It is the first responsibility of every citizen to question authority.
—BENJAMIN FRANKLIN
HISTORIANS OF TOTALITARIAN REGIMES OFTEN WRITE about the people who supported and contributed to evil (collaborators) and those who opposed it (resisters). In addition, there are two other categories of actors. A great many people do nothing and remain silent in the face of evil. A fourth even more interesting category includes people who actively contributed to bringing about evil but then turned around and stood up to evil, paying for this decision with their careers and sometimes with their lives.
These people—those who actively do both evil and good—are in some ways the most tragic figures in tragic historical situations.
In the Nazi regime, for example, the first category included Hitler’s confidants and a great many Nazi Party members who were loyal to the end, as well as much of the German military. Then there were resisters, many of whom were executed or perished in concentration camps. Third, there were millions of German citizens who may not have been enthusiastic about Hitler, but they kept quiet and often benefited from the evil as well as facilitated it. Fourth, there was a small group of people who started out helping Hitler and then turned against him, even if late in the game. Most notably, Claus von Stauffenberg and other conspirators had supported Nazism for years but on July 20, 1944, attempted to assassinate Hitler with a bomb. If successful, they probably would have saved hundreds of thousands if not millions of lives. The plot failed and these men paid with their own lives.
The United States is not a totalitarian state. We use the Constitution, not coups and assassination plots, to stand up to and remove totalitarian leaders. We are a nation of laws.
But here also, when we face the threat of authoritarian rule and constitutional crisis, there are people who fall into each of these four categories. There are those who collaborate with authoritarianism; people who resist and stand up for the rule of law regardless of personal and political loyalties; those who remain silent in the face of authoritarianism because it is politically convenient, even if the personal cost of speaking truth to power would be far less than in a true dictatorship; and then there are those who both contributed to the evil and opposed it.
These are the people, often quite powerful, who on the moral spectrum between right and wrong fall in between.
This chapter discusses two such men.
JAMES COMEY
In many respects, former FBI director James Comey is a tragic figure. A veteran prosecutor—and a Republican—he had been appointed to lead the FBI by President Obama because, among other things, during the Bush years he had been willing to stand up against illegal domestic surveillance tactics advocated by many in the White House and the CIA. Comey had an independent mind.
But then, as director of the FBI, he quickly was dragged into the investigation of Hillary Clinton’s use of a private email server when she was secretary of state. Because the private email server could have contained classified information, it was important to involve the FBI at least to find out how much classified information there was (in fact very little) and whether it had been compromised. The idea that Clinton, apart from her negligence, had committed a crime was near laughable.
Negligent handling of classified information can technically be a crime, but there is virtually no record of anyone ever having been prosecuted for it.
The Republican-controlled House of Representatives, and most of all its Oversight and Government Affairs Committee, said this was different. Clinton had committed a serious crime, charged the Republicans, not because what she had done with her email was stupid (it was), but because she was Hillary Clinton. Republicans since 1992 had been accusing the Clintons of crimes ranging from rape to murder and even treason. Because Clinton was running for president in 2016, whatever she did was a crime in the eyes of a Republican-controlled House.
This was a situation that James Comey and the FBI should have avoided. He could not prevent politicized congressional investigations, which after 2012 focused more on Clinton than any other actors in the Obama administration. But Comey should have kept FBI involvement to a minimum and kept the FBI where it belongs—out of partisan politics.
At that he failed.
The story ends, as we know, in October 2016 when, just a week before the presidential election, for no good reason whatsoever, Comey sent a letter to the US House Oversight Committee suggesting that the FBI was continuing to look into Hillary Clinton’s emails.
That single letter may very well have cost her the election.
This tragedy—for Comey and the FBI—began over a year earlier. The FBI spent months investigating whether Clinton’s use of a private server was a criminal offense, and in July 2016, Comey said he would not seek to indict her. In a letter he explained the reasoning behind his decision. He went far beyond the comments that a prosecutor usually makes when deciding not to indict someone.
“Clinton had mishandled the classified information,” he wrote, but then he gave his opinion that she was too inept to know the risks she was running; ergo, he couldn’t prove she did it intentionally.
Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.
In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.
To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.
Director Comey thus said that he found Clinton’s behavior to be unacceptable, if not criminal, and that he believed people who did what she did should suffer “consequences.” This statement was almost an invitation to voters to impose “consequences” on Hillary Clinton in November.
Meanwhile, the FBI remained silent up through the election concerning what it knew about the far more dangerous situation of the Russians seeking to sabotage the election and possible ties between the Russians and Trump’s associates. Trump may refer to this pre-election investigation of Russian activities as the FBI “spying” on his campaign, but it was a critically important counterespionage operation. American voters heard nothing about it until after the election, but they heard a lot about Hillary’s email.
In this statement about Clinton, the FBI ventured where it never should—into a one-sided evaluation of the moral character of a presidential candidate, all while remaining silent about the enormous national security risk posed by her opponent, Donald Trump.
Democrats were scratching their heads over Comey’s need to opine on the propriety of Clinton’s actions, especially in light of the upcoming election four months hence.
Though Hillary Clinton was cleared of criminal behavior, Republicans insisted on accusing her anyway. The “Lock her up” chant went viral over the summer and at the Republican National Convention.
Comey then topped it all off with an October surprise. A week before the election he threw gasoline on the fire in such a way that Donald Trump and his supporters in Congress could make maximum hay over essentially nothing.
In a letter of October 28, 2016—sent just four days after WikiLeaks released John Podesta’s stolen emails and eleven days before Election Day—Comey informed the House Oversight Committee that his agents had learned of new emails “pertinent” to their probe while working on an unrelated case. Comey told Congress that FBI agents needed to review those messages for classified information and any relevance to the now closed investigation of the Clinton email server. The letter in its entirety states:
In previous congressional testimony, I referred to the fact that the Federal Bureau of Investigation (FBI) had completed its investigation of former Secretary Clinton’s personal email server. Due to recent developments, I am writing to supplement my previous testimony.
In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation. I am writing to inform you that the investigative team briefed me on this yesterday, and I agreed that the FBI should take appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.
Although the FBI cannot yet assess whether or not this material may be significant, and I cannot predict how long it will take us to complete this additional work, I believe it is important to update your Committees about our efforts in light of my previous testimony.
A day later it was reported that the new emails didn’t come from Hillary Clinton. They came from a computer obtained in the investigation of Anthony Weiner, the former congressman from New York who had been found guilty of sexting with a fifteen-year-old girl. Weiner was married to Huma Abedin, a top personal aide to Hillary Clinton. The emails, as Comey would learn—too late—were from the Weiner investigation, and any Clinton-related emails were almost certainly duplicates of emails that already were on the server that had already been examined by the FBI.
Nevertheless, when Comey was briefed on the existence of the “new” emails, he felt a need to tell the House Oversight Committee.
The letter was gleefully leaked to the press by Representative Jason Chaffetz, a Republican from Utah, and the letter went viral.
Trump was campaigning in Manchester, New Hampshire, when he heard the news.
“Perhaps, finally, justice will be done,” he said, as his followers roared.
The FBI findings were “a damning and unprecedented indictment of her judgment, and the new statement doesn’t change anything,” said Republican National Committee Chairman Reince Priebus. He added, “None of this changes the fact that the FBI continues to investigate the Clinton Foundation for corruption involving her tenure as secretary of state.”
Hillary Clinton, on her part, pleaded in vain with voters to “focus on the issues.”
On October 30, two days after Comey’s letter became public, one of our authors wrote an editorial in the New York Times contending that the actions of Comey and the FBI so close to the election were both highly improper and an abuse of power.
Said Painter, “The FBI’s job is to investigate, not to influence the outcome of an election.” He added that what Comey did was also a violation of the Hatch Act, which bars the use of an official position to influence an election.
“It is not clear whether Mr. Comey personally wanted to influence the outcome of the election, although his letter—which cast suspicion on Mrs. Clinton without revealing specifics—was concerning. Also concerning is the fact that Mr. Comey already made unusual public statements expressing his opinion about Mrs. Clinton’s actions, calling her handling of classified information ‘extremely careless,’ when he announced this summer that the FBI was concluding its investigation of her email without filing any charges.”
The piece concluded, “This is no trivial matter. We cannot allow the FBI or Justice Department officials to unnecessarily publicize pending investigations concerning candidates of either party while an election is underway. That is an abuse of power. Allowing such a precedent to stand will invite more, and even worse, abuses of power in the future.”
On November 6, 2016, just two days before the election, Comey wrote a second letter to the lawmakers informing them that his July conclusion hadn’t changed. There were no grounds for prosecuting Hillary Clinton for her emails.
But the damage had been done.
The public reaction to the second letter was like a pebble in the ocean. The damage to Hillary Clinton’s presidential campaign was irreparable. Comey’s October 28 letter was used by the Republican majority in the House—and by Donald Trump—to help throw the election to Trump’s favor.
According to analyst Nate Silver, Hillary Clinton would probably be president if FBI Director James Comey had not sent that letter. Said Silver, it “upended the news cycle and soon halved Clinton’s lead in the polls, imperiling her position in the Electoral College.”
Silver said Comey’s letter wasn’t the only reason she lost, but it played a big part.
“Because Clinton lost Michigan, Pennsylvania, and Wisconsin by less than one point,” he said, “the letter was probably enough to change the outcome of the Electoral College.”
One would think that Donald Trump would feel a deep gratitude to James Comey for helping him win the election. But Trump does not feel indebted to anyone. From his perspective, others are supposed to be in debt to him. Trump also had a problem. Comey was well aware he had been instrumental in installing Trump into the White House, and he had an obligation to complete the FBI’s investigation of Russia’s interference in the election.
Comey, like Trump, had sworn an oath of office to “support and defend the Constitution of the United States against all enemies foreign and domestic.” Unlike Trump, Comey believed in the oath with all of his being. His loyalty came first to the United States and only secondarily to the president, and that created a serious problem for both of them.
Comey had used extraordinarily bad judgment in the Clinton email investigation, but he was a loyal American. If there was credible evidence that the Russians had interfered in an election, and that Americans may have helped them do it, he was going to investigate it.
During Trump’s transition period, Comey presented him with evidence that Russia had collected compromising information about him. This information came from the Steele dossier and showed that Trump had ties to Russia long before the election.
On January 27, 2017, just seven days after assuming office, President Trump invited Comey to the White House for a tête-à-tête dinner meeting. Comey suspected that Trump was seeking to create a relationship, but Comey was taken aback when, as they ate, Trump said to him, “I need loyalty. I expect loyalty.”
In response, Comey declared he would always be honest with the president, but told him, “I am not reliable in the conventional political sense.”
Comey then attempted to explain to Trump how he saw his role as FBI director as it was proscribed by the Constitution. Comey told Trump the country would be best served if the FBI were independent of the president.
Trump, unhappy with Comey’s answer, again told Comey he needed his loyalty.
Comey again said he would pledge his honesty and not his loyalty.
“Will it be honest loyalty?” Trump wanted to know.
“You will have that,” Comey said.
Observers tried to explain away Trump’s behavior by saying he didn’t know that members of the FBI were not supposed to be politically loyal. Congress had given FBI directors a ten-year term to make them independent of the president. Trump either had no knowledge of the role of the FBI or most likely he didn’t care. To Trump, loyalty to him is more important than competence, experience, or loyalty to the United States and to the rule of law.
Trump made this clear after Michael Flynn, who had been on his transition team, was caught talking to Russian ambassador Sergey Kislyak. When the FBI asked him about the phone calls, Flynn lied. Sally Yates, the acting attorney general, feared that Flynn would be subject to blackmail by the Russians because they knew he had lied. Presidential candidate Trump earlier had been informed by the FBI that Flynn was a paid lobbyist for the Turkish government during the campaign. He was committing a crime by not registering.
Despite these warnings, Trump promoted Flynn to national security advisor.
When Flynn’s illicit activities became public a few weeks into his term, Trump had no choice but to fire Flynn. Shortly afterwards, FBI Director Comey launched an investigation into Flynn’s activities.
Trump then met with Comey in a clumsy attempt to stop the investigation. In a meeting, he asked Comey to drop the probe.
“I hope you can see your way clear to letting this go, to letting Flynn go,” said Trump. “He’s a good guy. I hope you can let this go. Flynn hasn’t done anything wrong.”
Comey was horrified that Trump was putting him in such a compromising position.
“I agree he’s a good guy,” was Comey’s response.
Comey would go on to keep notes on all his conversations with Trump. He did it for self-protection, considering Trump’s reputation for lying.
“I was honestly concerned that he might lie about the nature of our meeting, so I thought it really important to document,” he said during a later Senate hearing. “I knew there might come a day when I might need a record of what happened not only to defend myself but to protect the FBI.”
As Comey predicted, Trump denied he ever said what Comey reported.
“The president has never asked Mr. Comey or anyone else to end any investigation, including any investigation involving General Flynn,” said a White House statement. “The president has the utmost respect for our law enforcement agencies, and all investigations. This is not a truthful or accurate portrayal of the conversation between the president and Mr. Comey.”
More important than the issue of who was lying was Trump’s insistence on loyalty. In his private life, an employee’s vow of loyalty to Trump was a precursor to getting hired.
In a truly stunning development, on Tuesday, May 8, 2017, Trump fired Comey, at the same time as Comey and the FBI were investigating Flynn and also whether anyone in the Trump campaign had conspired with Russia to influence the 2016 presidential election.
Trump clearly had fired Comey to remove him from the Russia investigation.
Trump must have had the sense that admitting his reason for firing Comey would expose him to criminal prosecution for obstructing justice, and so as his excuse, Trump said he was firing Comey for mishandling the FBI’s investigation of Hillary Clinton.
The excuse was perplexing, because it had been Comey’s letter about Clinton’s email that helped to swing the election to Trump.
In his dismissal letter, Trump wrote to Comey, “I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the bureau.”
Trump pushed the story line that Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein were the ones pressing for Comey’s dismissal. Rosenstein had written a letter saying, “I cannot defend the director’s handling of the conclusion of the investigation of Secretary Clinton’s emails, and I do not understand his refusal to accept the nearly universal judgment that he was mistaken.”
Everyone was sure Rosenstein wrote the letter under Trump’s orders. The last sentence sounded like it was written by Trump himself, who during the campaign and even after the election was full of fury that Hillary Clinton had been found innocent of any wrongdoing.
When Comey saw the announcement of his firing on television, he laughed, because it seemed so absurd. Not long afterwards he received Trump’s letter of dismissal.
For many, the firing of James Comey reeked of obstruction of justice.
A few days later, Trump met with Russian foreign minister Sergey Lavrov.
The meeting added to the collusive smell.
In a hearing before the Senate a month later, in June 2017, Comey accused the Trump administration of spreading “lies, plain and simple,” about him and the FBI.
During the hearing Senator Dianne Feinstein of California asked about the meeting in which Trump asked him to kill the Flynn investigation.
“Why didn’t you stop and say, ‘Mr. President, this is wrong’?” she asked Comey.
“That’s a great question,” said Comey. “Maybe if I were stronger I would have. I was so stunned by the conversation, I just took it in.”
Comey was also asked whether Russia did, indeed, meddle in the 2016 election. Trump all along had been calling the investigation “fake news.”
“There should be no fuzz on this,” Comey said. “The Russians interfered. That happened. It’s about as unfake as you can possibly get.”
JEFF SESSIONS
Jeff Sessions is our second tragic figure.
Sessions—an extremely conservative senator from Alabama—was one of the first US senators to back Trump’s presidential bid, and he was a very active leader in the Trump campaign.
In February 2017, during Sessions’s confirmation hearing for attorney general, Senator Al Franken of Minnesota asked Sessions what he would do if he learned of evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of the 2016 campaign. Sessions denied even knowing about such contacts, much less making them himself.
On his written Senate confirmation questionnaire, Sessions denied having any communication with the Russians. He also denied talking to the Russians about the 2016 presidential campaign.
Not true. Sessions had two conversations with Russian ambassador Kislyak in July and September 2016 when Sessions was an advisor to the Trump campaign.
A spokesperson tried to defend Sessions by saying his contacts with the Russian ambassador were made in his capacity as a member of the Senate Armed Forces Committee, not as a Trump campaign worker.
If that had been true, Sessions should have revealed that fact at the confirmation hearing. Instead, he had kept his conversations with Kislyak secret.
What Sessions had done was reminicient of the case of Richard Kleindienst, who in 1972 was confirmed as attorney general after John Mitchell resigned to run Nixon’s reelection campaign. Kleindienst was asked several times during his Senate confirmation hearing whether he had interfered in the antitrust suit against ITT, a big-pockets contributor to the Nixon campaign. Kleindienst said no, but then special prosecutor Leon Jaworski uncovered a White House tape of a phone call in which President Nixon told Kleindienst to drop the case against ITT. Kleindienst later pleaded guilty to misleading Congress, a misdemeanor. Most important, he had been forced to resign as attorney general.
When the Sessions news broke, many—including one of your authors (Painter) in an editorial in the New York Times—called for Sessions to be fired or to resign.
Concluded Painter in this editorial, “President Trump has already fired his national security advisor, Michael Flynn, for misleading Vice-President Pence about his conversations with the Russians. Misleading the United States Senate in testimony under oath is at least as serious. We do not yet know all the facts, but we know enough to see that Attorney General Sessions has to go as well.”
One hundred members of the House of Representatives (all Democrats) signed a statement urging Sessions to step down. Said House Minority Leader Nancy Pelosi, “Attorney General Sessions must resign immediately. Our security and our democracy have been undermined by Russia’s meddling, and this administration clearly cannot be trusted to investigate itself. There must be an independent, bipartisan, outside commission to investigate the full extent of the Trump political, personal, and financial connections to the Russians.”
Sessions refused to resign, but on March 1, 2017, he recused himself from heading the Russian probe. Sessions had done wrong—he had helped Trump get elected and knew a lot more about the Russians than he had told his colleagues in the Senate, even under oath. But by recusing, he would do right.
Sessions had no choice, not just because of the embarrassment from having been caught stating an untruth under oath, whether inadvertently or intentionally, but also because federal ethics rules and lawyers’ ethics rules prohibited him as the chief law enforcement officer in the United States from supervising an ongoing investigation of the Trump campaign when he had been a senior leader of the campaign during the entirety of the relevant time period when the Russians interfered with the election and had significant contacts with the campaign. Sessions could not investigate himself. He had to recuse.
By recusing himself, however, Sessions became a primary target for President Trump’s wrath. Trump had expected Sessions to kill the investigation into Russian meddling in the election, but with Sessions’s recusal, his ability to stop or hinder the investigation now had vanished.
When asked whether Sessions should have recused himself, President Trump said, “I don’t think so.”
Behind the scenes Trump ordered White House counsel Don McGahn to try to stop Sessions from recusing himself. When McGahn didn’t succeed, Trump reacted angrily, saying he “needed his attorney general to protect him.”
Two months later, on May 17, 2017, Trump was holding a meeting with Sessions, Vice President Mike Pence, and White House attorney Don McGahn to discuss who should replace FBI head Comey. During the meeting McGahn received a phone call. It was Assistant Attorney General Rod Rosenstein saying he had decided to appoint former FBI head Robert Mueller to head the Russian probe.
McGahn hung up and gave President Trump the news. His response was a string of insults. To Sessions’s face, he said he blamed him for the tough spot he was in, and he said, “Choosing you to be attorney general was one of the worst decisions I ever made.”
Trump said, “You’re an idiot. You should resign.”
Sessions told Trump he would resign and stormed out of the meeting.
Sessions would tell associates that it had been the most humiliating experience of his public life.
Sessions, shaken, immediately sent Trump a letter of resignation, but senior members of Trump’s administration pleaded with Trump not to follow through. After all, Trump had already fired James Comey, his FBI director, and Michael Flynn, his national security advisor.
Two months later, in July 2017, Trump again considered firing Sessions, but again was talked out of it. Sessions told reporters he didn’t want to quit because he wanted to bolster the country’s strict immigration policies. On July 19 in an interview with the New York Times, Trump again commented that Sessions never should have recused himself.
“Jeff Sessions takes the job, gets into the job, recuses himself, which frankly I think is very unfair to the president,” said Trump. “How do you take a job and then recuse yourself? If he would have recused himself before he took the job, I would have said, ‘Thanks, Jeff, but I’m not going to take you.’ It’s extremely unfair—and that’s a mild word—to the president.”
He later told the Wall Street Journal, “I’m very disappointed in Jeff Sessions.” Trump said Sessions would serve as attorney general “as long as it’s appropriate.”
Sessions remained in office, taking Trump’s constant abuse. In his book Fear, Bob Woodward reported that Trump had called Sessions “mentally retarded” and a “dumb Southerner.” (Trump then accused Woodward of telling lies and having lousy sources.)
Unable to abide Sessions any longer, on November 7, 2018, Trump demanded that he resign.
Upon leaving office, Sessions defended himself.
“In my time as attorney general we have restored and upheld the rule of law—a glorious tradition that each of us has a responsibility to safeguard. We have operated with integrity and have lawfully and aggressively advanced the policy agenda of this administration.”
But like so many who toiled under President Trump, Sessions, who was hired in large part for his conservative views on social issues, his commitment to law enforcement, and his anti-immigrant stances, left as yet another victim of Trump’s loyalty to no person other than himself.