Law & the Courts

McCabe and 60 Minutes Avoid Discussing Why Russia Factored in Comey’s Firing

Andrew McCabe on 60 Minutes (<i>60 Minutes</i> via YouTube)
Trump wanted Comey to state publicly what he had insinuated to the president privately: that Trump was not a suspect.

Andrew McCabe is a good witness and he made a favorable impression, at least on me, in his 60 Minutes interview with Scott Pelley. Pelley and his editors did a great job highlighting McCabe’s down-to-earth likability. Unlike Jim Comey, a career prosecutor and corporate lawyer before he became FBI director, former deputy director McCabe is a career agent; his relation of events smacks of the Bureau’s “just the facts, ma’am” ethos. And McCabe’s account of Trump telling him to ask his wife what it was like to be a “loser” (after she lost a Virginia state senate race) is devastating, precisely because it sounds just like something Trump would say.

That aside, there are problems with McCabe’s story.

First, Pelley failed to ask him the screamingly obvious questions: What about Russia did Trump want included in Deputy Attorney General Rod Rosenstein’s memo supporting Comey’s dismissal? McCabe obliquely said Trump wanted Rosenstein “to put Russia in” the memo about Comey (I’m quoting from memory). But Pelley never asked what in particular about Russia Trump wanted included. What about Russia was Trump referring to when he spoke — in conversations with NBC News and Russian diplomats — of Russia’s part in Comey’s firing? Pelley highlighted the word “Russia,” but he sidestepped what Trump was concerned about regarding Russia.

The viewer was thus left to conclude, from McCabe’s other comments, that Trump must have fired the FBI director because he was fearful of the Bureau’s investigation of Russia’s interference in the election; because he was concerned that the FBI would find that Russia intended to benefit Trump and would therefore deduce that Trump was complicit.

But that is misleading. We know that what Trump wanted made public was something very specific about Russia, namely, that Comey repeatedly told the president he was not a suspect in the Russia investigation. Trump was frustrated — over time, ballistic — over the fact that Comey was privately telling him that he was not under investigation, yet making statements that would lead the public to believe Trump was suspected of conspiring in Russia’s hacking operations. Trump wanted Comey to state publicly that he was not a suspect; Comey’s refusal to do so made no sense to the president, especially after Comey gratuitously implied, in his stunning March 2017 House testimony, that Trump was a suspect.

Pelley never asked McCabe about this. It might have been interesting. McCabe’s statements in the interview support the theory I have long posited here: Trump was always the main subject in the investigation. The real reason Comey did not want to repeat publicly the assurances he made to Trump privately is that these assurances were misleading. The FBI strung Trump along, telling him he was not a suspect while structuring the investigation in accordance with the reality that Trump was the main subject. This is why, as Comey conceded in Senate testimony, a member of his advisory team was very uncomfortable with the director’s decision to assure Trump he was not a suspect. (See the last section of my column, here.) Just because the president’s name was not put on the file, just because he was not named as the intended target of a surveillance warrant, did not mean that they were not investigating him. They were hoping to surveil him incidentally, and they were trying to make a case on him. I believe that a big part of the reason Comey did not inform the congressional Gang of Eight about the investigation (even though such sensitive matters are what the Gang of Eight is for) is that he would not have been able to explain the contradiction of claiming both that the FBI was investigating the Trump campaign for complicity with Russia to help Trump win and that Trump himself was not a suspect.

Obviously, what Trump wanted Rosenstein to put in his memo was not just anything about Russia but specifically that Comey had said Trump was not a suspect. We know that because Trump put on Rosenstein’s memo a cover letter pointing out that Comey had told him three times that he was not a suspect.

When Trump spoke to NBC, he explicitly said he was not shutting the Russia investigation down; he simply did not trust Comey to do it right. Trump even acknowledged that the effect of firing Comey might be to “expand” and “lengthen” the investigation but that this was worth it because he lacked confidence in Comey. One can disagree with Trump’s assessment of Comey’s capabilities. (I know from experience that Comey is highly capable.) But Trump is president, he gets to make that judgment, and making it does not mean he is obstructing an investigation, especially when he took no steps to limit it. (McCabe’s suggestion that the Russia investigation might have disappeared if he didn’t open an investigation of Trump after Comey’s firing is absurd.)

While Trump’s abomination of Comey in remarks to the Russian diplomats was disgraceful, his statement that removing Comey relieved pressure on him owing to Russia did not mean Comey’s removal ended the Russia investigation. Again, he never took any step to close or even restrict the investigation; in his mind, the pressure was off him because he was finally able to inform the American people that their president was not suspected of a traitorous conspiracy with the Kremlin — information he was livid at Comey for withholding.

The second big problem with McCabe’s story involves his stated fear that Trump could be interfering in the FBI’s probe of Russia’s interference in the election. This brings us to my oft-rehearsed focus on salient differences between counterintelligence and criminal investigations.

Let’s put aside that Trump has never lifted a finger to prevent the FBI and other intelligence agencies from examining Russia’s meddling in the campaign. It is illogical to speak of a president obstructing a counterintelligence investigation. Unlike criminal investigations, which are designed to uphold the rule of law through court prosecution, counterintelligence investigations are done strictly for the president’s benefit. They gather intelligence in order to help the president carry out his mission to protect the nation against foreign threats. In our constitutional system, that mission is assigned to the president, not to the FBI — notwithstanding McCabe’s apparent belief to the contrary. If the president suddenly decided that quite enough investigation had been done to determine the nature and extent of Russia’s election interference, and that he wanted those intelligence resources to be targeted at other threats, that would be his call to make.

You could argue that it was a foolish call, even a reckless one. I thought it was reckless for President Obama to ignore intelligence that Iran was the world’s leading state sponsor of terrorism so that he could cut a naïve nuclear deal with Tehran; but that was his call to make — the American people having elected him to be responsible for our security against foreign threats.

Significantly, it would be different if McCabe had said that the FBI had a factual basis in evidence to believe that Trump was complicit in a criminal conspiracy with the Kremlin. In that situation, if Trump tried to restrict or shut down the probe, he would be obstructing a criminal investigation into his own suspected crimes. But McCabe does not make that claim. He concedes, instead, that FBI agents were conducting a counterintelligence investigation in which they suspected that Russia favored Trump in the election but did not claim to have evidence that Trump was complicit in any violations of criminal law.

As to Trump, then, the FBI was not conducting a criminal investigation that the firing of Comey could conceivably have obstructed. The Bureau was conducting a counterintelligence investigation, which is done in support of the president’s constitutional duties. It is up to the president, not the FBI, to determine what the president’s intelligence needs are. (By McCabe’s lights, a mid-level FBI supervisor can shut down a counterintelligence investigation conducted for the purpose of informing the president, but the president himself may not interfere in any way.)

In any event, the president merely removed the FBI director, which he did not need any reason to do; which he is empowered to do at will, even for dumb reasons. Trump did not order the Russia investigation closed or restricted. And to the extent he said the Russia investigation played a role in Comey’s firing, he was clearly referring to Comey’s refusal to state publicly what he was assuring the president privately — that the president was not a suspect.