Resistance (At All Costs)

by Kimberley Strassel

  One leak revealed that Trump may have shared classified information with the Russians. A subsequent leak revealed that Israel had provided the intelligence Trump shared. The latter leak caused a diplomatic incident and led to Israel’s decision to change the way it shared information with the United States. As Washington Post columnist Marc Thiessen wrote: “Ponder the irony: These geniuses were so appalled by Trump sharing sensitive intelligence with the Russians that they shared even more sensitive intelligence with the media—and thus the entire world—in order to demonstrate that Trump cannot be trusted with sensitive intelligence. In doing so, these leakers possibly did far more damage to U.S. national security—and intelligence-sharing between the United States and Israel—than anything Trump may have revealed to the Russians.”

  Equally damaging was Comey’s refusal to do anything about the illegal disclosures. The FBI director’s reaction to the Flynn leak is a reminder that officials can abuse their position by ignoring laws just as much as they can by flouting them. Leaks are in the FBI’s purview, and that initial, jaw-dropping Flynn leak would have been easy to track down. The government keeps records of unmasking requests; Comey’s FBI could have tracked down who unmasked Flynn and then followed the information from there.

  Yet at a House hearing in March 2016, Comey refused to even acknowledge he was looking into the leaks. Sources later told me that Comey also willfully obstructed Congress’s own investigation into the leaks. He refused requests for documents that would have shown who had unmasked Flynn. And he refused to provide the name in a closed-door meeting with senior congressional leaders. This led some Republicans to note that the FBI is one of only a few agencies with the power to grant unmasking requests—and to wonder if Comey was himself involved in granting the Flynn unmasking.

  Either way, Mr. Comey never showed interest in sleuthing down the Flynn leakers. Had the FBI taken quick action and set an example of the offenders, it would have deterred the flood of criminal leaks that continues against the Trump administration even today. Those include everything from leaked transcripts of Trump’s calls with foreign leaders, to the leaked names of FBI sources. In April 2019, the Federation of American Scientists, which keeps track of the intelligence community, reported that the Justice Department had received over the prior two years a record number of referrals for leak prosecutions. The DOJ received 120 leak referrals in 2017 and 88 in 2018. By comparison, it received 37 in 2016 (Obama’s last year) and 18 in 2015. As of this writing, no one has been held accountable for the Flynn leak.

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  The dossier release and the takedown of Flynn helped the haters cement in the public conscience the notion of a Trump-Russia collusion. The next takedown, of Attorney General Jeff Sessions, served an additional purpose—it guaranteed that nobody outside the Department of Justice would exert independent oversight over an out-of-control operation.

  This was the goal all along. Sessions had barely been sworn in before Democrats were demanding his recusal, on the grounds that he’d been too close to the Trump campaign to fairly investigate the Trump-Russia collusion story. Sessions had (rightly) resisted those calls. His opponents finally found their leverage. On March 1, 2017, in the wake of the Flynn resignation, the Washington Post reported that Sessions “spoke twice last year” with Kislyak, and moreover that he “did not disclose” this supposedly vital information during his confirmation hearings. It turns out Sessions was asked during the hearing if in his capacity as a Trump surrogate he’d had contact with the Russian government. He’d said no, and this was absolutely true. He’d met with Kislyak briefly on two occasions in his capacity as a sitting U.S. senator—once at a 2016 summer reception, and once in the not-so-secret confines of his Senate office. Democrats didn’t care about the distinction, and within a day of the uproar over the Post story, Sessions had formally recused himself from overseeing the Trump-Russia investigation. Democrats were so vicious that they’d go on to demand that Comey’s FBI open a criminal perjury investigation into Sessions.

  This hobbling of Sessions is even more outrageous in hindsight. Don’t forget: A lot of Democrats in Washington at this point likely knew that their party had a hand in the dossier. Certainly members of the Obama administration and Clinton campaign did. How far had the information traveled? How many elected officials in early 2016 calling for a Sessions recusal were doing so in an effort to ensure no Trump official got wind of their actions? Also don’t forget that at this time, not a single Republican knew the truth of the dossier. Republicans had read the BuzzFeed release, but according to Comey, it had been funded by conservatives. Republicans knew that Democrats’ demands for Sessions’s recusal were silly; they didn’t know the demands were self-serving.

  His removal left Comey free to operate at will. And while Comey’s investigatory steps continued apace, he also continued his dishonest interactions with his new boss—Donald Trump. Comey’s actions, as would later become clear, were highly political and all aimed at undermining a new president.

  In his January 6 briefing of Trump about the dossier, Comey had offered a personal assurance that Trump was not the subject of any investigation. He repeated that assurance during a dinner with Trump on January 27. Trump continued to be appalled over the dossier allegations about what went on in a Moscow hotel room and told Comey he was debating having the FBI investigate to prove they were untrue. Comey, according to his own notes, counseled that “he should give that careful thought because it might create a narrative that we were investigating him personally, which we weren’t, and because it was very difficult to prove a negative.”

  Comey then appeared in front of the House Intelligence Committee on March 20, 2017, and took the extraordinary step of blaring out the news that the FBI was investigating “links between individuals associated with the Trump campaign and the Russian government.” This was remarkable, given the government usually declines to confirm the existence of any investigation, much less a counterintelligence probe. The entire performance was a Comey political classic. He liberally handed out soundbites that Democrats could use to pump the collusion theory, even as he refused to offer any concrete details about what had happened or what the FBI knew. He specifically declined to answer whether the FBI had any evidence of collusion. By the end of the show, the thundercloud hanging over the Trump administration had darkened, and the president was understandably concerned.

  Comey then reassured Trump for a third time: The FBI had briefed congressional leadership on precisely who was being targeted, and Trump wasn’t on that list.

  Trump wanted Comey to state that publicly—but Comey stubbornly refused. His excuse later was that he worried that if he publicly struck Trump off his target list and later found information implicating him, it would create “a duty to correct.” Undoubtedly. But at the same time, the FBI director was holding in his hands a crippling power over the office of the presidency. He’d made public that the FBI was investigating officials connected to Trump. By this point, not one of the four individuals originally targeted—Page, Manafort, Papadopoulos, Flynn—was working with the administration. Yet Comey hung out the possibility that even the president may be implicated. The uncertainty surrounding this open-ended probe was already strangling the administration’s ability to govern, and Comey had an unequivocal duty to clear the air.

  Even Comey admits that Trump welcomed an FBI probe into any Trump associates who might have engaged in wrongdoing. But Trump specifically asked Comey on several occasions to make public the fact that the president wasn’t under investigation—to remove what Trump called the “cloud.” Comey ignored him. He seemed to want the president to labor under the burden of suspicion.

  All along, we now know, Comey was memorializing every discussion he had with Trump. The memos are painful proof of just how politically unaware Trump was in his first months in office. He continued to speak frankly to everyone, even the politically ruthless FBI director. Among the “scandalous” revelations in the later Comey memos was th
at Trump had at one point told Comey that Flynn was a “good guy” and that he hoped Comey could let the issue “go.” Trump had said the same flattering things publicly about Flynn. But he should never have brought up that subject, or Russia, or anything to do with ongoing investigations with Comey the note-taking knife fighter. The G-man—who’d spent his life putting people behind bars—was writing down every word.

  Those memos are among the proof that Comey never treated Trump with the same deference that he afforded prior bosses, and that Comey’s primary interest was Comey. If the director was as alarmed by Trump’s comments about Flynn as he claimed to be in his memos, he had an obvious course. He had a legal duty to report it to his superiors and a moral duty to resign. Instead, he ferreted the information into a secret file. The memos were his insurance policy, potentially even leverage. He was laying down evidence he could use to protect his job, or to retaliate against Trump if he were fired. It had in it ugly echoes of J. Edgar Hoover, who used information his FBI collected against political rivals to inoculate himself from accountability.

  Comey did get fired, of course. The WSJ editorial page had called for Trump to axe the FBI head the minute he’d taken office. He was already infamous for his ego, and his handling of the Clinton affair was proof that this self-regard had skewed the FBI’s neutrality. The new administration didn’t listen, and it was four long months before Deputy AG Rod Rosenstein—now in charge of Russian issues, given Sessions’s recusal—issued his blistering memo explaining why Comey had to go. Rosenstein in his May 9 document laid out breaches of DOJ protocol in Comey’s investigation of Clinton: The FBI’s job is to make recommendations to DOJ prosecutors; Comey made the call on Clinton himself. The DOJ isn’t in the business of airing dirty laundry; Comey held a July 2016 press conference in which he exonerated Clinton but also berated her behavior. The Rosenstein memo was more than compelling, and it cited former attorneys general and deputy attorneys general—from both sides of the aisle—who supported this judgment of Comey’s behavior.

  The firing on May 9, 2017, nonetheless set off the second major scandal narrative of the Trump administration: obstruction of justice. Democrats only a few months earlier were calling for Comey’s head. Now the haters re-embraced the FBI director as a liberal martyr, claiming Trump had fired him to shut down the Russia investigation, and that the Rosenstein memo was a cover-up. This argument was, of course, nuts; if Trump’s goal was to obstruct the investigation, firing Comey was the dumbest way to do it. His termination guaranteed a seething new national obsession with the Trump-Russia collusion narrative.

  Indeed, it pushed the FBI to even greater abuses of power. The FBI had up to then investigated the Trump campaign at large; soon after Comey’s termination, his deputy, McCabe, ordered an investigation into the president himself. McCabe admitted the FBI had no evidence that Trump was knowingly working for Russians, but instead said they moved forward in part because of what they felt were concerning Trump comments—in public and private—about Russia. This was a dangerous rationale for an investigation—one that threatens future presidencies and foreign policy. Under the Constitution, the president alone has the authority to negotiate with foreign leaders. Presidents often engage in controversial interactions with their foreign counterparts, including rogue regimes. Nixon did so with China; more recently Obama did so with Iran. McCabe’s decision suggested the FBI had the authority to judge those contacts and potentially declare them criminal. If the FBI can open an investigation directly into a president over his foreign policy actions, every future president must fear the consequences of making a controversial foreign policy decision. That is incredibly chilling, and a destabilizing encroachment on core presidential powers.

  The probe also laid the groundwork for an official investigation into Trump over obstruction. McCabe would later claim he did all this because he was concerned Trump would try to shut the whole probe down. But this makes little sense, given that McCabe at the exact same moment (May 11) publicly testified to Congress that “there has been no effort to impede our investigation to date.” The more likely and concerning scenario is that this was the FBI acting in retribution; Trump had fired its beloved leader, and now it was gunning for Trump.

  And according to McCabe, that even included a stunning discussion in the days following Comey’s firing as to how the FBI might engineer Trump’s removal via the 25th Amendment. McCabe later said that Rosenstein raised this scenario, in the context of “thinking about how many other cabinet officials might support such an effort.” (Rosenstein would claim that he was never in a “position to consider invoking the 25th Amendment” and also point out that McCabe was fired from the FBI for lying—though he didn’t outright deny the discussion.) Assuming even a kernel of truth exists as to this conversation, it was as extraordinary as it was unprecedented. Trump was entirely within his constitutional prerogative to fire Comey, and yet Comey’s associates immediately talked about deposing him in what would have amounted to a coup. The 25th Amendment was passed after JFK’s assassination to allow for a transfer of power when a president is “unable” to discharge his duties. It’s supposed to be used only after demonstrated evidence of impairment, witnessed by those closest to a president. It doesn’t exist to settle political differences, or to allow scheming bureaucrats to nullify an election and decide who sits as president. The very conversation was an affront to the Constitution and another example of how an elitist political and media class has continued to pose a greater threat to norms than anything Trump is known to have done.

  The greatest consequence of the Comey firing was that it allowed the now-disgraced FBI director, and fellow haters, to engineer a special counsel. One week after his firing, the New York Times reported on the Comey memos, including Trump’s comments about Flynn. It later came out that Comey had orchestrated the leak. He’d provided the memos to a friend at Columbia Law School, using that cutout to get his information to the media. He’d also deliberately written some of the memos without classified information so that they could ultimately be made public—suggesting he’d been planning to use them all along. In one of his memos, Comey proudly recounts that he told Trump in early 2017: “I don’t do sneaky things, I don’t leak, I don’t do weasel moves.” Except, apparently, when he did.

  Comey with his leak sent a message to the FBI ranks: It’s okay to record conversations with politicians and make them public. He also likely violated ethical and department rules against releasing unauthorized or damaging FBI information about individuals. This was Comey once again demonstrating that he didn’t believe the normal rules applied to him. None in the Obama and Comey teams did, and they abused their positions to unmask, to place political opponents in legal peril, to leak, to subvert elected officials, and to undermine core powers of the executive branch. And the Resistance thinks Trump has overstepped boundaries?

  Comey later explained his entire goal with the leak was “to prompt the appointment of a special counsel”—and it worked. Democrats had for months been demanding a special counsel or a select House-Senate investigation to look into the Trump-Russia claims, but Republicans had resisted. It was the memos—which had been deliberately written and leaked to present Trump as having engaged in obstruction from his first days in office—that tipped the scales. Rosenstein cracked: On May 17, 2017, the day after the leak, the deputy AG announced that former FBI Director Bob Mueller would investigate Trump-Russia ties. More than a year earlier, Comey had set his sights on Trump. He might be gone, but he’d successfully passed the torch to Mueller. The collusion-obstruction circus was on.

  Chapter 5

  Masters of Obstruction

  When next you are tempted to think of our federal legislative branch as dysfunctional and lazy—as we are all routinely tempted to do—spare a thought for the Russia investigators. This was one case of the public getting its taxpayer money’s worth.

  The American public only knows about the FBI’s rogue operations because of a few resolute members of
Congress. The House and Senate Republicans who exposed the 2016 abuses reminded the country of the indispensability of effective oversight. Their triumph is all the more notable given the haters’ determination to deny them information. Justice Department and FBI partisans engaged in extraordinary acts of obstruction and undermined our constitutional separation of powers in ways that will haunt future Congresses and administrations.

  Congressional Democrats in their own fervor to block discovery meanwhile destroyed the reputation of the few remaining “grown-up” committees in Congress. They flouted committee rules, setting dangerous new precedents for the future. And they weaponized the ethics process, using it to sideline Republican sleuths. The Democrats’ desperation to cover up the real truth of the FBI’s behavior—and to keep the Trump-Russia-collusion narrative rolling—marked the beginning of a new partisan low in Congress, one that would grow worse with the return of Speaker Nancy Pelosi in 2019.

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  Devin Nunes knew that something was very weird, and very wrong, not long after the 2016 presidential election. He’d read the stories suggesting the FBI was looking into the Trump campaign but had dismissed them. He assumed that if the FBI was conducting a serious probe, it would have notified Congress. And as the head of the House Intelligence Committee, Nunes would have been the first to hear.

  In the aftermath of the November vote, Nunes started noticing a sharp escalation of attacks against him on social media and outlets like MSNBC. Attacks were nothing new for the California congressman; it was the subject matter that was bizarre. Liberal commentators started claiming he was in cahoots with Russia. Nunes had been a Russia hawk in Congress long before Russia hawks were fashionable. Only six months earlier he’d issued a scathing appraisal of the Obama administration’s Russia policy, calling the then-president’s failure to understand Putin’s plans and intentions one of the largest intelligence failures since 9/11. The attacks were so absurd, they made Nunes wonder what the hell was happening.