Deep State

by James B. Stewart

  McCabe had called in, but Baker suggested he hang up. Comey, too, told him to “drop off” the call and added, “I don’t need you on this call.” McCabe was taken aback and upset; he was the one who had pushed for the meeting, and was intimately involved in the issues, but he nonetheless hung up. Lisa Page also left the room. While Comey said nothing explicit, everyone realized their departures had something to do with the firestorm that had erupted after the Wall Street Journal article.

  Strzok led the briefing, and briefly reviewed the bizarre sequence of events in which Anthony Weiner’s sexually explicit texts to a fifteen-year-old minor led to the discovery of hundreds of thousands of Hillary Clinton emails. It all seemed new to Comey. None of it jogged any memory of his having been told about it before.

  Comey asked what they’d found in the emails. “We see evidence of many, many, many, thousands and thousands of emails from the period of Secretary Clinton’s tenure as Secretary of State,” Comey recalled being told. “Two, we see Verizon.Blackberry.net email metadata. We don’t know what the content is, from the period of time when Secretary Clinton was using a BlackBerry, Verizon.BlackBerry.net account at the beginning of her tenure as Secretary of State. We think this may be the missing three months of emails.”

  If so, it was a potent discovery, because Clinton’s motive—the elusive question of her intent—would have been most evident when she began using the private server. Comey asked if everyone felt they needed to review the contents of the emails to be sure they’d “turned over the necessary stones” and “be comfortable with the decision we made.”

  “Yes,” Priestap replied. “We don’t know with certainty what’s in there. It could be information that we’ve not seen, you know, thus far, and so yes . . . in effect it’s dereliction of duty to not, you know this thing is out here to pass it over. So yes, we’ve got to, we have to do it.”

  Strzok agreed, saying, “We have to pursue this material, because, you know, we would do it in any other case. And it is, you know, a pool of evidence that hypothetically, now understandably it’s very speculative, but there is that possibility that it could change our outcome.”

  Priestap thought that unlikely. He felt that they’d already scoured so many emails that it was unlikely they’d discover any “smoking gun,” as he put it, and if they did, it “would have shocked me.” But “could it have been possible? Absolutely. That’s why we had to review it.”

  Comey readily agreed that the FBI needed to get a search warrant and review the emails. As he later said, “We may be finding the golden missing emails that would change this case.”

  “How fast can you review and assess this?” Comey asked. The answer was weeks—maybe months—and not until long after the election. “Do it as quickly as you can, but do it well,” Comey responded.

  Going to court and applying for a warrant were overt investigative acts. Others would be aware or involved, including agents in New York and prosecutors in Preet Bharara’s office. There was the ever-present danger, even likelihood, of leaks. According to Page, there was “a substantial and legitimate fear that when we went to seek the warrant in order to get access to the Weiner laptop, that the fact of that would leak.”

  More worrisome, with the decision to seek a warrant, Midyear “awoke from the dead,” as Comey later put it. It was again an active investigation. The presidential election was exactly twelve days away. Comey wondered, now what?

  SIX

  “TO SPEAK OR TO CONCEAL”

  With the discovery of the Weiner laptop and its contents, Comey now faced what he saw as a binary decision: “to speak or to conceal.” Comey’s own reputation for candor was on the line: he had represented to the American people that the Clinton email investigation was closed, something he deemed a “material fact.” That was no longer true. To now remain silent would be “an affirmative act of concealment.”

  Once the information came out, because it was either announced or leaked, Comey’s reputation for probity would be shredded, and his job as FBI director might well be in jeopardy. “I think he may have said, like, I could be impeached,” Baker recalled.

  Comey was well aware that Department of Justice policy discouraged (though didn’t explicitly forbid) actions that might have an impact on elections, whether “that’s a dogcatcher election or president of the United States.”

  As Comey told members of his staff, “Those are the doors. One says speak, the other says conceal. Let’s see what’s behind the speak door. It’s really bad. We’re eleven days from a presidential election.”

  “Okay, close that one, really bad,” Comey said.

  “Open the second one. Catastrophic.” To conceal would be “catastrophic, not just to the Bureau, but beyond the Bureau.” Comey elaborated: to conceal would subject the FBI and the Justice Department “to a corrosive doubt that you had engineered a cover up to protect a particular political candidate.”

  Given Comey’s public commitment to unusual transparency in the email case, if he now concealed that the investigation had been reopened, he felt the consequence would be “generations-long damage to the credibility of the FBI and the Justice Department.”

  Comey was well aware Clinton was the overwhelming favorite to be the next president in every major poll. While he consciously tried to ignore that, he acknowledged, “I was operating in an environment where she was going to be the next president.”

  The likelihood of Clinton’s election had obvious implications: if she was so far ahead, then announcing that the email investigation had been reopened was unlikely to affect the outcome. And if she were elected, and the FBI discovered incriminating evidence, “the moment she took office, the FBI is dead, the Department of Justice is dead and she’s dead as president,” Comey said.

  There was also the ever-present danger of leaks. If Comey decided to remain silent, “we were quite confident that somebody is going to leak,” Baker recalled. And then there would be “claims that we tried to play games with the election, and we tried to steer it in a certain way to help Hillary Clinton and hurt Donald Trump.”

  Posed in those terms, Comey’s choice was between “really bad” and “catastrophic.” Though discussions continued throughout the afternoon and evening, it was pretty clear where Comey was headed. As he’d said at the end of their meeting, “Welcome to the world of really bad.”

  Though excluded from the meetings, Page and McCabe both expressed strong reservations about Comey’s plan. “Please, let’s figure out what it is we HAVE first,” Page texted Strzok that afternoon, noting the FBI might not even get the search warrant. “Then we have no further investigative step.”

  “Agreed,” Strzok replied.

  McCabe wrote to Page at 9:57 p.m. saying Baker had told him “about the notification and statement which the boss wants to send tomorrow. I do not agree with the timing but he is insistent.”

  “I also wildly disagree that we need to notify before we even know what the plan is,” Page responded, adding, “I hope you can get some rest tonight.”

  * * *

  —

  THE NEXT MORNING, Trisha Anderson, the FBI’s deputy general counsel, told Baker that after thinking about it overnight, “I have serious reservations about going down this road. I’m very concerned about this, Jim. Why? Well, because I’m concerned that we are going to interject ourselves into this process. We’re going to interject ourselves into the election in a way that’s, that potentially or almost certainly will change the outcome. And I am, I, Trisha, am quite concerned about that. And I’m concerned about us being responsible for getting Donald Trump elected.”

  Anderson, who like nearly everyone else at FBI headquarters was somewhat in awe of Comey, was reluctant to broach the subject with the director present. So Baker brought it up at that morning’s discussion, and Anderson said, “I’m not so certain that this is the right thing to do.”

  While she d
idn’t explicitly name Trump, and felt the mention of any candidate’s name would be inappropriate, she expressed her concerns about affecting the outcome of an election. Everyone knew what she was talking about.

  Anderson was also concerned that no one yet knew what was in the emails and whether they would have any impact on the conclusion. As she later explained, “It was unclear—and perhaps even unlikely—that the emails would be material to the investigation.” And “no matter how carefully we wrote such a letter, the importance of the emails would be overinflated and misunderstood. So, in my mind, and what I believe I argued in the meeting, was that we were about to do something that could have a very significant impact on the outside world even though what we had might not be material, yet people would very likely view it as such.”

  Comey firmly rejected her concerns. “I cannot consider that at all,” he said. “Down that path lies the death of the FBI because if I ever start thinking about whose political ox will be gored by this or that, who will be hurt or helped, then we are done as an independent force in American life.” He said he appreciated her raising the issue, which was likely on everyone’s mind. But “I cannot consider it.”

  Anderson said she came around to Comey’s view that disclosure was the better of two bad alternatives. Strzok, too, overcame any reservations he’d expressed to Page. McCabe, though excluded from the meeting, was firmly opposed—at least until the FBI knew what was in the emails—but when he spoke to Comey by phone after the meeting, Comey said, “I don’t need you to weigh in on this decision.”

  By now Comey’s mind was largely made up, and he asked Strzok to draft a letter notifying Congress. Comey felt so strongly that if he failed to inform Congress, “I ought to be fired, I ought to be hung out, I would be run out of town.”

  * * *

  —

  AFTER THE MEETING, Kortan and Page called The Wall Street Journal’s Devlin Barrett, who insisted that he had sources who had told him that McCabe told them to “stand down” on the Clinton Foundation investigation until after the election, implying that McCabe was trying to protect Clinton from any adverse publicity.

  The agents had been barred from overt steps until after the election, but by the Justice Department, not by McCabe. On the contrary. McCabe had stood up to Axelrod when the subject came up in August. McCabe reminded Page about the Axelrod call and authorized her to tell Barrett about it. Surely, he reasoned, Barrett would drop that part of his story once he heard the anecdote, because it completely undercut the premise that McCabe was going easy on Clinton because of his wife’s campaign donations.

  Along with Comey, McCabe had the authority to approve press disclosures when it was in the public interest, though he’d never exercised it before. But Comey was mired in the Weiner laptop issues. So Kortan and Page spoke again to Barrett late that afternoon and told him about McCabe’s response to Axelrod’s call. Neither Page nor McCabe focused on the fact that they had just implicitly confirmed that there was a Clinton Foundation investigation.

  * * *

  —

  COMEY HANDED THE unenviable task of conveying his decision to notify Congress about the Weiner laptop discovery to Rybicki, his chief of staff, who called Axelrod that same afternoon, October 27. Although Comey didn’t call Lynch or Yates himself (in order, he said, to let them distance themselves), at least he was giving his nominal superiors advance notice and a chance to weigh in, in contrast to the July 5 announcement.

  On the face of it, this was inconsistent. The risk that Justice Department involvement would be perceived as partisan was no less now than it had been in July. Comey himself was at something of a loss to explain it. He might have been subliminally troubled by the anger and distrust that his earlier decision had caused at the Justice Department. He might even have hoped that Lynch and Yates, his superiors in the government hierarchy, would give him a direct order not to send the letter. The burden of the Clinton investigation he’d donned in July now seemed incredibly heavy. On some level, it would be a relief to have someone lift it from his shoulders.

  Rybicki told Axelrod that Comey planned to send a letter notifying Congress that the Clinton email investigation had been reopened. He stressed that Comey felt an ethical obligation. “The Director has testified. The Director believes that Congress has, now has a misimpression and so it’s the Director’s butt on the line,” he told Axelrod. “He needs to do this. If he doesn’t,” he added, “it’s not survivable for him.”*

  Axelrod was shocked and dismayed. This ran squarely counter to the department’s long-standing policy of not interfering in an election, which was now only days away. He told Rybicki he’d have to discuss it with Yates and Lynch, but said it was “a bad idea.”

  Axelrod immediately briefed Lynch and Yates. As Lynch recalled it, “The Director’s view was that he had to provide this information to Congress, that he was concerned about the information being leaked from the New York office.” And “he also was concerned that if, if in fact he did not provide this information to Congress, and either it was leaked or later on we discussed it in some Department-approved way, that it was not survivable.” Lynch asked Axelrod what he meant by “survivable,” and Axelrod said “that was just the phrase that Rybicki had used. It was not survivable,” either for Comey or for the FBI as an institution.

  Wittingly or not, Comey had put his superiors at Justice in what they considered an untenable situation.

  All three thought notifying Congress at this juncture was a terrible idea, especially because no one yet knew what was in the emails. But as in July, they had no sense that Comey was seeking their advice. Rybicki had framed the issue as one of Comey’s moral and ethical duty. A call from Lynch or Yates was unlikely to change his mind.

  They recognized that Yates and Lynch had the authority to stop him, or at least order him not to make the disclosure. But then what?

  In one scenario, Comey would defy them and send the notice to Congress. As Yates put it, we “weren’t at all convinced that he would follow such an order not to do it.” Lynch would then have to fire Comey or demand his resignation for insubordination. Nothing would have been gained, and the ensuing furor would only raise more questions about whether the Justice Department had tried to tip the scales in favor of Clinton.

  Another scenario was that if Lynch ordered him not to notify Congress, he’d resign. Such was Comey’s reputation stemming from the Ashcroft episode that this seemed highly likely. “That seemed like a very real possibility to us, particularly against the backdrop of the situation with John Ashcroft in the hospital room where he had the resignation letter drafted,” Yates said. “That wasn’t even an ethical obligation. That was something where he disagreed with them about the statutory authority there.”

  The reasons for Comey’s resignation would surely become public, again placing Lynch and the Justice Department in the untenable position of trying to prevent an FBI director from discharging his perceived moral and ethical duty in what would appear to be an effort to protect the Democratic candidate for president.

  A third scenario was that Comey obeyed the order. (Comey later said that he would have followed such a direct order.) Even this was highly problematic: as Axelrod put it, that “tees up an obstruction of Congress investigation” of Lynch, who might be accused of blocking Comey from correcting a statement—that the Midyear investigation was closed—that was no longer valid.

  For Axelrod, none of those scenarios were “good for the policies and the procedures or the goals of keeping DOJ and FBI out of politics. None of those are good for the AG personally,” or for the institutions.

  There was another possible scenario, which was that Lynch could call Comey, feel out his intentions, and test his resolve to go through with the notice. But the two were never that close or had much rapport, certainly not after the discussion of the Clinton “matter” or the July 5 announcement.

  As Yates put it, sh
e’d witnessed Comey’s reactions in many meetings with Justice Department officials, and his tendency “was very defensive of his agency and he would push back hard. I didn’t think there was any way in the world he was going to go back to his people and say, I just got off the phone with the AG or I just got off the phone with the DAG and they convinced me that I really don’t have this personal ethical obligation I’ve told all of you that I have.” She felt the best strategy was to convince Rybicki, who might in turn be in a position to persuade Comey.

  Axelrod conveyed in no uncertain terms “our building’s view” that “the Director should not do this.” It was “not only a really bad idea” that “violates our policies and procedures and traditions,” but “it’s contrary to how we do business. And actually, I used those exact words as well. It was contrary to how we do business.”

  The argument that notifying Congress violated department policy—the linchpin of Justice’s opposition—didn’t carry much weight with Comey, because the policy was always qualified by an “overriding public interest” in disclosure, which Comey deemed this to be.

  A few rungs below Comey and Lynch, Strzok and Toscas also had a heated discussion, in which Toscas said, “This is BS. We don’t talk about our stuff publicly. We don’t announce things. We do things quietly.” He was also able to articulate more broadly the virtue in adhering to established principles—especially in extraordinary circumstances. He explained, “The institution has principles and there’s always an urge when something important or different pops up to say, we might want to deviate because this is so different. But the comfort that we get as people, as lawyers, as representatives, as employees and as an institution, the comfort we get from those institutional policies, protocols, has, is an unbelievable thing through whatever storm, you know whatever storm hits us, when you are within the norm of the way the institution behaves, you can weather any of it because you stand on the principle.”