A Higher Loyalty: Truth, Lies, and Leadership

by James Comey

  I responded that it hadn’t occurred to me that people of color might hear my words that way. I hadn’t taken the time to consider how the term “weed and seed”—one we had been using in law enforcement for decades—might strike people, especially black people at a challenging time. I was trapped in my own perspective. A black person—who happened to be president of the United States—helped me see through other eyes.

  We talked about the impact on black communities from the extraordinarily high percentage of black men in the criminal justice system, and how poor a job our country has done to prepare those in prison to return to productive lives. Although I agreed that the jailing of so many black men was a tragedy, I also shared how a term he used, “mass incarceration”—to describe what, in his view, was a national epidemic of locking up too many people—struck the ears of those of us who had dedicated much of our lives to trying to reduce crime in minority neighborhoods. To my ears, the term “mass incarceration” conjures an image of World War II Japanese internment camps, where vast numbers of people were herded behind barbed wire. I thought the term was both inaccurate and insulting to a lot of good people in law enforcement who cared deeply about helping people trapped in dangerous neighborhoods. It was inaccurate in the sense that there was nothing “mass” about the incarceration: every defendant was charged individually, represented individually by counsel, convicted by a court individually, sentenced individually, reviewed on appeal individually, and incarcerated. That added up to a lot of people in jail, but there was nothing “mass” about it, I said. And the insulting part, I explained, was the way it cast as illegitimate the efforts by cops, agents, and prosecutors—joined by the black community—to rescue hard-hit neighborhoods.

  He responded by urging me to see how black people might experience law enforcement and the courts very differently, and that it was hard to blame them for seeing the jailing of so many black men, in numbers wildly greater than their proportion of the population, as anything other than “mass.”

  When we were done, I was smarter. And I hoped that in some small way I’d helped him see things from a different perspective as well. Our discussion was the total opposite of the Washington listen: each of us actually took the time to really understand a different way of looking at something and with a mind open to being convinced.

  President Obama would never have considered such a conversation if he did not have enough confidence in himself to show humility. In fact, if I saw any hint of imbalance with President Obama as a leader, it was on the confidence side of the scale. And I would see it in grappling with the hardest problem I encountered in government—encryption.

  * * *

  Before I became FBI director, Edward Snowden, a contractor at the National Security Agency, stole a huge trove of classified data about the NSA’s activities and then shared a very large amount of that data with the press. One obvious result of this theft was that it dealt a devastating blow to our country’s ability to collect intelligence. Another result was that, in the year after his disclosures, bad actors across the world began moving their communications to devices and channels that were protected by strong encryption, thwarting government surveillance, including the kind of court-authorized electronic surveillance the FBI did. We watched as terrorist networks we long had been monitoring slowly went dark, which is a scary thing.

  In September 2014, after a year of watching our legal capabilities diminish, I saw Apple and Google announce that they would be moving their mobile devices to default encryption. They announced it in such a way as to suggest—at least to my ears—that making devices immune to judicial orders was an important social value. This drove me crazy. I just couldn’t understand how smart people could not see the social costs to stopping judges, in appropriate cases, from ordering access to electronic devices. The Apple and Google announcement came on the eve of one of my regular quarterly sessions with the press corps that covered the FBI and the Department of Justice. I hadn’t planned to talk about encryption, but I couldn’t help myself. I expressed my frustration with the move to default encryption:

  I am a huge believer in the rule of law, but I also believe that no one in this country is beyond the law. What concerns me about this is companies marketing something expressly to allow people to place themselves beyond the law.

  With those comments, I joined an incredibly complicated and emotional battle.

  The divide between the FBI and companies like Apple can be explained, in large measure, by how each sees the world, and the limitations of each of those perspectives. And, frankly, there is not a lot of true listening going on between the parties. The leaders of tech companies don’t see the darkness the FBI sees. Our days are dominated by the hunt for people planning terrorist attacks, hurting children, and engaging in organized crime. We see humankind at its most depraved, day in and day out. Horrific, unthinkable acts are what the men and women of the FBI live, breathe, and try to stop. I found it appalling that the tech types couldn’t see this. I would frequently joke with the FBI “Going Dark” team assigned to seek solutions, “Of course the Silicon Valley types don’t see the darkness—they live where it’s sunny all the time and everybody is rich and smart.” Theirs was a world where technology made human connections and relationships stronger. Who doesn’t love sharing cat GIFs with grandma? Or ordering coffee on your app so it’s ready when you walk into the Starbucks? Although I was joking, I thought the tech community did not fully appreciate the costs when good people from law enforcement were unable to use judicial orders to get evidence. I also think it would be fair criticism to say we focused too much on those costs, given the darkness outside our windows all day long.

  Because both sides are biased by our places in the world, I thought it critical that the resolution shouldn’t be dictated by either Apple or the FBI; the American people should decide how they want to live and govern themselves. But what exactly that means as a practical matter is an incredibly hard question to answer. The collision between privacy and public safety in the encryption context touches on not just privacy and public safety but also issues of technology, law, economics, philosophy, innovation, and international relations, and probably other interests and values.

  The bargain at the heart of our government has always been that privacy matters enormously, but it must yield when, with appropriate evidence and oversight, the government needs to see into private spaces to protect the community. No large part of America has ever been entirely off-limits to judicial authority. President Obama was, by background and instinct, a civil libertarian, but he could see the darkness and the danger in talking about privacy as an absolute value, as he explained publicly in Austin, Texas, in spring 2016:

  But the dangers are real. Maintaining law and order and a civilized society is important. Protecting our kids is important. And so I would just caution against taking an absolutist perspective on this. Because we make compromises all the time.… And this notion that somehow our data is different and can be walled off from those other trade-offs we make I believe is incorrect.

  He dove into the issue, ordering unprecedented White House scrutiny of the clash between privacy and security. At one of several meetings he personally led on the topic in the White House Situation Room, he said that if we were headed to a place where wide swaths of American life would be judge-proof, that wasn’t a decision a company should make. That would be a change in the way we live; only the people of the United States should make such a decision.

  Unfortunately, President Obama ran out of time. Though the administration made some progress on the issue, including developing a technical plan—called a “proof-of-concept”—to show it was possible to build secure mobile devices and still permit judges to order access in appropriate cases, he left office without deciding what to do next, including whether to seek legislation or regulation of some kind.

  One thing about those discussions stayed with me. In the summer of 2016, I sat in the White House Situation Room, where various lead
ers and staffers were laying out and discussing the many dimensions of the problem with the president. The Situation Room is actually the name for a collection of offices and conference rooms that support the president and his National Security Council. But it is also the name commonly used for the conference room in which the president normally holds national security meetings. The room looks nothing like it does on television. It is really small. If the leather, wheeled office chairs are jammed together, maybe ten people can join the president at the table, and they will all need breath mints.

  The seating arrangement for each meeting was dictated by nameplates put on the table by the Situation Room staff before the meeting began. I have been there dozens of times under three presidents and still can’t explain the placement of the nameplates. In back-to-back meetings, I have moved to another seat because there was a different design for the second meeting and my nameplate moved. Nobody sat at the opposite end of the table from the president because that would block the video screen and camera that allowed senior leaders to join from the road. They would appear on the screen in a Hollywood Squares setup, visible only from the waist up. (Knowing this, I once “attended” from Hawaii wearing a suit jacket and tie, and my bathing suit.) From time to time, the Sit Room staff would pull smaller wood chairs up to the end of the table farthest from the president. I called these the “kids’ chairs,” and, because I was not a cabinet secretary, I was often assigned one. Kind colleagues would sometimes offer me their big-kid seats to avoid the hilarious spectacle of the FBI giraffe sitting on a tiny chair. Around the walls there was room for another ten or twelve participants, but the room was so small that their knees nearly touched chairs at the table.

  And so, here we were, in the waning days of the Obama administration, packed in to talk about encryption. Near the end of the meeting, the president spoke up. He had a look of discovery on his face. “You know, this is really hard,” he said to no one in particular. “Normally I can figure these things out, but this one is really hard.”

  I had two reactions to the comment, both of which I kept to myself. “No kidding” was the first reaction. A whole lot of smart people had been banging on this incredibly complicated issue for years. My second reaction was to be struck by the president’s breathtaking confidence. To my eye, at least, he wasn’t puffing or trying to show off. He also wasn’t being self-deprecating or sarcastic in the way President Bush might have. He really did believe that he, Barack Obama, could always figure out the hardest stuff. He couldn’t figure this one out, which surprised him. Wow, I thought.

  I really didn’t know what to make of it. That much confidence—the belief that he personally can solve even the hardest problems—can be worrisome in a leader because it tends to close off other views. I had seen it in myself. One of my weaknesses, especially when I was younger, was overconfidence, a tendency to reach a conclusion quickly and cling to it too tightly. Or to make a decision too quickly, telling myself I was being “decisive,” when I was really being impulsive and arrogant. I have struggled with it my entire life. But in Obama, I had also seen the humility to learn from others, which doesn’t often exist alongside overconfidence. I still don’t know what to make of it, and can’t think of a national security issue on which we interacted in which he showed an imbalance of confidence and humility. Instead, I consistently saw President Obama work to get people to relax and tell him what he needed to know.

  I tried very hard to do the same at the FBI, never forgetting that we are all downhill from our leaders. No matter how “flat” an organization, there is a hierarchy, and everyone knows what it is. Even if everyone in the room is wearing a hooded sweatshirt, ripped jeans, and flip-flops. Even if we are all sitting on beanbags eating trail mix and spitballing ideas on a whiteboard, if anyone in the room is a boss or owner, everyone knows it. Someone in the room is “above” the others, whether that rank is explicit or not.

  Speaking uphill takes courage. It takes overcoming a universal human affliction—the impostor complex. All of us labor, to one degree or another, under the belief that if other people really knew us, if they knew us the way we know ourselves, they would think less of us. That’s the impostor complex—the fear that by showing ourselves we will be exposed as the flawed person we are. If you don’t have this, in some measure, you are an incredible jerk and should stop reading immediately.

  Speaking candidly to a peer requires us to risk exposure. Speaking uphill to a leader is scarier. Speaking to the top leader of the organization is scarier still. And in a paramilitary organization of many layers like the FBI, dominated for its first half-century by a single person, J. Edgar Hoover, the hill is mighty steep. And it is harder than that, because getting the speakers to overcome their impostor complex is only half the answer. The leaders must also overcome their own impostor complex—their fear of being less than perfect.

  I tried to foster an atmosphere at the FBI where people would tell me the truth. I did things that probably struck people as silly, but they were all carefully thought out. I began by attempting to encourage less formal attire at my regular meetings. I discovered that people dressed to come see the director as if they were going to a funeral. I never wore a jacket to internal meetings, but that wasn’t enough. If people are formally dressed, they will think and act in that formal, restrictive box. That is not a recipe for great debate and conversations. Changing the dress code took some doing.

  I told my senior staff of about twenty people, men and women, not to wear suit jackets to my morning meetings unless they were leaving my meeting directly for a meeting with outsiders where they needed to be dressed up. I had success early on, and then about three weeks later nearly everyone was wearing suit jackets again. I made the clothing announcement again, which got me about six weeks of compliance. I kept at it.

  I worked to build an atmosphere of trust by encouraging leaders to tell the truth about something personal. I asked an entire conference room of FBI senior executives to tell the group something about themselves that would surprise the room, quickly adding, to much laughter, that it should ideally not be something that would jeopardize their security clearance. Weeks later, I went around the room and asked them to tell me their favorite Halloween candy as a child. In November, I requested their favorite food at Thanksgiving, and, in December, their favorite gift of the holiday season. Of course, these could be seen as childish techniques, the kind a teacher might urge on an elementary school classroom, but children open up and trust one another in amazing ways. We were in need of a little more childlike behavior in our lives, because children tend to tell each other the truth more often than adults do.

  I would need that culture of truth, and habit of true listening, when the FBI ended up, improbably and unexpectedly, in the middle of the 2016 election between Hillary Clinton and Donald Trump.

  CHAPTER 10

  ROADKILL

  Standing in the middle of the road is very dangerous; you get knocked down by the traffic from both sides.

  —MARGARET THATCHER

  I HAVE NEVER MET Hillary Clinton, although I tried. When I became the United States Attorney for the Southern District of New York in January 2002, I asked my assistant to arrange an introduction to the state’s junior senator. I thought it was a standard thing for the United States Attorney—there were four of us representing the federal government in New York State—to know the senators in the state, and I didn’t want to be rude. I had met the other senator, Chuck Schumer, during the Senate confirmation process, but for some reason I had not met Clinton. After a number of attempts and multiple messages with Clinton’s office, we gave up. It wasn’t a big deal at the time, but I found it odd.

  To this day, I don’t know why the meeting never happened. I suppose it could be the result of poor administrative support at Clinton’s office, or she was simply too busy. I suppose it also could have been due to the fact that seven years earlier, I had worked for five months for the Senate committee investigating the Clintons for a variety
of things grouped under the heading “Whitewater.” I was a junior lawyer for the committee, still working at a Richmond law firm and charging the Senate by the hour. My focus was largely on the suicide of the former deputy White House counsel, Vincent Foster, and the handling of documents in his office. But my role on the Whitewater committee was so minor and so short—I left the assignment when our son Collin died in August 1995—that it seemed unlikely that was the reason the senator wasn’t returning my calls.

  The unreturned messages in early 2002 were more likely due to the fact that my office was then supervising an investigation into Senator Clinton’s husband’s pardon of fugitive oil trader Marc Rich a year earlier, in the final hours of the Clinton presidency. In 1983, Rich and his codefendant, Pincus Green, had been indicted on sixty-five criminal counts by then–United States Attorney Rudy Giuliani. Among the counts were income tax evasion, wire fraud, racketeering, and trading with an enemy of the United States—Iran—while it held dozens of Americans hostage. Rich fled the United States shortly before the indictment (then the biggest tax evasion case in U.S. history). He was given safe haven in Switzerland, which refused to extradite him for what the Swiss considered essentially tax crimes.

  Nearly two decades later, on his final day in office, President Clinton had issued Rich a highly unusual pardon. It was unusual because the pardon was given to a fugitive, which was, to my knowledge, unprecedented. It was also unusual, and suspicious, because it had not gone through the normal review process at the Department of Justice. The pardon had only been seen by then–Deputy Attorney General Eric Holder, who, without seeking input from the prosecutors or agents who knew the case, cryptically told the White House he was “neutral, leaning positive.” The New York Times editorial board called the pardon “a shocking abuse of federal power.” Amid allegations the pardon had been issued in exchange for promises of contributions by Marc Rich’s ex-wife to Bill Clinton’s presidential library, my predecessor as United States Attorney in Manhattan, Mary Jo White, had opened an investigation focused on whether there was evidence of a corrupt bargain. When I became United States Attorney in January 2002, I inherited the investigation, which had been the subject of media stories.