The Mueller Probe, Part 2: Comey's Firing

In part 1, I outlined James Comey’s contemporaneous notes on his meetings with Trump in the early days of the Trump administration, and transition.  We next turn to the firing of Comey which triggered the Mueller appointment.

There is nothing unusual about a government official keeping notes since they often form the basis of a future memoir, or even are used as reminders for policy formation and investigations.  When Comey wrote these notes, he was the FBI director- a government official.  Further, when Trump discussed the leaks of the phone calls with Australia and Mexico, Comey, in his own words, went to great lengths to explain that private discussions between foreign leaders should be kept secret and that this philosophy extended to private discussions within an administration.  

Something happened between April 11 and May 9, 2017 when things drastically changed in the relationship between Trump and Comey.  Based on a memo and letter from the acting attorney general, Rod Rosenstein, he suggested that James Comey be terminated as director of the FBI.

That letter from Rosenstein to Sessions- not the White House- said that James Comey, based on information from a variety of legal experts from both political parties, had broken FBI protocols in the handling of the Clinton email investigation.  He said that Comey had usurped the authority of the attorney general to announce the conclusion of the case on July 5, 2016 and that it was the proper role of the DOJ, not the FBI, to conclude a case closed.  He particularly took issue with the news conference on July 5, 2016 stating that the FBI has a longstanding policy against such actions where no criminal complaint results.  

He further took issue with Comey’s letter to Congress in October 2016 reopening the investigation stating that using the word “conceal” was inappropriate for an FBI director.  All these things, collectively, cast a shadow of doubt over the FBI and the public was losing confidence in the agency’s reputation as a non-political actor.  For these reasons, he suggested Comey be fired.  The memo is dated May 9, 2019 and Comey was fired later that day.  

Andrew McCabe took over and later recalled that Rosenstein was against the letter, but was forced to write it by Trump.  This conflicts with Rosenstein’s sworn testimony before Congress when he revealed that he and Jeff Sessions had discussed firing Comey, for different reasons, in 2016 before Sessions was attorney general.  Although the underlying reason was the handling of the FBI’s investigation of Clinton’s email server, they disagreed on how it was handled with Rosenstein concentrating on legal protocols, and Sessions concentrating on exoneration.  

What actually happened between April 11 and May 9 was that a federal grand jury was convened in Alexandria, Virginia and subpoenas were issued to associates of Michael Flynn.  Those subpoenas were likely the trigger that prompted President Trump to act.  

Some have made a point that this is possible obstruction of justice since Comey had previously testified that there was an ongoing FBI investigation (Crossfire Hurricane).  Because the FBI director is terminated does not mean that ongoing investigations are suddenly terminated.  In this case, the investigation was proceeding no matter who headed the FBI.  Surely, Sessions and Rosenstein knew that McCabe would become interim FBI director and according to Comey’s own notes, Trump had reservations about McCabe.  If this was obstruction of justice, as Trump’s detractors claim, why would Trump allow a person he considers a political enemy to become interim head of the FBI knowing that an investigation was ongoing?  It makes no intuitive sense.

There are three main lines of thought regarding Trump’s firing of Comey.  The first is that Trump simply accepted the reasons proffered in the Rosenstein letter and followed through on those thoughts.  The second is that Trump, despite what Comey wrote in his notes, simply did not like Comey.  In July 2016 when Comey exonerated Clinton, Trump took to Twitter and berated him.  In October when the investigation was reopened, Comey was back in Trump’s good graces.  When that aspect was then closed before Election Day, Comey was again a bad guy to Trump.  The relationship, despite the cozy dinners and private meetings, was nothing short of rocky.  Trump later told NBC correspondent Lester Holt that the Russian investigation played into his thinking about firing Comey, but the main reason was his handling of the Clinton email investigation.  The third theory is that Trump fired Comey because the FBI director knew something no one else knew about collusion between the Trump campaign and Russia.  

The Trump administration was caught off guard with respect to the reaction in the media and Congress.  This likely led to conflicting messages coming from the White House.  In fairness to Trump, he was never afforded the usual 100-day honeymoon usually given an incoming President.  Every move was controversial and every nomination challenged.  Democrats had engaged in obstruction and “lawfare” against administration actions, legislative initiatives were bogged down, and Trump was encountering resistance from his own political party.

A week after firing Comey, the New York Times reported that Comey had kept contemporaneous notes on all his private phone calls and meetings with President Trump.  The Washington Post and Wall Street Journal confirmed the story.  After being terminated, Comey gave his private notes to Benjamin Wittes, a personal friend.  

Wittes is a former Harvard law professor and journalist for the Washington Post who, in 2010 along with two others, founded the Lawfare blog dedicated to national security issues.  Wittes then admitted that he turned over the notes he obtained from Comey to reporters at the New York Times.  However, in Comey’s June 8, 2017 testimony before Congress, he said that he gave the February 14, 2017 notes to longtime friend Daniel Richman, a Columbia University law professor.

In that June 8th testimony, Comey was asked why he prepared the notes in the first place and he responded that he believed that Trump would lie about the meetings and phone calls and he wanted to keep the conversations fresh.  When asked why he shared the notes with people outside the government, he said he did so with the understanding the notes would be leaked to the press and this would prompt the appointment of a Special Counsel to investigate the Trump campaign’s ties to Russian officials.  

The ploy worked because one day after the New York Times story, with Sessions recused, the task fell to Rod Rosenstein who named Robert Mueller to effectively take over the ongoing Crossfire Hurricane investigation.  The original document stated such and only that.  However, within days of Comey’s firing, as acting FBI director, Andrew McCabe initiated an investigation as to whether the Comey firing was obstruction of justice by Trump trying to shut down the probe.  This line of investigation was later incorporated into the Mueller charging documents granting him authority to take over that investigation.  McCabe reached the conclusion to open the obstruction investigation after consulting with the FBI general counsel, James Baker, who considered the possibility of obstruction as a national security threat. 

The actions of Comey have to be questioned here.  In one of his memos, he told Trump he was “not a leaker” and he never did any “weasel moves.”  While he may not have been a leaker while FBI director, he was a deliberate, admitted leaker, albeit in a roundabout way.  Whether it was Wittes or Richman, handing over the notes was a deliberate act which achieved its desired outcome.  Although there had been calls in the media and Congress for the appointment of a Special Counsel, he pushed the issue.  And despite private meetings supposedly being “important,” Comey violated his own dictum. 

He further stated that he deliberately worded each note so that it did not include any classified information (indicating classified information was discussed and further supported by redactions in the published notes) so that the notes would at some point see the light of day.  Further, Comey subsequently hired Richman as his attorney thus blocking investigation of their connection under attorney-client privilege.  These are the actions of “a weasel.”

The rest is history as Robert Mueller took over the investigation beginning in May 2017 and began assembling his team of investigators.  Many had a relationship going back many years with Mueller and many were involved in the Crossfire Hurricane investigation and became investigators for his probe.

Next: Mueller’s band of misfits

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