The Threat

by Andrew G. McCabe

  He was very engaged. He was not yet convinced. He pointed out that he was, essentially, the only politically confirmed official at Justice involved in the Russia investigations—Jeff Sessions, after all, had had to recuse himself because of his role in the campaign and (as would soon be revealed) because of his meetings with Russian officials during that time. Rosenstein also wanted to be around to influence the selection of the next FBI director.

  I told him I understood his concern. But, I said, if we’ve appointed a special counsel who will take this investigation wherever it needs to go, then everything else will take care of itself. Ultimately, the White House is going to choose the new FBI director on its own terms; that decision was wholly in the administration’s control. The priority had to be doing the right thing for the Russia case.

  We talked a lot. He again spoke of his memo that had been used to justify Director Comey’s firing. He said he could tell as early as January, from his first conversations with the attorney general, that Jim Comey would be fired.

  By the end of the meeting, he said he would continue to consider appointing a special counsel, but he did not see this as an urgent matter—if a special counsel was needed, Rosenstein did not think the appointment had to happen quickly.

  Drawing a Line

  On Saturday afternoon, May 13, Jeff Sessions and Rod Rosenstein interviewed me for the position of FBI director. It was a cordial meeting, and the questions were the ones you’d expect. Example: What do you think is the biggest challenge to the FBI right now? Easy, I said. Technology. Not in terms of any particular case or type of threat. I believed we had the experience and the capability to meet operational threats in counterterrorism, counterintelligence, and all other realms. But in the long term, we were going to be mightily challenged by changes in technology—from encryption to interpreting increasingly large data sets. And I said that if we don’t get better at identifying, acquiring, and delivering technological solutions to our workforce as an organization, we are not going to be able to keep the country as safe as possible. I don’t think that’s the answer they expected, and it was not an answer that engaged them in this meeting. But it is the answer that I’m still very confident about.

  At one point, an aide brought an iPhone to the attorney general. On the iPhone screen was a picture from 2015 of me and my family at a swim meet where my kids were competing. We were all wearing T-shirts that said DR. JILL MCCABE FOR STATE SENATE. The morning that picture had been taken, the T-shirts had arrived in the mail, and we put them on, and one of our friends took a family photo. Then the friend posted the photo to Facebook. Then the right-wing media took the photo and falsely claimed that I had gone out canvassing for my wife’s campaign.

  So in my interview to be FBI director, instead of having a full discussion of the challenges to American law enforcement, I had to explain in detail to the attorney general why a family snapshot was not the damning political artifact that it had been made to appear to be—while the attorney general looked skeptically at me, as if he didn’t believe what I was saying.

  The whole conversation felt like a charade. In the end I said, Honestly, if I could be so bold as to give you my best advice as to what I think you should do here—I think you should look hard and well to find the best candidate from outside the FBI to come in and be the next director. I think you should try to get that person on board as fast as you possibly can, and as deputy director I will try to help that person get up to speed as quickly as possible. But to be candid, I will become eligible for my retirement in March 2018, and it is my intention to retire at that time and go into the private sector.

  Through the weekend, though, the issue of the special counsel was apparently gnawing at Rosenstein. On Sunday morning he called me on my cell phone. Using coded language, he said that if I had the opportunity to speak with Jim Comey, he would be very interested to hear what Comey thought about the question of appointing a special counsel. I said that I would have to think about this.

  I was doubtful that seeking Comey’s advice and relaying it in this manner would be ethical under the circumstances. It also seemed unwise on its face. That afternoon, I convened a conference call with some of my senior staff to discuss whether to seek Jim Comey’s opinion on the special-counsel issue. We all concluded that I should not. He was no longer an FBI employee. It would be inappropriate to discuss investigative issues with him. It was also just a bad idea. Comey was a party to the matter Rosenstein was dealing with—and regardless of one’s admiration for Jim, there was no getting around the fact that his thoughts on this topic would be inherently conflicted. Seeking advice on how to handle the situation—as Rosenstein seemed to want to do—would pull him immediately into dangerous waters. Rod never asked me about this again.

  On Monday the fifteenth, I met again with the Russia team. From January until Comey was fired, we had been having discussions with him about how to handle the topic of whether the president was under investigation. Jim Baker said, Even though we don’t have a case open on the president, we do have a case open to see whether his campaign coordinated with the Russians in a way that would have been illegal or improper; and as the leader of his campaign, by definition some of his activity and behavior would be within the scope of the investigation. Baker thought it was jesuitical—basically, too cute by half—to say the president was not under investigation. But Comey chose to give the president the reassurance that, at that moment, he himself was not.

  It is important to remember that opening a case does not mean that a crime has been committed. And the FBI is rightly circumspect in its statements. That said, as analysts and scholars have discussed at length, there arguably could have been grounds for a case against the president, on two fronts. The first was obstruction of justice. The events of the preceding few days were significant. The president’s possible connection to obstruction was no longer limited to his having been the leader of a campaign, some of whose members may have crossed a line in various ways. Now the president himself had fired the director. Prior to that, on at least two occasions, the president had asked the director to drop the inquiry regarding Mike Flynn. He had also repeatedly referred publicly to the investigation in a demeaning and dismissive way. He had called it “a witch hunt.” And on May 11, in an interview with Lester Holt of NBC News, the president had explicitly connected his decision to fire Jim Comey to what he called “this Russia thing”—seemingly abandoning the idea that it had been Rod Rosenstein’s idea, and that the cause involved the handling of the email case. These facts could well combine to form an “articulable factual basis”—the predication needed to open a full investigation—that the federal crime of obstruction of justice might have occurred. They could be interpreted as implying that the director had been fired in an effort to obstruct the Russia investigation, and specifically the investigation of Mike Flynn.

  On the collusion side, all those same facts could raise suspicion that the president might have been aware of, and supportive of, his campaign’s many interactions with the Russian government and people connected closely to it, specifically in hacking the emails of the Democratic National Committee and using the DNC emails to harm Hillary Clinton as a candidate.

  In theory, could the attorney general also have been a target of investigation? His denial, during his confirmation hearings, that he had ever met with anybody from Russia about the 2016 campaign was widely questioned at the time. Then the FBI received a letter from Senator Patrick Leahy, of Vermont, and Senator Al Franken, of Minnesota, noting reports that Sessions met with the Russian ambassador to the U.S. at least twice during the 2016 elections, including one meeting that took place during the Republican National Convention. The senators were concerned that Sessions’s testimony during confirmation hearings “could be construed as perjury,” and they asked us to look into what actually happened—the reported events that seemed to contradict the confirmation testimony Sessions had given. Then the two senators sent two follow-up letters during the following two
months asking for updates on the matter.

  Traditionally, the Bureau does not open perjury cases on people based on statements made in confirmation hearings unless Congress asks us to look into a particular statement by a particular person. The FBI does not want to be turned into the confirmation police. We trust that the process has its own integrity. Senators can and should ask probative questions that will reveal obfuscation or dishonesty. It could be a different story if Congress were to ask the FBI to look into the circumstances around what actually happened, as opposed to what someone testified to.

  If—hypothetically—the FBI had information about events suggesting that a cabinet nominee’s testimony had been untrue, and Congress asked us to look into it, a case on that person could be opened. Even to consider such a move would require consultation with the Justice Department, because a case like that would be a SIM—a sensitive investigative matter, requiring special handling according to the attorney general guidelines.

  If the FBI found itself in circumstances like these, where the facts and our obligations under the guidelines were clear, and we chose not to open a case because it might involve government officials in the highest ranks, the Bureau would be guilty of dereliction of duty.

  ‘A Strategy for Disruption’

  On Monday, May 15, I went back to Justice to inform Rod Rosenstein of where we stood with the Russia investigation. In his office, I renewed my strong request that we should appoint a special counsel to pursue the Russia investigation. The pressure was on to move quickly. He didn’t argue with what I was proposing, and he also did not yet endorse it.

  Jim Comey, when he briefed the leadership on the Hill about the Russia case, assured them that we would keep them updated as to significant developments. I was due to provide another briefing, and the possible appointment of a special counsel would count as a significant development. Rosenstein said, Well, I’m going with you. Great, I said, I’d love to have you. But you’d better be ready, because if you’re there, they’re going to ask if you’re going to appoint a special counsel—and some of them are not going to take no for an answer. He thought about that but did not pronounce a decision. His chief of staff, Jim Crowell, was making arguments similar to mine.

  Having been in his job for only three weeks, Rod may not by this point have developed a reflexive understanding of how frequently, as an intelligence organization, the FBI had to make its way to the Hill, and what kinds of things we briefed the various intelligence committees on. When we were involved in any momentous or controversial matters, we would go up and brief the congressional leadership, the group called the Gang of Eight: the majority and minority leaders of the House, the majority and minority leaders of the Senate, and the chairs and the ranking members of the House and Senate Intelligence Committees. That group is typically pretty secure.

  As I saw it, one key reason for briefing the Hill was this: By putting the deputy attorney general on notice and informing Congress of the Bureau’s actions, we would be drawing an indelible line around the cases we had opened—the four known publicly and any others that may have gone forward.

  In this meeting, Rod spoke again, and in more detail, about his experience of writing the memo that the president used to justify Comey’s firing. On May 8, Rod said, he went to the White House. Don McGahn told him the president wanted to fire the director. The president had written a termination letter—long and rambling, as later press accounts discussed. By the time Rod walked out of the Oval Office that day, he had been enlisted to write a memo to justify Comey’s firing. This memo accompanied the revised letter that the president sent to Comey.

  As Rod recounted to me his memories of that meeting, he became very animated. He talked fast, he gestured a lot, he got up and walked around, he was a flight of ideas. He continued talking in this way about his experience of Comey’s firing on May 9. The false story that had taken shape in press reports—the notion that the whole thing had been Rod’s idea—was eating away at him.

  He wondered aloud if there was some way to collect explicit evidence of the president’s apparent motivations and put it unequivocally on the record. No option for doing so seemed feasible. In any case, the president already had publicly made the connection between Comey’s firing and “this Russia thing,” with his comments to Lester Holt.

  That’s where we left it on Monday. The clock was ticking. I thought I would get fired any minute. Somebody was going to knock on my door and say, Pack your bags, you’re moving to Anchorage. We urgently needed a special counsel, but there was only so much I could do about that. I had to do what I could do, as fast as I could do it.

  On Tuesday I went back to Justice for another meeting with Rod and some of his staff. Lisa Page came with me, to take notes. I couldn’t track this conversation and transact it as I needed to and also make a record of it. When we sat down in his office, I pressed again for the appointment of a special counsel. I said, You have to do this. We’re going to go to Congress—tomorrow, I hope—and I’m going to lay the scope of our investigation out for the Gang of Eight, and some of them are going to come after you with reasonable demands that we need a special counsel appointed quickly. The attorney general has recused himself. It’s a mess. We need somebody independent to oversee this.

  Rod was still not fully convinced. He said the same things he said the week before: What happens with the director’s job? Jim Crowell weighed in heavily on my side of the argument. Rod’s attention flew all over. It appeared to me that he was at the end of his rope. The stress of these issues, and his role in this whole situation, seemed to be overwhelming. In the middle of this meeting, he took a phone call. It was Don McGahn, calling to ask him to arrange for me to go back to the White House, to interview for the director’s job. So we set that up for the next day.

  In this same meeting Rod talked about interviews with candidates for director. Then he flipped back to talking about possible candidates for the special counsel job. It was hard to track whether he was talking about candidates for one job or for the other. One minute, he said Mueller had been asked to interview for the position of FBI director; Mueller had gone in for an interview with Trump, and left his phone there, and then the phone had to be retrieved. Then he said John Kelly was another candidate for FBI director.

  I said I didn’t understand what qualified Kelly as a prospect. Kelly had no law-enforcement or legal background of any kind. And why would he leave his cabinet-level position as secretary of the Department of Homeland Security to become director of the FBI? Rod said, No, he wouldn’t leave DHS. He would just run both. I said, You’ve got to be kidding. Those are two massive jobs. Each one is a huge challenge for any human being. For one person to do both would be impossible. Rod said, This is a strategy for disruption. It is not a serious attempt to find the right FBI director. It is a strategy for disruption.

  That night, Rod provisionally agreed to meet with the Gang of Eight the next day. He wanted to do it as late in the day as possible. And before I left his office, Rod also gave me the president’s original draft letter firing Comey, which he had kept after his May 8 White House meeting. I read it, I took it back to the Hoover building, sealed it in an envelope, signed the seal, and put it in my safe.

  The Gang of Two Dozen

  By the afternoon of May 17, Rosenstein had confirmed his agreement to hold a briefing for the Gang of Eight about the Russia investigation. He had also made the decision to appoint a special counsel and taken steps to do so. The FBI team had already set up the briefing, for five o’clock that day, so it was a good thing he was on board. At the Capitol, on the House side, they walked me down to the SCIF, in a basement floor. Some of the Russia team was waiting for me there. The senators and congressmen started straggling in, each with one or two aides—mostly staff directors—and then Rod showed up with a couple of his people. Now that the Gang of Eight was a crowd of two dozen in the room, I thought, the chance of this not getting back to the president was basically zero. Then Devin Nunes walked in,
and the chance was less than zero.

  Nunes, a congressman from California and the chairman of the House Intelligence Committee, had publicly stepped away from that committee’s Russia investigation. In April, just before the House Ethics Committee announced it was investigating Nunes for speaking with the media about classified information relating to the Trump campaign and Russia, Nunes effectively recused himself—although he did not use the word “recuse.” Nunes was suspected of having surreptitiously been given intelligence by presidential aides during a nighttime rendezvous at the White House, information that he then publicized. Look who’s here, I said to Rod. Rosenstein understood. He went to talk to Nunes, pulled him aside. Came back, told me, Nunes is staying, he says he’s not recused from this, he refuses to leave.

  I looked at Rod. Rod said, At the end of the day it’s his recusal, it’s his choice, I can’t enforce it. We can’t kick him out of the room.

  Rod and I sat at the end of the long conference table in the middle of the room. Chuck Schumer, the Democratic senator from New York, was to my right, and Mitch McConnell, the Republican senator from Kentucky and the Senate majority leader, was to my left. I took out the outline I had prepared. As a rule, I don’t work off talking points, I brief off the top of my head. Not this time.