He also received a slap on the wrist: two years’ probation and a hundred hours of community service. When Berger died in 2015 at age seventy, President Obama issued a statement ignoring the offense and hailing Berger as “one of our nation’s foremost national security leaders.”

  Probably the closest case to the Clinton situation was that of John Deutch, former secretary of defense and CIA director in the Clinton administration. Deutch used his unsecured home computer to process “large volumes of highly classified information,” much of it labeled “top secret,” a CIA investigation concluded. Deutch resigned as CIA director in 1996 and had agreed to plead guilty to a misdemeanor when he was pardoned by Bill Clinton in 2001. Because he was pardoned, the Justice Department never disclosed for what crime he’d agreed to plead guilty, but presumably it was the same misdemeanor as Petraeus’s.

  The pardon and underlying events seem to have had no impact on the career of Deutch, who subsequently joined the faculty at the Massachusetts Institute of Technology and has served on a bevy
of leading corporate boards, including Citigroup and Schlumberger.

  These cases suggested that what often started out as Espionage Act investigations involving “gross negligence” ended up with guilty pleas to a misdemeanor. Besides the negligible punishment for such an offense, the government’s level of proof seemed to be much lower: “knowing” removal of classified information with “intent to retain” it in an unauthorized location. But because all these cases involved guilty pleas, there were no litigated cases or opinions clarifying the state of mind required or burden of proof.

  Justice Department lawyers also looked at a few cases that were investigated but didn’t result in any charges or pleas. The most prominent involved Alberto Gonzales, who’d confronted Comey at Ashcroft’s bedside. While White House counsel, Gonzales had taken notes about the NSA’s top secret surveillance program, including its code name. He kept the notes in a White House safe in an envelope marked “AG-EYES ONLY—TOP SECRET.” But when he left to become attorney general, he took the notes with him, failed to place them in a secure location, and acknowledged that he might have taken them home (he said he didn’t remember).

  Justice Department officials concluded they couldn’t prove the requisite intent, which they defined as “criminally reckless.” Such lack of provable intent was a common thread in the other cases they didn’t charge.

  Given the lack of precedent, department lawyers also dug into the history of the act, especially discussions of the phrase “gross negligence.” Congressman Andrew Volstead, a Minnesota Republican better known for the Volstead Act that launched Prohibition, testified in 1917 that gross negligence “has to be so gross as almost to suggest deliberate intention.” He continued, “This section should be, and probably would be, applied only in those cases where something of real consequence ought to be guarded with extreme care and caution.”