In the early summer of 2013—what seems like a lifetime ago—James “Jim” Comey was nominated by President Barack Obama to serve a 10-year term as the director of the Federal Bureau of Investigation, the nation’s prime federal law-enforcement agency. Even in a time of fierce political divides, there was little divide about Comey, who at the time was a Republican. (He has since changed his party registration but not said to what.) He was confirmed by a vote of 93 to 1. “Jim is a natural leader of unquestioned integrity,” said Obama. And he was.
Chris Gair, a former prosecutor who was a student with Comey at the University of Chicago Law School, class of 1985, has called Comey “a giant of a man who has earned his job and his reputation with a lifetime of service.” Comey, who is literally a giant (six feet eight inches), made his name prosecuting terrorism cases in the Eastern District of Virginia, and then served in the powerful position of U.S. attorney for the Southern District of New York and as President George W. Bush’s deputy attorney general (D.A.G.), in the aftermath of 9/11. Those who have worked with him describe him as intelligent and charismatic, possessing both humor and humanity. “He knows the names of your family members, pops into your office to chat, and sends handwritten thank-you notes,” says a prosecutor who worked under him. “He inspires incredible loyalty,” says another. “People who worked for him feel like they would have marched up any hill for him.”
A former Southern District attorney recounts how on every new prosecutor’s first day in the office, Comey would tell the person that he loved his job as a prosecutor because it involved, by definition, doing the right thing. He cites as a formative influence the 20th-century realist theologian Reinhold Niebuhr, who urged Christians to become actively involved in politics to ensure the moral good.
How the perception of Comey has changed.
Today he stands at the center of the raging storm of rumors, reality, and rancor that was the F.B.I.’s investigation into Hillary Clinton’s use of an unsecure server to send and receive e-mail during her tenure as secretary of state. In early July 2016, after a year-long investigation that reportedly cost more than $20 million, Comey pronounced that “no reasonable prosecutor would bring such a case” against her for mishandling classified information. This caused Republicans to erupt in rage.
Four months later—11 days before the 2016 presidential election—Comey sent a letter to Congress saying he was reopening the investigation in light of new information found, but not yet examined, by the F.B.I. It was now the Democrats’ turn to erupt in rage—a rage that only grew when two days before the election Comey announced there was nothing new or incriminating about the purportedly new information.
The “October surprise” dominated the news cycle in the crucial last days of the election, allowing Donald Trump to claim on the campaign trail that Hillary would soon be indicted, and to lead his followers in chanting, “Lock her up!”
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After Hillary lost, Bill Clinton summed up what many Democrats and even some Republicans still believe: “James Comey cost her the election.”
Just days before her defeat, an open letter circulated among former federal prosecutors and Justice Department officials accusing Comey of unprecedented actions that had left them “astonished and perplexed”—as well as angry. “In our network, we are sad,” says the former Southern District attorney. “He was an American hero. Now who knows how he will go down in history?”
“He left himself completely exposed to charges that he acted in a way that affected the outcome of a political election,” says someone who was close to the e-mail investigation. “It has affected the reputation of the Justice Department and the F.B.I. in ways that are profound and will take years to comprehend.”
“It was a mistake of world-historic proportions,” argues another person, who was close to events.
In mid-January, the inspector general for the Department of Justice announced that he was opening an investigation into Comey’s conduct. In other words, it is far from over.
Was Comey’s October announcement a naked political gambit, planned in collusion with the Trump campaign and Republican operatives? None of the people I spoke with who had worked for Comey or knew him well believe this, not even those who are infuriated by his actions. A former Southern District prosecutor, who is extremely critical of what Comey did, says, “There is no one in the world that I think is less likely to do something for a bad reason than Jim Comey.”
The more complicated and interesting question, then, is why someone who prides himself on being apolitical became embroiled in a great political scandal. On top of that, why, long before October, did he set himself on a course where he began violating strongly held Justice Department and F.B.I. norms that prohibit speaking publicly about investigations, particularly of people you don’t charge and particularly when doing so might interfere with an election?
For original sin, you have to start with Hillary Clinton, who began using a private e-mail account tied to a server in the basement of her and Bill’s Chappaqua house in 2009, when she was Obama’s secretary of state.
In early July 2015, after reporters and congressional investigators looking into the 2012 attacks in Benghazi filed Freedom of Information Act (FOIA) requests but came up empty on Clinton’s e-mails, the inspector general of the intelligence community notified the F.B.I. of a potential compromise of classified information. This sort of security review isn’t uncommon—one source says that hundreds of such cases are referred every year—and the very notion of what’s classified is contentious in and of itself, with many arguing that the U.S. government has a huge over-classification problem. A former U.S. attorney observes, “[The classification system] is a huge cloud. Who classifies what? Who has a right to classify? Everyone is sloppy.”
But the probe into Clinton’s server quickly escalated, as reports appeared that she had deleted up to 30,000 e-mails that she considered personal. After an initial review of the matter, the F.B.I. opened a criminal investigation.
Fidelity, Bravery, and Integrity?
There is a mystique about the F.B.I., but the organization is still made up of human beings. “It is a really complicated agency and there have always been managerial issues,” says Dan Richman, a Columbia Law School professor and former federal prosecutor who has known Comey for 30 years. “It is supposed to be apolitical, but in a world where criminal investigations have an impact on politics it is going to be complicated.”
F.B.I. agents still tend to be white males. In a way, this situation is systemic: to be promoted, you have to be willing to relocate, which can be difficult for women with children. A current agent also says that there’s a strong conservative bent: if a TV is on in an F.B.I. building, it’s likely to be Fox News.
But even within the F.B.I., there are tensions. “There are three F.B.I.’s,” this agent tells me. “There are the [56] field offices, there’s [headquarters in] Washington, and then there’s [the field office in] New York.”
Often, a retired agent says, those in the field are suspicious of Washington. “Dreamland,” they called it in his day, because they believed those who weren’t on the ground investigating cases were clueless. “[Agents] out in the field never want to give a case to D.C., because they believe headquarters is a hindrance to their investigations,” says the agent, who also notes there is a paranoia that politics might interfere at headquarters. New York has an especially dim view of Washington and a reputation for fierce independence. “There is a renegade quality to the New York F.B.I.,” says a former prosecutor, which, he claims, can take the form of agents leaking to the press to advance their own interests or to influence an investigation. “New York leaks like a sieve,” concurs another former prosecutor.
There is also tension with the prosecutors in the Justice Department. The F.B.I.’s job is to investigate potential crimes, but they need one of the 93 U.S. Attorney’s Offices, or an attorney at so-called Main Justice, in Washington, to open a case. Agents often feel that prosecutors aren’t bold enough to bring the cases the F.B.I. has investigated. “If prosecutors don’t move forward, it’s often perceived by agents that they didn’t have the stones,” says Ronald Hosko, who was assistant director of the F.B.I.’s Criminal Investigative Division until he retired in 2014. Prosecutors, on the other hand, think that agents don’t want to understand the legal nuances that may separate smoke from prosecutable cases. “The F.B.I. thinks everything is criminal, particularly if they have spent more than a week on it,” says a veteran prosecutor.
Comey had early exposure to the law-enforcement community in that his grandfather, whom he calls one of his heroes, was a beat cop who worked his way up to commissioner of the Yonkers Police Department. Chris Gair, a classmate at the University of Chicago, says, “He didn’t go through law school saying he wanted to be a prosecutor, but we all knew he was determined to be one of the good guys.”
When Rudy Giuliani was the U.S. attorney for the Southern District of New York, he brought the young Comey into the highly prestigious office, where from 1987 to 1993 he was in charge of the case against financier Marc Rich, who had fled the U.S. after being indicted for tax evasion and illegal dealings with Iran. In 1996, Comey served as deputy special counsel for the Senate Whitewater Committee and, later that year, became an assistant U.S. attorney for the Eastern District of Virginia. In 2002, he was named the U.S. attorney for the Southern District of New York, where his most widely known case resulted in putting lifestyle guru Martha Stewart behind bars for obstruction of justice and making false statements. As U.S. attorney for the Southern District, he also led a criminal investigation into Bill Clinton’s highly controversial pardon of Rich, which resulted in no prosecution. President George W. Bush then appointed him deputy attorney general, in 2003.
But two cases established his reputation in legal and political circles. The first involved obtaining indictments for the 1996 Khobar Towers incident, when 19 American military personnel were killed in a terrorist attack in Saudi Arabia. The career prosecutors at Main Justice had been working on the case for nearly five years, so long that the statute of limitations was about to expire on some of the possible charges. Comey and another prosecutor named John Davis worked on it for about three months, and then, over a weekend, Comey holed up in his office and wrote a detailed indictment of one Lebanese and 13 Saudi suspects.
Even more famous is Comey’s dramatic hospital-room confrontation with members of the Bush administration, in early March of 2004, over the secret warrantless domestic-eavesdropping program, which caused a national furor when the press revealed its existence in late 2005. In what The Washington Post later called “the most riveting 20 minutes of Congressional testimony. Maybe ever,” Comey told the story of how he, as acting attorney general, filled in for his boss, John Ashcroft, who was hospitalized. After refusing to re-authorize the program, which he believed was illegal, Comey discovered that other members of the administration were planning an end run to get an incapacitated Ashcroft to sign off on it in his hospital bed. Comey “ran, literally ran,” up the stairs to prevent that, he testified. The next day he considered resigning.
“To know Jim Comey is also to know his fierce independence and his deep integrity,” said President Obama when, nine years later, he nominated him to serve as F.B.I. director. “He was prepared to give up a job he loved rather than be part of something he felt was fundamentally wrong.”
Well, yes. But did Comey really believe that the program was “fundamentally wrong”?
President Bush quickly gave his support to making changes to the program—changes that have never been disclosed publicly—and Comey stayed on as D.A.G. until August 2005, as the wiretapping program continued. The London newspaper The Guardian obtained a classified report about the incident, which made Comey’s objections seem to be less broadly substantive and more about legal technicalities involving just one part of the program.
Many would argue that legal technicalities are critically important, but some of Comey’s former D.O.J. colleagues carped to The New York Times that his actions had not been as heroic as they were portrayed. One observer cites Comey’s willingness to say, “I know what’s right,” even when doing so causes potentially avoidable drama. Another person who knows Comey well says, “There is stubbornness, ego, and some self-righteousness at work.”
Law and Disorder
In 2014, Obama chose Loretta Lynch to be his attorney general after Eric Holder resigned. Born in Greensboro, North Carolina, in 1959, she is the daughter of a school librarian and a Baptist minister, and the granddaughter of a pastor and sharecropper who helped blacks move to the North, away from Jim Crow laws, in the 1930s. After graduating from Harvard Law School, she became a federal prosecutor. In 1999 she was appointed by President Clinton as U.S. attorney for the Eastern District of New York.
Technically, the F.B.I. falls under the jurisdiction of the Justice Department, and technically Comey reported to Lynch. But it was always apparent that, as a former agent puts it, he was not going to say to any attorney general, “Mother, may I?”
Although views differ on both Lynch and Comey’s relationship with her, several people saw the seeds of problems to come. While she has inspired deep loyalty among some who worked for her in the Eastern District, one source close to the Justice Department says that as attorney general she was aloof internally and didn’t cultivate relationships. And impressive as her C.V. was, it was dwarfed by Comey’s. As Hosko says, Comey “literally and metaphorically casts the longest shadow in the room.”
“Comey discovered early on that he could walk all over her and she would let him get away with it,” says another close observer. “I think it was both of their faults. He wanted to be very independent, and he cultivates the integrity thing. She was a disengaged and weak A.G.”
On January 14, 2016, the inspector general notified the Senate that Clinton’s private servers had been flagged for classified information. Comey made the decision to run the investigation out of D.C., not New York, despite the fact that Clinton and her server were in New York. A core group of investigators and analysts were vetted and given security clearance, meaning that only those who were working on the case knew what they were doing.
Comey chose Washington because he wanted to be close enough to get daily updates, according to CNN, but he may also have been worried about leaks from New York. A former D.O.J. official says that, as early as 2015, a rumor was floating around that the F.B.I. agents in New York were cracking jokes about seeing Hillary Clinton in handcuffs. “It was widely understood that there was a faction in that office that couldn’t stand her and was out to get her,” this person says.
In the fall of 2015, President Obama told 60 Minutes that the Clinton e-mail issue was “not a situation in which America’s national security was endangered.” A former prosecutor who is close to the case says that the remarks sparked outrage in the F.B.I. “Disparaging the seriousness of something his A.G. is supposed to take responsibility for is not cool,” he says.
On February 24, Lynch told Congress that she had assigned career prosecutors—that is, non-political appointees—to work on the case and that it would be conducted as “every other case.” But efforts to stay outside of politics created its own politics, particularly between the F.B.I. and the D.O.J. One person who was close to events says, “The D.O.J. was afraid of the F.B.I., afraid if it did anything that the F.B.I. perceived as impeding the investigation they could be criticized and there would be political fallout. So the D.O.J. at every level abdicated the assertiveness we expect of prosecutors. It came from the very top.”
To make matters worse, on June 27, 2016, Bill Clinton went aboard Loretta Lynch’s plane on the tarmac in Phoenix for a chat, an event that is epic in the annals of bad decisions because it gave the appearance he was privately pleading his wife’s case. Lynch was in Phoenix for a routine meeting with local police officers, while Clinton was finishing up a fund-raiser for his wife. Lynch’s staff had no chance to intervene: they had already gotten off the plane. He told Lynch, who has a reputation for being polite, that he just wanted to say hello. “It would have been very awkward for her to say no,” says a source close to events. But Clinton then proceeded to talk for nearly half an hour about his grandchildren, about golf, and about travel, according to Lynch.
The furor among Republican conservatives over the tarmac visit was immediate, with Trump citing it as a perfect example of how “special interests are controlling your government.” The right-wing Judicial Watch sued the F.B.I. for records of the plane meeting. After the outcry, Lynch told the press that not only would she “fully expect to accept” the recommendations of the F.B.I. and the career prosecutors on the case but she’d been planning to do so all along.
But neither did she recuse herself and turn the case over to D.A.G. Sally Yates. A source says there was an internal debate over what to do and the decision was made that it would be bad for the Justice Department “if the A.G. relinquished her decision-making power,” as this person puts it, because then, “with every political case going forward, there would be an expectation that the A.G. would recuse.” Instead, they went with a middle ground.
“I fear that that was a judgment that was focused on her own reputation,” says another person who was close to events. “Under no circumstances should something like this be left to career lawyers without supervision. . . . All of the people with the authority to make decisions are political appointees. The statutes do not give career lawyers the authority to make decisions. That is for a good reason: the political appointees are accountable via the electoral process. That is how it works. It was an unfathomable decision to make.” This person adds, “Lynch created the situation where the F.B.I. director could freelance.”
One source, who is willing to excuse Lynch’s poor judgment, nevertheless says, “What she did and what the D.O.J. did [after the tarmac incident] is inexcusable. To say that a political appointee can’t sit in judgment is insane. It’s saying the Justice Department cannot do its job. The director of the F.B.I. is a political appointee!” This person adds, “[Lynch] was more than happy to have Jim Comey take responsibility. It was complete and total abdication.”
Case Not Closed
Into the vacuum created by Lynch’s refusal to either dismiss the tarmac incident or move out of the way stepped Jim Comey. That he would do so is not a surprise to anyone who knew him. On July 5, Comey held the press conference in which he announced that agents had found thousands of e-mails that contained government secrets, all of which had traveled unsecure, unclassified channels on Clinton’s private e-mail network. Nonetheless, he said, “we cannot find a case that would support bringing criminal charges,” in large part because they did not find intent, which is a critical element of most criminal cases.
Comey certainly knew that the career prosecutors, who had been working hand-in-glove with the F.B.I. agents, would agree with the decision. But he made it clear he hadn’t even informed the D.O.J., whose responsibility it is to decide whether to authorize an indictment, that he was holding a press conference. Lynch corroborated this, admitting that the D.O.J. had learned of the press conference only “right before.” Indeed, some at the D.O.J. turned to CNN to find out what Comey was saying.
Plenty of Comey’s longtime admirers were appalled that he had spoken at all, because by doing so he blew through several of the Justice Department’s long-standing policies. “It was an unprecedented public announcement by a non-prosecutor that there would be no prosecution,” says someone who once worked for Comey. The F.B.I. does not talk publicly about its investigations, and “it does not make prosecutorial decisions. Full stop.”
“[Comey] has said he did not consult with anyone at the D.O.J. beforehand so he could say it was the F.B.I.’s recommendation,” observes another former prosecutor. “But right there that is a massive act of insubordination.”
Comey then, according to his critics, compounded his mistake by declaring Clinton’s conduct and that of her aides “extremely careless.” This was another breach of protocol. Neither prosecutors nor agents criticize people they don’t charge. “We don’t dirty you up,” says Richard Frankel, who retired from the F.B.I. in early 2016 and now consults for ABC News. And Comey’s choice of language opened another can of worms. Unlike other criminal statutes, which, as a rule, require intent, the Espionage Act does allow for prosecutions of those who display “gross negligence.”
Those close to the case were also shocked by what Comey didn’t say. For instance, he didn’t point out that the “classified” e-mails had not been marked that way when they were sent or received, and didn’t point out that all the e-mails were to people who work in government—not to outsiders who aren’t supposed to receive such information. “He gave a very skewed picture,” says one person involved in the case. “The goal has to be that people understand the decision, and it came out exactly the opposite.”
How to explain Comey’s omissions? “I don’t think he was that well briefed,” says another person involved in the case. “It’s a function of being at the bureau and of Comey’s personality. It is so easy to get insular there. And Comey is not someone who cross-examines his own people. . . . It came across like there was something specific, but there was nothing there.”
Those who know Comey say that, while the decision for him not to recommend prosecution was an easy one, his unprecedented decision to speak about it publicly wasn’t. Some believe he might have taken the public route even without the tarmac incident, in part because he worried that prosecutors at Main Justice, instead of bringing the investigation to a close, would dither.
There’s also speculation that Comey’s decision to criticize Clinton was influenced by his prior experience, from Whitewater to Marc Rich, with her and her husband. But sources close to Comey insist that isn’t true, and that his decision to go into more detail was influenced by his desire to make people believe the process had been fair despite the appearance of impropriety. An F.B.I. source says that since the details of the investigation were going to come out, framed in hyperpartisan ways via congressional hearings and FOIA requests, Comey wanted to offer an apolitical framing of the facts first.
Critics, however, see in his decision a whisper of the Ashcroft hospital confrontation, with the dark side fully apparent. “This gets into speculation, but knowing Jim, he decides it is all totally fucked up and that he has to save the department and he alone can do it,” says someone who knows him well. “Megalomania kicked in.”
Comey had put his years of public service and his sterling reputation on the line, but that did nothing to persuade Republicans about the fairness of his investigation, and they refused to let go of the matter. In a July 7 congressional hearing, an incredulous Representative Trey Gowdy (Republican, South Carolina) proceeded to grill him about Clinton’s e-mail practices, statements under oath, and legal infractions, ultimately exclaiming, “Help the reasonable person . . . understand why she appears to be treated differently than the rest of us would be.”
Congress asked Comey to testify again on September 12, but he reportedly declined. They asked again, on September 28. This time, he obliged, and confirmed that the F.B.I. would not reopen its investigation. No findings at that point “would come near” to prompting such a measure, he told the congressmen. Louie Gohmert (Republican, Texas) continued the Republican harangue: “[The F.B.I. has] never seen anything like this.”
With the bureau’s probity questioned by Gohmert and others, Comey sprang to the defense. “You can call us wrong,” he said, “but don’t call us weasels. We are not weasels. We are honest people and . . . whether or not you agree with the result, this was done the way you would want it to be done.”
Agreeing to appear in front of the House Judiciary Committee about the investigation was yet another mistake, many believe, forcing Comey to answer questions he normally wouldn’t have. Lamar Smith (Republican, Texas) asked him if he’d reopen the case if he found new information. “It’s hard for me to answer in the abstract,” said Comey, who was under oath. “We would certainly look at any new and substantial information.”
Some factions within the F.B.I. were not in Comey’s corner—particularly New York. One agent even heard about a petition to have Comey removed. “All of a sudden people who thought he was the best guy ever were saying he should resign,” says this person. Hosko adds, “There was tremendous frustration about the notion that someone [like Clinton] could carelessly traffic in very sensitive material and walk away unscathed, arrogantly walk away and wait for her coronation.”
The disquiet within the F.B.I. was made public, largely by James Kallstrom, head of the F.B.I.’s New York office from 1995 to 1997. He is close to former U.S. attorney (and former New York City mayor) Rudy Giuliani, about whom he says, “When I was a young agent, he was a young prosecutor. We’ve known each other for 40 years.” During the campaign Giuliani was one of Trump’s most prominent supporters. In the weeks following Comey’s July announcement, both Kallstrom and Giuliani were all over conservative news outlets, talking about the “revolution,” as Giuliani called it, among the F.B.I. rank and file, who viewed the failure to indict as “almost a slap in the face to the F.B.I.’s integrity.” By late September, Kallstrom was telling the Daily Beast that he had talked to hundreds of people, “including a lot of retired agents and a few on the job” who were “basically disgusted” and felt they had been “stabbed in the back.”
A former prosecutor who knows Kallstrom says, “He is full of shit.” Another says, “The fact that a retired agent is on TV talking about a case usually proves that he doesn’t know the first damn thing about it.”
“I am somewhat dismissive of the grumbling among former and current agents,” says Hosko. “Some who criticize are completely unable to divorce themselves from their political beliefs, along with their feelings about the person [Clinton].” He adds, “I don’t believe for a half-second that Comey would make any decision that overrode his agents.” Indeed, in testimony, Comey said the decision not to proceed against Clinton was unanimous. (Which is almost certainly true but surely could be parsed: “Was there dissent? I guarantee it,” a senior former F.B.I. official tells me. “But they got to agreement.”)
There is another piece to the internal issues at the F.B.I. Agents, primarily in New York, had been trying over the last few years to put together a case involving financial crimes or influence peddling against the Clinton Foundation. One knowledgeable source says that agents went to several U.S. Attorney’s offices, trying to get prosecutors to open a case, before finally going to the Justice Department’s public-integrity office. This person says that the agents did not have any facts that would support prosecutors taking further steps. But angry agents leaked to The Wall Street Journal.
Much Ado About Nothing
On October 26, Rudolph Giuliani appeared on Fox News and said, “We got a couple things up our sleeve that should turn this around. Even the liberal pollsters will get to see.” When pressed about what these surprises would be, Giuliani broke into a smile and said, “You’ll see. Ha ha ha.”
Two days later, on October 28, just 11 days before the election, Comey sent his letter to Congress saying that “in connection with an unrelated case, the F.B.I. has learned of the existence of emails that appear to be pertinent to the investigation” of Clinton.
Fox News obtained the internal memo Comey had sent to the F.B.I. staff, in which he wrote that he felt “an obligation” to update Congress. Although he noted that we “don’t know the significance of this newly discovered collection of emails,” he thought it would be “misleading to the American people were we not to supplement the record.”
The e-mails, between Clinton and her aide Huma Abedin, were discovered during the F.B.I.’s investigation into unrelated allegations that Abedin’s husband, Anthony Weiner, had been sending illicit text messages to a 15-year-old girl in North Carolina from the silver Inspiron laptop he shared with his wife.
The story broke in the Daily Mail on September 21, and the F.B.I. seized the laptop on October 3. Within a couple of days, the New York F.B.I. agents, who had a warrant to look only at Weiner-related information, knew there were Clinton e-mails on the laptop, and the prosecutors in D.C. were informed. But investigating electronic information can be a lengthy process, and it wasn’t until the middle of the month that the agents said there were a lot of Clinton e-mails and that they appeared to cover a three-month period at the start of Clinton’s tenure at State that had previously been missing, says an official familiar with the investigation. This was a big deal, because her e-mails from that period hadn’t been recovered. On the 27th, Comey was briefed, and agents argued that they needed to get a warrant to go through the new e-mails.
Comey agreed with his agents, and that afternoon the F.B.I. alerted the Department of Justice that he planned to write the letter updating Congress. “If it were easy to see that it was the same [e-mails found on Clinton’s computer, which proved to be largely the case], you can see your way to a different decision, but if they’ve made a compelling case that it’s new, how do you see your way to doing anything else?” asks one friend. Nor did the F.B.I. think that it would be possible to go through the new e-mails quickly. “If we had known we would have been able to reach a conclusion quickly, that might have colored the decision-making,” says an official familiar with events. But most of all, the F.B.I. was worried that if it came out that they had kept silent, and the existence of the e-mails was revealed after the election, it would give credence to claims, which were already being circulated by Trump, that the election results were illegitimate.
Officials at the D.O.J. tried to convince the F.B.I. that all Comey had promised Congress was that he would take a look at new information, that he risked creating another misimpression by sending a letter, that doing this so close to an election was insanity, and that “the overwhelming odds are that this will amount to nothing,” as one former official puts it.
One argument that the F.B.I gave in response was that now that the circle had become much bigger, including agents in New York, the probability of a leak was high and would only increase once the request for the warrant was filed. “Yes, it was absolutely explicit that one reason for the letter was that the agents in New York would leak it,” says a Justice Department source. “That is a crappy reason. You can’t manage your people? And a leak would have been better than what happened.” (In fact, on the morning of November 4, Giuliani returned to Fox & Friends, to gloat, “Did I hear about it? You’re darn right I heard about it.” Later that day, he tweeted, “I still challenge someone to produce proof of my direct involvement w @fbi.”)
But, multiple sources say, the Justice Department never ordered Comey not to send the letter, and neither Lynch nor Yates personally called Comey. Instead, staff called over to the F.B.I. A source says, “I do know that [Lynch] never spoke directly to Comey, and she didn’t allow the D.A.G. to speak to him. . . . In his position, I would have understood this as permission to do what I wanted.” He adds, “Before something this consequential would occur, you would at least want the A.G. to look Jim Comey in the eye and say, ‘Do not do it.’ ”
On November 6, two days before the election, Comey informed Congress that the F.B.I. had seen the e-mails and that the bureau had not changed its conclusion that Clinton should not face charges over her handling of classified information.
The result was predictable: Republicans again insisted the game must be rigged, and Democrats couldn’t believe Comey had re-ignited the issue on the eve of the election. Even the Justice Department joined the blame game, leaking a story to The New York Times in which officials claimed they’d done practically everything possible to dissuade Comey from sending the letter.
One source disagrees, saying: “As immense as my criticism is for Comey, it is greater for the A.G. and the D.A.G. If they had said, ‘You can’t send that letter,’ he wouldn’t have done it.” “They claim they couldn’t have stopped it, but that is bullshit,” says a former prosecutor, who says that, even today, “they don’t get it, don’t admit responsibility. They say, ‘We couldn’t do anything—you know what he’s like.’ ”
Another observer, who is deeply familiar with the Justice Department, adds, “I know exactly why they didn’t call themselves! They were all thinking, Hillary is going to win. If you could look back and say this would swing it to Donald Trump, you would do anything to stop it, but they were worried that, if they told Comey not to do it, that would leak [from the F.B.I.], and they would be accused of interfering.” (Lynch, Comey, and Yates declined to comment for this article.)
“People say [Lynch] should have ordered him not to do it. I get with 20/20 hindsight why people feel that way,” a Justice Department source responds. “But it was not a situation where [Comey] said, ‘We need to talk.’ It was presented as ‘The director intends to do this. He has an obligation to correct a misimpression that Congress has as a result of his testimony.’ It was portrayed as ‘His reputation is on the line.’ When it is framed that way, as ‘I need to do this or Congress will be misled,’ all of the A.G.’s options are bad. Either he obeys, and she is accused of obstructing justice. Or he disobeys and does it anyway. Or he resigns. All of these are terrible. He put her in an impossible situation.”
“Lynch and Jim Comey were engaged in the same dance,” says another source. “He wasn’t going to have history judge him negatively as having covered things up, and she wasn’t going to have history judge her negatively with political interference. Both were protecting their own reputations and legacies at a great cost to the country.”
There is certainly some truth to the notion that the F.B.I. might have leaked, but few who know Comey think that was the reason he wrote the letter. Friends say it was not even a hard decision for him, because he’d already set himself on this course of total transparency. “If he had given no indication that the F.B.I. had potentially bad e-mails and those came out in January, that would be a bet-your-agency decision,” says Richman.
But to critics the dilemma was still of Comey’s own making, because if he hadn’t said anything in July, and compounded that by testifying before Congress, he wouldn’t have found himself in a situation where there was no easy right answer. “He is a man of integrity, and he holds himself to high standards,” says a person who knows him well. “But he didn’t see the bigger issue. All he could see was ‘Will they question my integrity?’ I think it was his integrity he was worried about, not the bureau’s, and the bureau’s integrity has suffered a devastating blow as a result of his decision-making. He would have protected the bureau by playing it by the book.”
Even Comey’s close friends acknowledge that his great strength is also his great weakness: a belief in his own integrity. “He believes this in a way that creates big blind spots, because he substitutes his judgment for the rules,” says Matt Miller, a former director of public affairs for the D.O.J.
Neither publicly nor privately has Comey shown any doubt about how he handled things. “I would be lying if I said the external criticism doesn’t bother me at all,” he wrote in a New Year’s memo to employees, “but the truth is, it doesn’t bother me much because of the way we made the decision.” At a holiday lunch for former agents, Comey even called his July decision the best one he had made.
On January 24, The New York Times reported that President Trump had asked Comey to remain as F.B.I. director. One close observer speculates that Trump likes the fact that Comey has been weakened, although the politics of removing him would have been terrible, given that Comey will stay in charge of investigating several Trump associates and their potential connections to Russia. Even some of Comey’s fiercest critics say they are glad. As one of them puts it, “If Trump says, ‘Let’s shut down Amazon’ because he doesn’t like something The Washington Post wrote, Comey won’t do it, and in this environment, the country needs someone like that.”
