Deep State

by James B. Stewart

  Did Comey cost Clinton the election?

  Comey’s October 28 letter to Congress reopening the email investigation can only have damaged Clinton’s campaign. But there’s no way of knowing how many, if any, votes it actually cost her. However persuasive Nate Silver’s analysis, it was Clinton herself who decided to use her private email account for State Department business. It was Bill Clinton who barged in on Loretta Lynch on the Phoenix tarmac. And it was decades of obfuscation—about her cattle futures trading, about her Whitewater investment, and about her husband’s infidelities and sexual misconduct—that led some voters to doubt Clinton’s integrity and truthfulness, including her claims about the emails.

  After all, Comey cleared Clinton a few days later after a massive, round-the-clock effort by FBI agents. Perhaps, as Trump maintained, Clinton “misplayed” that good news. If so, Comey can hardly be blamed. And for anyone but Clinton, that final exoneration should have laid the matter to rest.

  Was Comey’s decision to make the July 5 announcement about Clinton “insubordinate and extraordinary,” as the inspector general concluded?

  Comey was well aware that he was departing from FBI and Justice Department policy, as were his advisers and the FBI leadership. Comey did it for one reason: to protect public confidence in the FBI as an independent, nonpartisan, and trustworthy agency. After Obama’s public statement, after Lynch’s comment about “matters,” and especially after Bill Clinton’s ill-timed visit on the tarmac, Comey became convinced that any decision to exonerate Clinton would be tainted as partisan.

  To criticize her actions as “extremely careless” while declining to recommend charges was also a departure from Justice Department policy. The description—especially in the initial draft, when it was “grossly negligent”—came perilously close to the language of the Espionage Act. But Comey felt some characterization was important to ward off criticism that the FBI was favoring her and ignoring what was an inappropriately risky handling of state secrets.

  Appointing a special counsel—a step Comey weighed at several junctures—would have avoided the appearance of a conflict and thus any need for Comey to intervene. The last special counsel, Kenneth Starr (whose title was independent counsel), had led to Bill Clinton’s impeachment and all but ended his presidency. With that precedent in mind, naming a special counsel for Clinton would surely have seriously damaged her candidacy, no matter the outcome. Once Comey knew she was unlikely to be charged, naming a special counsel would likely have done irreparable damage to the FBI. In any event, it was up to the Justice Department to name a special counsel.

  As Comey said many times, there were no good choices and certainly no perfect ones. At the time—after July 5, but before he reopened the investigation in October—Comey drew bipartisan praise for his decision, even from Nancy Pelosi. Loretta Lynch, whose authority Comey arguably usurped, seemed content to have Comey bear the burden and the controversy of making the decision.

  Had Huma Abedin kept Clinton’s emails off her husband’s laptop, no one would have second-guessed Comey’s decision to make the announcement.

  Was the opening of the Russia investigation motivated by hostility to Trump, using a salacious and bogus dossier funded by the Clinton campaign?

  The Russia investigation began after George Papadopoulos, a Trump campaign adviser, told Australia’s ambassador to the United Kingdom, Alexander Downer, that Russia had damaging information about Hillary Clinton. Downer passed that information to Canberra, which initially did nothing. Only after WikiLeaks published the first of the hacked Clinton campaign emails did it forward the information to the Americans.

  Australia is one of the United States’ closest allies, and Downer was a respected and reliable source.

  The subsequent arrival of the Steele dossier, in mid-September, reinforced the FBI’s concerns but had only marginal value. The FBI—Strzok in particular—distrusted anything with a Russian provenance. He was immediately concerned that so little of it could be either verified or disproven. Most of it was not, in his words, “actionable intelligence.” He knew as well that while Putin and Russia might well have preferred Trump over Clinton, Russia’s true objective wasn’t to elect any particular candidate but something much more profound and disturbing: to undermine America’s democracy and sow chaos in its electoral system. The dossier was perfectly designed to do that.

  At the same time, much of the dossier was accurate and corroborated other facts known to the FBI. The FBI had every reason to mention it in its FISA application on Carter Page, even though the application by no means rested on it. Even now, most of the dossier remains neither proven nor disproven, including its salacious account of Trump’s visit to the Ritz-Carlton.

  Most compelling, the FBI in fact opened a case file not on Trump but only on four of his campaign associates who had direct ties to Russia. The bureau had every reason to do so, and three of the four (Papadopoulos, Flynn, and Manafort) ended up being indicted or pleading guilty to crimes.

  Had the FBI been motivated by animus to Trump, it could have opened a file in the summer or fall of 2016, and there were those inside the bureau who argued that it should have. Yet Comey held off.

  Even after Trump asked for Comey’s “loyalty” and to “let . . . go” of the Flynn investigation, Comey delayed out of an abundance of caution. Only after Comey was fired, and McCabe’s job seemed to be hanging by a thread, did the FBI open a file on Trump. McCabe went to the Justice Department, where he sought and obtained Rosenstein’s approval. McCabe and Rosenstein then briefed the congressional leadership, including the Republican Speaker of the House and majority leader of the Senate. No one raised any objections.

  For the fact that he fired Comey and thus became the subject of an FBI investigation into collusion with Russia and obstruction of justice, Trump has no one to blame but himself. As Bannon said, firing Comey was the biggest mistake “maybe in modern political history.”

  Does a “Deep State” exist, and did it plot a coup to overthrow an American president?

  Trump is hardly the first president to face resistance from, and to express hostility toward, elements of the federal bureaucracy. As the New Yorker editor David Remnick wrote in a 2017 essay (even before Trump had begun using the phrase), “Eisenhower warned of the ‘military-industrial complex’; L.B.J. felt pressure from the Pentagon; Obama’s Syria policy was rebuked by the State Department through its ‘dissent channel.’ But to use the term as it is used in Turkey, Pakistan, or Egypt is to assume that all these institutions constitute part of a subterranean web of common and nefarious purpose.”

  “The problem in Washington is not a Deep State; the problem is a shallow man—an untruthful, vain, vindictive, alarmingly erratic President,” Remnick concluded.

  Even Mike Lofgren, whose essay propelled the phrase into the current national conversation, has been alarmed by the way it’s been weaponized by Trump and his chorus of supporters. “There is something about Trump that senior operatives, either within the Beltway or in their corporate bastions, don’t like,” Lofgren wrote in a 2017 essay for the Lobe Log website. “His disgusting vulgarity and unhinged ranting embarrasses people who like to think of themselves as professionals. And, of course, the caterwauling about the Deep State by White House trolls may deceive people into thinking that the Deep State, however one defines it, and Donald Trump are in mortal combat.”

  Yet “a glance at Trump’s policy choices shows that this theory is nonsense. His cabinet, filled with moguls from Big Oil, mega-banking, investment, and retail, makes George W. Bush’s cabinet look like a Bolshevik workers’ council.”

  It’s not that no “Deep State” exists, in Lofgren’s view, but that Trump himself is a willing part of it. Legislation like Trump’s tax code—one of his few major accomplishments—was largely designed and implemented by a Treasury secretary (Steven Mnuchin) and the top White Hou
se economic adviser (Gary Cohn) who are both alumni of Goldman Sachs—a linchpin of the “Deep State.”

  Steve Bannon told me that the “deep state conspiracy theory is for nut cases. America isn’t Turkey or Egypt.” There is an entrenched bureaucracy, but “there’s nothing ‘deep’ about it,” he said. “It’s right in your face.”

  James Comey, the ostensible high mandarin of the Deep State, told me he’d never heard the phrase until after he was fired. Trump’s idea of a Deep State “is both dead wrong and dead right,” he said. “There’s no Deep State looking to bring down elected officials and political leaders that represents some deep-seated center of power,” Comey said. “But it’s true in a way that should cause Americans to sleep better at night. There’s a culture in the military, in the intelligence agencies, and in law enforcement that’s rooted in the rule of law and reverence for the Constitution. It’s very deeply rooted and, thank God, I think it would take generations to destroy.”

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  AFTER RESIGNING AS attorney general, Jeff Sessions consulted with friends and advisers about whether to run for his old Senate seat from Alabama. Charles Cooper, Sessions’s lawyer, said the FBI closed its investigation of Sessions without recommending any charges, and did so even before Sessions knew such an investigation existed. The FBI has made no public comment.

  Donald McGahn, the White House counsel who defied Trump’s directive to get rid of Mueller and refused his requests to publicly dispute accounts of the incident, left the White House on October 17, after cooperating extensively with the special counsel. More than anyone else in the White House, McGahn saved Trump from his most reckless impulses and what would have been an even more damning report and greater likelihood of impeachment.

  For that he received no gratitude from the president. “I was NOT going to fire Bob Mueller, and did not fire Bob Mueller,” Trump tweeted after the Mueller report was released. “In fact, he was allowed to finish his Report with unprecedented help from the Trump Administration. Actually, lawyer Don McGahn had a much better chance of being fired than Mueller. Never a big fan!”

  Trump replaced McGahn with Pat Cipollone, a Washington lawyer who was an adviser and speechwriter for Barr when he was attorney general in the 1990s.

  Rod Rosenstein announced his resignation on April 29, 2019, effective May 11. In a letter to Trump he praised the president while professing faith in the rule of law: “I am grateful to you for the opportunity to serve; for the courtesy and humor you often display in our personal conversations; and for the goals you set in your inaugural address: patriotism, unity, safety, education, and prosperity, because ‘a nation exists to serve its citizens.’ The Department of Justice pursues those goals while operating in accordance with the rule of law. The rule of law is the foundation of America. It secures our freedom, allows our citizens to flourish, and enables our nation to serve as a model of liberty and justice for all.”

  In a speech in New York on April 25, Rosenstein again pointedly stressed the rule of law and quoted the president (as he had on multiple occasions) saying, “We govern ourselves in accordance with the rule of law rather than the whims of an elite few or the dictates of collective will.” But the statement was actually less than a full-throated endorsement of the proposition by Trump. The president made the comment in prepared remarks commemorating Law Day, and Rosenstein omitted the first words of the full quotation: “Law Day recognizes that we govern ourselves in accordance with the rule of law.” Trump didn’t explicitly say he embraces the proposition.

  After leaving office, Rosenstein dropped any pretense of cordial relations with Comey, let alone admiration. “The former director is a partisan pundit, selling books and earning speaking fees while speculating about the strength of my character and the fate of my immortal soul,” Rosenstein told a Baltimore audience on May 13. “That is disappointing.”

  Rosenstein’s supporters have said the former deputy attorney general deserves credit for seeing the Mueller investigation through to its conclusion even if that meant denying accounts of his post–May 9 behavior, capitulating to Trump by writing the letter justifying Comey’s firing, and delivering the scalps of McCabe and Strzok—in essence, that the end justified whatever means were necessary.

  In his Baltimore speech, Rosenstein assessed his tenure: “I took a few hits and made some enemies during my time in the arena, but I held my ground and made a lot of friends. And thanks to them, I think I made the right calls on the things that mattered.”

  Since publishing his book, Comey has taught a course in ethical leadership at the College of William & Mary, his alma mater. He has lectured at law schools, including Chicago, Stanford, and Yale. Still, Comey’s friends are dismayed that his career in public service was cut short and is unlikely to resume anytime soon, if ever.

  Comey’s emergence as a writer and his position as a firsthand witness to Trump’s methods have earned him a prominent place on the nation’s editorial pages. Writing in The New York Times on May 1, 2019, Comey said he was baffled by how Barr and Rosenstein handled the Mueller report.

  How could Barr “start channeling the president in using words like ‘no collusion’ and FBI ‘spying’”? Comey asked. “And downplaying acts of obstruction of justice as products of the president’s being ‘frustrated and angry,’ something he would never say to justify the thousands of crimes prosecuted every day that are the product of frustration and anger?”

  And how could Rosenstein “give a speech quoting the president on the importance of the rule of law? Or on resigning, thank a president who relentlessly attacked both him and the Department of Justice he led for ‘the courtesy and humor you often display in our personal conversations’?”

  Comey’s answer: “Accomplished people lacking inner strength can’t resist the compromises necessary to survive Mr. Trump and that adds up to something they will never recover from.”

  On May 28, in The Washington Post, Comey took on the “Deep State” conspiracy theorists. “The conspiracy theory makes no sense. The FBI wasn’t out to get Donald Trump. It also wasn’t out to get Hillary Clinton. It was out to do its best to investigate serious matters while walking through a vicious political minefield.

  “But go ahead, investigate the investigators, if you must. When those investigations are over, you will find the work was done appropriately and focused only on discerning the truth of very serious allegations. There was no corruption. There was no treason. There was no attempted coup. Those are lies, and dumb lies at that. There were just good people trying to figure out what was true, under unprecedented circumstances.”

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  FOLLOWING IN COMEY’S footsteps, in February 2019 McCabe published a memoir, The Threat: How the FBI Protects America in the Age of Terror and Trump. McCabe also had a star turn on national television, in his case 60 Minutes, where he was courageous (or foolish) to so publicly criticize Trump and the Justice Department while he was under criminal investigation, and therefore still at their mercy.

  The Threat shot to the top of national bestseller lists. McCabe will no doubt need whatever royalties the book earns, for his ordeal didn’t stop with his being fired and denied his retirement benefits. The Justice Department referred the inspector general’s report to the U.S. attorney for the District of Columbia. McCabe remains under criminal investigation for perjury (and perhaps other crimes), as a result of his statements about the source of the Wall Street Journal article.

  McCabe has said he is constrained by the ongoing investigation about what he can say in his defense. In his book, he said, “I had done my best to answer the questions accurately—and when I realized I needed to clarify and correct what I had said, I did so voluntarily, without being prompted.” He added that he was filing a lawsuit to challenge his firing and how it was handled, as well as the inspector general’s conclusions.

  With the ongoing attacks by
Trump and the unresolved issue of criminal charges, McCabe hasn’t found a job in the private sector.

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  ON APRIL 25, 2019, President Trump launched a renewed attack on Lisa Page and Peter Strzok. Appearing on his preferred news program, Hannity on Fox, Trump said, “These two were beauties. There is no doubt about it. They were going hog wild to find something about the administration which obviously wasn’t there.”

  He continued, “These were the two that talked about the insurance policy just in case Hillary Clinton loses. If she loses, we’ve got an insurance policy. Well, that was the insurance policy.

  “Now, she lost and now they are trying to infiltrate the administration to—really, it’s a coup. It’s spying. It’s everything that you can imagine. It’s hard to believe in this country that we would have had that.”

  Page and Strzok haven’t had the national platform available to Comey and McCabe. While it hasn’t been easy, given the harsh public spotlight cast on their affair, they’ve both managed to preserve their marriages. They’ve had little choice but to be more open and honest with their spouses. Page has been working at a Washington law firm. Strzok hasn’t found a job in the private sector, but he, too, is working on a book. Both testified under oath in congressional hearings, which gave them an opportunity to address their critics.

  “What would you say to those who allege that the special counsel’s probe has become irredeemably tainted because you and Lisa Page were once a part of the Russia investigation,” the Democrat Jerrold Nadler of New York asked Strzok.

  “I’d say that is utterly nonsense,” Strzok answered.

  He went on, “I never, ever considered or let alone did any act which was based on my personal belief. My actions were always guided by the pursuit of the truth, and moreover, anything I did was done in the context of a much broader organization.” He continued, “When you look at the totality of what occurred, the procedures that were followed, demonstrably followed and followed in accordance with law and our procedures, they were complete. They were thorough. They were absolutely done with no motive other than a pursuit of the truth.”