RUTHFULLY YOURS

The leak Tuesday of James Comey’s notes of a February conversation with Donald Trump is a classic of the former FBI director’s operating method that puts the Trump Presidency in peril and raises serious ethical questions about Mr. Comey’s behavior. Let’s step back from the immediate furor and examine the legal and political merits.

According to Mr. Comey’s memo to himself, Mr. Trump asked Mr. Comey in a one-on-one Oval Office meeting to “let this go,” referring to any investigation of former National Security AdviserMichael Flynn. “I hope you can see your way clear to letting this go, to letting Flynn go,” says the memo, parts of which were read to the New York Times by a Comey associate. “He is a good guy.”

The White House issued a statement denying Mr. Comey’s account of the meeting, adding that “the president has never asked Mr. Comey or anyone else to end any investigation, including any investigation involving General Flynn.” Mr. Trump’s many enemies are nonetheless calling this obstruction of justice, and perhaps grounds for impeachment.

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The first question is how this squares with Acting FBI Director Andrew McCabe’s testimony last week that there has been no attempt to interfere with the FBI’s Russia probe. The Times reports that Mr. Comey spread word among his colleagues of his Trump conversation, and Mr. McCabe is a Comey loyalist. Perhaps a Flynn criminal probe is separate from the Russia-Trump investigation, but it isn’t clear what Mr. Trump knew in February.

The more important issue is why Mr. Comey failed to inform senior Justice officials and resign immediately after the conversation. If he really thought Mr. Trump was attempting to obstruct justice, the director knows he had a legal obligation to report it immediately. He certainly had a moral duty to resign and go public with his reasons.

Yet the Times reports that Mr. Comey merely wrote the notes to himself and informed a few others. One explanation is that perhaps Mr. Comey didn’t view Mr. Trump’s comments as amounting to obstruction.

This isn’t the first time James Comey placed himself at the center of a partisan attempt to oust a top Republican. He did the same thing in 2007.

The revelation by fired former Federal Bureau of Investigation (FBI) director James Comey’s close friends that he has kept meticulous records detailing President Donald Trump’s alleged attempts to improperly influence an ongoing FBI investigation has sent Washington into a tailspin. Did Trump really threaten a sitting FBI director in a private meeting? Did the former FBI director accurately record what happened? Could this be the beginning of the end of Trump?

At the moment, untangling fact from fiction is difficult, given that the event Comey allegedly describes took place only between Comey and the president. With no ability at this time to independently verify either man’s account, we are instead left with a he-said/he-said explanation of events, which means the credibility of the two men involved becomes the prime determinant of one’s view of the situation.

The narrative from the Acela corridor media establishment is that Trump is a known liar and Comey is a honest public servant above reproach, so clearly Comey’s word must be believed, the total absence of any other corroborating evidence notwithstanding. An examination of Comey’s history as the consummate Beltway operator, however, raises questions about whether the towering former U.S. attorney, deputy attorney general, and FBI director is as open and forthright as his allies would have you believe.

In fact, the current episode is not the first time Comey and his associates plotted to oust a sitting Republican official through highly orchestrated political theater and carefully crafted narratives in which Comey is the courageous hero bravely fighting to preserve the rule of law. To understand how Comey came to be FBI director in the first place, and how he operates in the political arena, it is important to review the last scandal in which Comey had a front-row seat: the 2007 U.S. attorney firings and the fight over the 2004 reauthorization of Stellar Wind, a mass National Security Agency (NSA) surveillance program designed to mitigate terrorist threats in the wake of the 9/11 attacks.

The pivotal scene in the Comey-crafted narrative, a drama that made Comey famous and likely paved the road to his 2013 appointment by President Barack Obama to run the FBI, occurred in a Beltway hospital room in early 2004. In Comey’s view, Comey was the last honest man in Washington, the only person standing between a White House that rejected any restraints on its power, and the rule of law protecting Americans from illegal mass surveillance.

A former White House counsel and attorney general with extensive first-hand experience dealing with Comey, however, paints a very different picture of what happened in that hospital room, and disputes numerous key details. In this account, Comey’s actions showcase a duplicitous, secretive schemer whose true loyalties were not to the officials to whom he reported, but to partisan Democrats like Senate Minority Leader Chuck Schumer (D-N.Y.). To fully understand and appreciate Jim Comey’s approach to politics, the writings and testimony of Alberto Gonzales, who served as both White House counsel and attorney general during the events in question and is intimately aware of Comey’s history of political maneuvering, is absolutely essential.

Deputy Attorney General Rod Rosenstein’s appointment of Robert S. Mueller III as “special counsel” for purposes of the so-called Russia investigation underscores a point I have made through the years, whenever the subject of special prosecutors or independent counsels rears its head. Because there is no such thing as an independent counsel (i.e., a lawyer who wields prosecutorial power independent of the executive branch), the structure of a “special counsel” arrangement will never give anyone confidence. A special counsel is appointed by the attorney general (here, it’s the deputy attorney general because AG Jeff Sessions has recused himself). A special counsel also reports ultimately to the president — meaning that, like any other executive-branch official (other than the vice president), a special counsel serves at the pleasure of the president and may be dismissed at any time.

Therefore, the public perception that the special-counsel arrangement has integrity hinges exclusively on the lawyer who is appointed. It is the lawyer’s reputation for probity and professionalism, and that alone, that can convince people a real investigation, governed by law and evidence not politics, is being conducted.

In this instance, Rosenstein has chosen well.

Bob Mueller is a widely respected former prosecutor, U.S. attorney, high-ranking Justice Department official, and FBI director. He is highly regarded by both parties. This is perhaps best exhibited by the fact that when his ten-year term as the FBI director appointed by President George W. Bush expired in 2011, President Obama asked him to stay on for an additional two years, and Congress quickly agreed to extend his term. He is a straight shooter, by the book, and studiously devoid of flash.

He is also fondly remembered by Democrats as having joined then–deputy attorney general James Comey in the famous showdown, at then–attorney general John Ashcroft’s hospital bed, over President Bush’s warrantless surveillance program. It was at the insistence of Comey and Mueller that Bush made modifications to the program to bring it into the Justice Department’s revised understanding of lawfulness.

Mueller notwithstanding, there remain peculiar aspects of this special-counsel appointment. Foremost of these (as we’ve also repeatedly noted) is that the so-called Russia investigation is a counterintelligence investigation, not a criminal investigation. In the Justice Department, counterintelligence investigations are not assigned a prosecutor as criminal cases are because the point is to collect information about a foreign power (an investigative and analytical intelligence function), not to build a prosecutable case against a suspect for a violation of penal law.

Lawyers in the Justice Department’s National Security Division (NSD) oversee the government’s domestic national-security operations and assist the FBI in obtaining warrants from the Foreign Intelligence Surveillance Court — court orders that authorize the agents to collect information and monitor suspected foreign agents. Presumably, Mueller will supplant the NSD for purposes of the Russia investigation, which is described in Rosenstein’s order as an investigation of “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” That is to say, when it comes time to announce the conclusions of this counterintelligence probe, it will be Mueller making the findings.