Deep State

by James B. Stewart

  In sum,

  What all of the foregoing demonstrates is that, as to the questions that you desire to ask the President, absent any cognizable obstruction offense, and in light of the extraordinary cooperation by the President and all relevant parties, you have been provided with full responses to each of the topics you presented, obviating any need for an interview with the President. As all of the evidence demonstrates, every action that the President took was taken with full constitutional authority pursuant to Article II of the United States Constitution. As such, these actions cannot constitute obstruction, whether viewed separately or even as a totality.

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  ON SUNDAY EVENING, January 28, Christopher Wray summoned McCabe to his office at the Hoover Building. Since Wray’s arrival, McCabe had tried to do everything he’d promised, which was to get Wray up to speed before McCabe reached his retirement date, now less than two months away. Wray had generally listened attentively, revealing little about himself. Their relationship was professional and polite, if not especially warm or close.

  It was thus a shock to McCabe that as soon as he arrived, Wray said he was removing him as deputy director. Michael Horowitz, the inspector general, had briefed Wray the day before on progress in the leak investigation, which was nearing completion. Horowitz had told him that McCabe was going to be charged with multiple counts of “lack of candor” regarding his testimony about the Wall Street Journal article.

  McCabe tried to defend himself; neither he nor his lawyer had as yet had a chance to respond to any proposed findings. McCabe stressed that he’d voluntarily corrected any misstatements. Wray wasn’t interested in the details. He said McCabe had a choice: he could choose to leave his position, or Wray would remove him.

  McCabe thought about it overnight. The next morning, he said he’d remain on the payroll, but effectively end his twenty-one-year career at the bureau. He didn’t want another job; after being deputy and acting director, anything would be a demotion. And he wasn’t going to pretend the move was voluntary. He had enough vacation time to get to his retirement date. Or so he thought.

  Just about everyone at the FBI was stunned by McCabe’s sudden departure and Wray’s faint praise. Obviously something very bad had happened. No one knew what.

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  THE WEEK OF March 12, the inspector general finally delivered a draft “Report of Investigation of Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe” to the FBI’s Office of Professional Responsibility. Just twenty-four hours later, the office notified McCabe it was recommending he be fired.

  McCabe finally got a copy. Its conclusions were more devastating than anything McCabe had imagined:

  We found that, in a conversation with then-Director Comey shortly after the WSJ article was published, McCabe lacked candor when he told Comey, or made statements that led Comey to believe, that McCabe had not authorized the disclosure and did not know who did. This conduct violated FBI Offense Code 2.5 (Lack of Candor—No Oath).

  We also found that on May 9, 2017, when questioned under oath by FBI agents, McCabe lacked candor when he told the agents that he had not authorized the disclosure to the WSJ and did not know who did. This conduct violated FBI Offense Code 2.6 (Lack of Candor—Under Oath).

  We further found that on July 28, 2017, when questioned under oath by the OIG in a recorded interview, McCabe lacked candor when he stated: (a) that he was not aware of Special Counsel having been authorized to speak to reporters around October 30 and (b) that, because he was not in Washington, D.C., on October 27 and 28, 2016, he was unable to say where Special Counsel was or what she was doing at that time. This conduct violated FBI Offense Code 2.6 (Lack of Candor—Under Oath).

  We additionally found that on November 29, 2017, when questioned under oath by the OIG in a recorded interview during which he contradicted his prior statements by acknowledging that he had authorized the disclosure to the WSJ, McCabe lacked candor when he: (a) stated that he told Comey on October 31, 2016, that he had authorized the disclosure to the WSJ; (b) denied telling INSD agents on May 9 that he had not authorized the disclosure to the WSJ about the PADAG call; and (c) asserted that INSD’s questioning of him on May 9 about the October 30 WSJ article occurred at the end of an unrelated meeting when one of the INSD agents pulled him aside and asked him one or two questions about the article. This conduct violated FBI Offense Code 2.6 (Lack of Candor—Under Oath).

  Lastly, we determined that as Deputy Director, McCabe was authorized to disclose the existence of the CF Investigation publicly if such a disclosure fell within the “public interest” exception in applicable FBI and DOJ policies generally prohibiting such a disclosure of an ongoing investigation.

  However, we concluded that McCabe’s decision to confirm the existence of the CF Investigation through an anonymously sourced quote, recounting the content of a phone call with a senior Department official in a manner designed to advance his personal interests at the expense of Department leadership, was clearly not within the public interest exception. We therefore concluded that McCabe’s disclosure of the existence of an ongoing investigation in this manner violated the FBI’s and the Department’s media policy and constituted misconduct.

  The OIG is issuing this report to the FBI for such action as it deems appropriate.

  Under FBI guidelines, subjects are typically given thirty days to respond. McCabe was told he had less than a week. On Thursday, he spent four hours with Scott Schools, who’d replaced David Margolis at the Justice Department. McCabe stressed how confusing the questioning had been, veering abruptly from the Circa News article the questions were supposed to be about to a Wall Street Journal article he barely remembered and wasn’t prepared for. He’d been blindsided, too, after he was summoned to the Justice Department and was shown the Page-Strzok texts. His mind was still reeling from that revelation when, over his protests, he was again aggressively questioned about the Wall Street Journal article. When McCabe had the time to consider what he’d said and realized he’d made some misstatements, he’d corrected his testimony—as have countless witnesses called by the FBI.

  Schools betrayed little reaction, but McCabe thought he’d made a strong case. Part of him couldn’t believe that after an illustrious career at the highest levels of the bureau, he was about to be fired.

  Friday was McCabe’s last day on the payroll; he’d be eligible to retire on Sunday. It didn’t matter if he were terminated for cause on Monday; he’d still receive full retirement benefits, which included a pension and health care. He and his family celebrated as best they could with a dinner Friday night.

  McCabe was watching CNN at about 10:00 p.m. when the reporter Laura Jarrett broke in with the news that he’d been fired. She called it a “stunning blow tonight to the man who had climbed to the highest echelons of the FBI.”

  On some level McCabe knew it was coming. Still, the news felt like a punch in the gut. And the timing—late on a Friday night, just in time to cost him his retirement benefits—seemed obviously vindictive. He was not going to go quietly.

  “This attack on my credibility is one part of a larger effort not just to slander me personally, but to taint the FBI, law enforcement, and intelligence professionals more generally,” McCabe said in a statement released by his law firm. “It is part of this Administration’s ongoing war on the FBI and the efforts of the Special Counsel investigation, which continue to this day. Their persistence in this campaign only highlights the importance of the Special Counsel’s work.”

  Many at FBI headquarters were stunned that standard dismissal procedures had been accelerated and McCabe was fired hours before he was eligible to retire. Strzok, for one, thought it was morally wrong and malicious. Under the circumstances, it looked as if FBI and Justice Department leadership were trying to curry favor at the White House at McCabe’s expense.

&nbs
p; President Trump could barely contain his satisfaction, saying in a late-night tweet. “Andrew McCabe FIRED, a great day for the hard working men and women of the FBI—A great day for Democracy,” he wrote. “Sanctimonious James Comey was his boss and made McCabe look like a choirboy. He knew all about the lies and corruption going on at the highest levels of the FBI!”

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  ON MARCH 22, John Dowd, considered a voice of moderation on Trump’s legal team who had orchestrated the delicate balance between cooperating and keeping Trump from testifying, resigned, presumably over differences in strategy. As Dowd’s voicemail had vividly demonstrated, a large part of that strategy had been aimed at keeping others from turning against the president, a classic lawyers’ dilemma in any case involving possible conspiracies. So far, Trump had been remarkably adept at keeping everyone in the fold while stopping short of outright witness tampering. Of course Trump didn’t need to say the obvious, which was that he had a unique incentive to encourage cooperation: the power of the pardon.

  Paul Manafort had clearly gotten the intended message: After Manafort and his former business partner Rick Gates were indicted in October, Manafort had reassured his fellow defendant that he had talked to the president’s personal counsel who said they should “sit tight” and “we’ll be taken care of,” even though he said no one actually used the word “pardon.”

  But then, on April 9, FBI agents searched Cohen’s home, hotel room, and office pursuant to a search warrant. Trump was outraged. That afternoon, at a meeting with military commanders to discuss Syria, he instead vented his frustrations with Mueller and the Russia investigation.

  “So I just heard that they broke into the office of one of my personal attorneys—a good man,” Trump began. “And it’s a disgraceful situation. It’s a total witch hunt. I’ve been saying it for a long time. I’ve wanted to keep it down. We’ve given, I believe, over a million pages worth of documents to the Special Counsel. They continue to just go forward. And here we are talking about Syria and we’re talking about a lot of serious things. We’re the greatest fighting force ever. And I have this witch hunt constantly going on for over 12 months now—and actually, much more than that. You could say it was right after I won the nomination, it started.

  “And it’s a disgrace. It’s, frankly, a real disgrace. It’s an attack on our country, in a true sense. It’s an attack on what we all stand for.

  “So when I saw this and when I heard it—heard it like you did—I said, that is really now on a whole new level of unfairness.”

  After repeating “there was no collusion at all. No collusion,” he continued with a familiar attack on Mueller and his team. “This is the most biased group of people. These people have the biggest conflicts of interest I’ve ever seen. Democrats all—or just about all—either Democrats or a couple of Republicans that worked for President Obama, they’re not looking at the other side; they’re not looking at the Hillary Clinton—the horrible things that she did and all of the crimes that were committed. They’re not looking at all of the things that happened that everybody is very angry about, I can tell you, from the Republican side, and I think even the independent side. They only keep looking at us.

  “So they find no collusion, and then they go from there and they say, ‘Well, let’s keep going.’ And they raid an office of a personal attorney early in the morning. And I think it’s a disgrace.

  “So we’ll be talking about it more. But this is the most conflicted group of people I’ve ever seen. The Attorney General made a terrible mistake when he did this, and when he recused himself. Or he should have certainly let us know if he was going to recuse himself, and we would have used a—put a different Attorney General in. So he made what I consider to be a very terrible mistake for the country. But you’ll figure that out.

  “All I can say is, after looking for a long period of time—and even before the Special Counsel—because it really started just about from the time I won the nomination. And you look at what took place and what happened, and it’s a disgrace. It’s a disgrace.”

  Clinton was obviously still an obsession: “And the other side is where there are crimes, and those crimes are obvious. Lies, under oath, all over the place. Emails that are knocked out, that are acid-washed and deleted. Nobody has ever seen—33,000 emails. . . . So I just think it’s a disgrace that a thing like this can happen.”

  Trump was especially furious when he learned that it was Rosenstein who approved the search warrant for Cohen.

  One reason for Trump’s vehement reaction might have been that Cohen was no Flynn, or even Manafort, but an intimate confidant who had full knowledge about the Moscow project as well as the Stephanie Clifford payoff—and who knew what else.

  Even though they weren’t supposed to be talking, a few days later Trump called Cohen to “check in.” The president urged Cohen to “hang in there” and “stay strong.” Then a friend of Trump’s called Cohen to say that he was with “the Boss” at Mar-a-Lago and the president “loves you.” Another mutual friend told him, “Everyone knows the boss has your back.”

  Given Cohen’s public statements of loyalty, he seemed unlikely to turn against the president, especially because the Trump Organization was paying Cohen’s legal fees, which he told Vanity Fair were now in the seven figures. Still, any white-collar defense lawyer knew how intense the pressure to cooperate with the government could become. And neither Trump nor his lawyers knew exactly what the FBI agents might have gotten as a result of the searches.

  A time-honored way to keep a witness in line was to make sure his lawyer had a close relationship with the president’s lawyers. Robert Costello fit the bill. He was close to Giuliani, and Costello told Cohen he had a “back channel of communication” to the president’s lawyer, a channel that was “crucial” and “must be maintained.” Costello wrote in an email to Cohen that he’d spoken to Giuliani, and the conversation was “Very Very Positive. You are ‘loved’ . . . they are in our corner. . . . Sleep well tonight, you have friends in high places.”

  Even so, Cohen worried that after the searches he was “an open book.” He didn’t want his payments to women on behalf of Trump to be revealed. His statements—lies, actually—to Congress about the Trump Tower Moscow project were an especially “big concern.”

  But he felt better after talking to Trump’s lawyer. Cohen told him he’d been a “loyal servant” and asked what was in it for him. The lawyer responded that Cohen should stay on message; the investigation was a witch hunt; and everything would be fine. Cohen resolved to toe the party line and stay a part of the team.

  On April 24, at a press conference with the French president, Emmanuel Macron, ABC’s Jonathan Karl asked if Trump would consider a pardon for Cohen.

  Trump glared at him. “Stupid question.”

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  JOHN DOWD’S EXIT from Trump’s legal team, and the arrival of Giuliani, marked a fundamental shift to a far more combative strategy toward the special counsel and his allies at the FBI and the Justice Department. Gone were the lawyers who’d counseled moderation and who had persuaded Trump not to fire Mueller, Rosenstein, or Sessions. Firing McCabe might have earned Sessions and Rosenstein goodwill and some time. But after the Cohen raid, the president’s patience with them was clearly wearing thin.

  “Much of the bad blood with Russia is caused by the Fake & Corrupt Russia Investigation, headed up by the all Democrat loyalists, or people that worked for Obama,” Trump tweeted on April 11, just two days after the Cohen raid. “Mueller is most conflicted of all (except Rosenstein who signed FISA & Comey letter). No Collusion, so they go crazy!”

  Trump summoned Rosenstein to the White House the next day, ostensibly to talk about turning Russia-related documents over to Congress. There was widespread speculation that Rosenstein would be fired, so much so that hundreds of former Justice Department employees signed a
letter demanding that Congress “swiftly and forcefully respond to protect the founding principles of our Republic and the rule of law” if Trump fired Rosenstein, Mueller, or any other senior Justice Department officials. Even Sessions weighed in, warning McGahn that if Trump fired Rosenstein, Sessions would have to resign.

  Rosenstein emerged from the meeting with his job intact, and Trump avoided another Saturday Night Massacre. Rosenstein, by then, knew all the details of the inspector general’s report—an investigation that had begun within the FBI to find the source of leaks to Giuliani and had ended up instead focusing exclusively on McCabe. The report was released to the public the next day.

  Many at the FBI were stunned by the report and its conclusion that McCabe, of all people, had lacked candor. Most people admired and respected McCabe, especially for the way he’d stepped up and steered the bureau through the treacherous period after Comey was fired. It made no sense that McCabe would lie, when both Lisa Page and Michael Kortan knew exactly what had happened, and readily volunteered the story when the investigators finally got around to asking. And the report made no mention of the incredible pressure McCabe was under when he was questioned about a distant Wall Street Journal story that, by then, seemed insignificant.

  On the other hand, the report gave pause to many, even friends of McCabe’s. Comey clearly had a different recollection. The sacred obligation to tell the truth was something that had been drummed into them from their first days in the FBI.

  No one had been closer to McCabe than Page. As she later testified, “I have never seen Andy lie, ever, under any circumstances. I have never seen Andy do anything other than make the right decision and often the hard decision, even when it has been personally unpopular or professionally unpopular. I have consistently seen him make hard decisions because they were the right thing to do.” She continued, “The findings of the inspector general are entirely inconsistent with the man I know and have worked very closely with for the last 4 years of my career. And I cannot—I simply don’t agree with those conclusions.”