Text of Trump team memos to special counsel assailing Comey
The following is the text of two letters written by lawyers for President Donald Trump regarding former FBI Director James Comey. One was sent to special counsel Robert Mueller, and the other was sent to Deputy Attorney General Rod Rosenstein. The Associated Press obtained copies of the letters.
Sept. 1, 2017, letter from Attorney John Dowd to Deputy Attorney General Rod Rosenstein sent via email.
Re: Request for Federal Grand Jury Investigation of Former FBI Director James B. Comey
Dear Deputy Attorney General Rosenstein:
I was recently advised that Special Counsel Robert Mueller is inexplicably not investigating the official misconduct of former FBI Director James Comey involving his unlawful conduct and testimony set forth in our complaining letter of June 27, 2017 attached hereto for your perusal and consideration. It is particularly troubling that it was Mr. Comey’s plainly deliberate, unlawful conduct and false Congressional testimony which precipitated your appointment of Special Counsel Mueller. Indeed, Mr. Comey publicly bragged about it.
I further understand that the Department of Justice has failed to open and commence a full Federal Grand Jury investigation into the obviously corrupt closing of the e-mail investigation of Secretary Clinton including the highly irregular and bizarre conduct of Mr. Comey and then Attorney General Lynch. Nor has it addressed the corruption investigation of the Clinton Foundation being conducted by the FBI’s crack Group 15 corruption team.
We now learn that then Director Comey drafted his unauthorized, improper and dishonest, conclusion to the Clinton e-mail investigation three months before the clearly superficial and inadequate investigation was even conducted. We also learn the Records Division of the FBI has reached the absurd conclusion that the public is no longer interested in the Clinton e-mail scandal and chosen to cut off public access. The arrogance and abuse of power is overwhelming.
In short, it appears the fix was in, a cover-up is in place and the reputations of the FBI and the Department of Justice are now tarnished and hang in the balance.
In 1976, I had the honor of conducting, with senior field FBI Inspectors and a Federal Grand Jury, the U.S. Recording Investigation which exposed financial corruption and misuse of official positions at the highest levels of the Federal Bureau of Investigation over a period of forty years. Attorney General Bell released that Report of that investigation to the public which became required reading within the FBI under Judge Webster.
Today, you are faced with a terrible blight on our Department of Justice which must be addressed to restore and inspire confidence in the Department. Accordingly, I respectfully urge you to direct immediately a full and fair Federal Grand Jury investigation aided by senior FBI inspectors, of all this conduct so there can be no question that the Department of Justice and the FBI at all times act with integrity in their service to the American people.
It is important that you and the AG and FBI Director Wray separate yourself from the tainted continuum of the past and reset the public’s much needed confidence in the integrity of the Department and the FBI. You are the right team with which to entrust this crucial challenge”
John M. Dowd
June 27, 2017, letter from attorney Marc Kasowitz delivered by hand to special counsel Robert Mueller.
Re: The conduct and sworn testimony of Former FBI Director James B. Comey
Dear Mr. Mueller:
This firm is personal counsel to President Donald J. Trump. This letter outlines various facts disabling Mr. James Comey’s credibility and his testimony and claims about the President.
On June 8, 2017, Mr. Comey made a staggering and illuminating disclosure: after the President exercised his constitutional authority to remove Mr. Comey as FBI Director, Mr. Comey directed various surrogates to leak to the press his privileged and confidential conversations with the President (in violation of 18 U.S.C. 641 and FBI employment agreements)1 for the express purpose of “prompt(ing) the appointment of a special counsel”2 — a special counsel Mr. Comey previously saw no need for before being terminated, and whose desired appointment by him could only be viewed as retributive. The significance of this disclosure and Mr. Comey’s related testimony cannot be underestimated. Mr. Comey claimed, in prepared and oral testimony, that he promised the President “honest loyalty,” an account the President disputes.3 But if Mr. Comey did make such a statement, it was obviously a lie.
There is no “honest loyalty” in an FBI Director surreptitiously leaking to civilians his privileged and confidential conversations with the President, or misappropriating and disseminating his confidential FBI memos or their contents about those meetings. There is no “honest loyalty” in using those civilians as surrogates to feed stolen information and memos to the press to achieve a personal, political, and retributive objective of harming a sitting president. There is no “honest loyalty” in Mr. Comey telling the President that DOJ and FBI protocols prevented him from publicly disclosing that the President was not under investigation while Mr. Comey was simultaneously violating those protocols and rules in leaking his conversations with the President to private surrogates. There is no “honest loyalty” in making a public announcement concerning the scope of the investigation that reinforced — instead of dispersed — the false belief that the President was under investigation. And there is no “honest loyalty” in appearing before Congress to level allegations against the President that Mr. Comey had never before expressed to anyone and contradicted repeatedly in words and actions for over half a year before he was removed as Director.
Beyond Mr. Comey’s untrue pledge of “honest loyalty,” his testimony and actions over the last year reveal an FBI director unbounded by law and regulation, driven by his own personal interests and emotions, willing to provide embellished and incorrect testimony, and in the words of former Clinton Deputy Attorney General Jamie Gorelick, engaged in “a kind of reality TV . . . antithetical to the interests of justice.“4 The proof is overwhelming.
For example, when Mr. Comey unilaterally announced the termination of the Clinton email investigation, he did so without securing permission from his superiors at DOJ whose authority he was purporting to usurp. When he later tried to defend his decision before Congress, he never disclosed that he took this unprecedented action based, in part, on documents indicating there was a secret deal between then-Attorney General Lynch and the Clinton campaign to not let the Clinton investigation “go too far,” or that at the time he made that announcement he had not even determined whether those documents were authentic or accurate or otherwise investigated the explosive facts they suggested.5 That his immediate response to such allegations was not to investigate them, or notify Congress and others at DOJ, but to shut down the investigation just as the documents suggested the Attorney General had promised, raises extremely troubling questions that have never been investigated, let alone answered. Mr. Comey’s willingness to abide such troubling information without meaningful investigation or alarm stands in stark contrast to his extreme extracurricular efforts to “prompt the appointment of a special counsel” against President Trump immediately after being terminated; this despite his not having seen the need for any special counsel while actually serving as FBI Director. At a minimum, this contrast depicts a person with a strong instinct for self-preservation and a malleable moral compass.
Likewise, in attempting to defend to Congress his October 28, 2016 letter reopening the Clinton investigation days before the election, Mr. Comey testified he had no choice because the FBI had just recovered “hundreds and thousands of emails, some of which contained) classified information.“6 This was a self-serving exaggeration of monumental proportions. In fact, according to the FBI, there were only a handful of emails at issue, only two of which were classified.7
Similarly, on January 6, 2017, in his first official briefing with President-elect Trump, Mr. Comey requested a separate private meeting in which he confronted the President-elect with phony but highly embarrassing allegations concerning his personal life. According to Mr. Comey, immediately upon leaving the meeting he began a practice of preparing a memo record even though there has been no suggestion that anything unusual occurred, and he had never done anything similar with President Obama. Over the course of the next several months he kept memos of his communications with the President, leaked the content of those communications to surrogates, and not only failed to correct the public misconception that the President was under investigation, but made dramatic public statements reinforcing that incorrect and harmful perception.8 These actions are difficult to understand except as part of an effort to use his position as FBI Director to affect the President’s ability to act, including his ability to replace the FBI Director while the public perceives the President is under investigation.
Finally, over the course of the last year, Mr. Comey has repeatedly offered embellished, exaggerated, inaccurate, and most of all, self-serving testimony and private accounts about, among other things: his reasons for usurping the DOJ’s prosecutorial authority over the Clinton investigation and his reopening of the investigation on the eve of the election; his “chameleon” like efforts to remain unnoticed at a White House event and “disgust” at being acknowledged along with others by the President;9 his leaks of privileged and confidential information to manipulate the administration and news coverage; the reasons for his controversial actions; and his conversations with the President.
Over the last six months, Mr. Comey has offered a repeat performance of his handling of the Clinton email investigation by acting unilaterally and with a gross disregard for the statutory and constitutional limits of his office and his responsibilities to those above in the chain of command. The impunity with which Mr. Comey obviously felt he was entitled to operate is terrifying for any senior government official, but perhaps most so for the Director of the FBI. The requests for private meetings to confront a President with embarrassing information, the secret recordkeeping concerning the President’s conversations, and the leaks to manipulate press and politics conjure up a darker day at the FBI and undermine its standing today.
We respectfully submit that Mr. Comey’s deliberate and corrupt efforts to undermine the authority of this President, set forth more fully below, were undertaken for his own benefit and should be rejected without further inquiry.
A. Comey’s Pattern of Unilateral and Unbridled Action.
Over the last year, Mr. Comey has engaged in a pattern of calculated unilateral action unbounded by governing law, regulation and practice, and plainly motivated by personal and political self-interest.
First, as set forth fully in Deputy Attorney General Rod Rosenstein’s May 9, 2017 memorandum to Attorney General Sessions, then-Director Comey “was wrong to usurp the Attorney General’s authority on July 5, 2016, and announce his conclusion that the case should be closed without prosecution”; wrong to ignore the “well-established process for other officials to step in” if, as Mr. Comey claimed, the Attorney General was conflicted; wrong to “sua sponte” ″hold a press conference to release derogatory information about the subject of a declined criminal investigation”; and wrong to write a letter to Congress on October 28, 2016, announcing that the FBI was again investigating Secretary Clinton instead of “quietly open(ing) a criminal investigation” according to “the long standing policy that we refrain from publicizing non-public information.”
In each of these actions, Mr. Comey exhibited an extraordinary and unprecedented willingness, indeed need, to act unilaterally and without regard for the limits of his jurisdiction and legal authority. There is also an obvious political and personal self-interest served by each decision.
For example, in unilaterally usurping the DOJ’s prosecutorial authority to end or pursue the Clinton investigation, Mr. Comey did not even inform, let alone ask permission from, his immediate superiors at DOJ. His public excuse for this action was that, among other things, he was in possession of documents indicating that Attorney General Lynch had entered into a corrupt agreement with the Clintons not to pursue a prosecution, and that if such information became public it would undermine the credibility of any DOJ decision not to prosecute Secretary Clinton.10 Although news reports (likely based on information from Comey) indicated the FBI feared the documents were phony, Comey did not order the most basic investigatory steps to determine this critical fact before terminating the investigation, nor did he investigate whether any such corrupt agreement existed.11 His immediate response was not to investigate the new facts, but to stop the pending investigation. Of course, this decision not only secured the objective the documents said Mr. Comey’s boss had promised the Clintons, but by Mr. Comey’s own admission, it insulated his boss from potentially dangerous scrutiny if she had made that decision.
Mr. Comey continued his Machiavellian behavior after President Trump was elected. In his first formal interaction with President-elect Trump, Mr. Comey requested a private, one-on- one meeting with the President-elect after a joint security briefing at Trump Tower. In that private meeting, Mr. Comey, conjuring images of former FBI Director J. Edgar Hoover, confronted the President-elect with an uncorroborated “dossier” containing a fake account of scandalous behavior by the President in Moscow years earlier. Although Mr. Comey’s testimony does not indicate anything unusual about the security briefing or private meeting that day, he inexplicably stated that he “felt compelled to document my first conversations with the President-Elect in a memo,” ″began to type it on a laptop in an FBI vehicle outside Trump Tower the moment I walked out of the meeting,” and ”(c)reating written records immediately after one- on-one conversations with Mr. Trump was my practice from that point forward,” even though ”(t)his had not been my practice in the past” with President Obama.12
But over the course of the following six months, the record, including Mr. Comey’s testimony and the public accounts of his surrogates, suggests that Mr. Comey’s memos and other actions were part of an effort to influence the news and the President, and particularly to sustain an investigative cloud over his head that would make it difficult for him to fire Mr. Comey. Indeed, Mr. Comey’s testimony and the news reports from his surrogates reveal that they explicitly discussed the risk that he would be removed and were planning leaks of his interview memos in that event.13 And, ultimately, this is exactly what they did when Mr. Comey was fired. But Mr. Comey began such leaks to at least his surrogates no later than March 2017.
While Mr. Comey’s leaks violated the law and the FBI’s employment terms, he was simultaneously citing DOJ rules and policies to stonewall the President’s repeated pleas for a public disclosure that he was not under investigation to clear the cloud over his administration. Making matters worse, on March 20, 2017, Mr. Comey made what The New York Times described as an “extraordinary” announcement that the FBI was investigating whether people associated with the Trump Campaign had colluded in Russian election interference. Despite his repeated assurances to the President over the prior three months that he was not under investigation, the President’s repeated pleas to make that fact public, and Mr. Comey’s testimony that he had DOJ approval to make this “extraordinary” announcement, Mr. Comey not only declined to clarify that there was no investigation of the President, but he used broad language that only reinforced the inaccurate perception that the President was under investigation. And this was precisely what occurred in the news coverage. This was plainly no mistake, but a calculated decision, which, taken in the context of Mr. Comey’s other actions, once again raises the specter of an FBI Director using his position and power to manipulate a President.
Of course, Mr. Comey’s willingness to use his position to serve his own personal and political interests was completely unveiled when he was removed as FBI Director. When he was removed, he and his surrogates immediately executed on their retaliatory plan for the express purpose of, in Mr. Comey’s own testimony, “prompt(ing) the appointment of a special counsel,” even though he had never suggested one was necessary before he was removed and was happy to proceed in his position without one. This blatant abuse of his position in the FBI, the confidences he had with the President as a result of that position, and the information he became privy to as a result of that confidence, reveals a manipulative, unprincipled, and rogue individual who believes he can act with impunity, and who is undeniably not trustworthy as a witness or otherwise. Indeed, over the past year, Mr. Comey’s repeated failures to provide truthful testimony bear out this conclusion.
B. Comey’s Pattern of Inaccurate and Incomplete Testimony.
Over the course of the last year, Mr. Comey has testified numerous times concerning the Russia investigation that is now the responsibility of the Special Counsel. During that time, Mr. Comey has exhibited a pattern of exaggerated, embellished, and materially incomplete and self- serving testimony that cripples the credibility of his accounts on matters large and small.
1. Comey’s Testimony Defending His July 5, 2016 Announcement.
On July 5, 2016, Mr. Comey convened an impromptu press conference without seeking permission from, or even notifying, the Department of Justice, in which he unilaterally declared not only that the FBI was closing its investigation into the Clinton email server, but that no prosecution would be pursued because “no reasonable prosecutor” would do so.14 On May 24, the Washington Post reported, citing “current and former officials,” that Mr. Comey relied on certain purportedly Russian documents in deciding to conduct this unprecedented election-year announcement and, in fact, that these officials believed the documents “left him little choice” because they included an email reflecting a promise from then-Attorney General Lynch to the Clinton campaign to not permit the email investigation to “go too far.“15 According to these sources familiar with Comey’s thinking, he felt he needed to usurp the Attorney General’s prosecutorial authority because if she were to make such a decision and these emails were to be released, it would undermine the public’s confidence in the judicial system.16
According to these same sources, however, at the time he made this announcement, the FBI feared that the emails were unreliable and were potentially Russian forgeries.17 Nevertheless, according to Senator Lindsey Graham, in attempting to defend his unprecedented unilateral action, Mr. Comey “never once told a member of the House or Senate that he thought the email was false” or that the FBI feared that it was false.18 There is obviously an enormous difference between the credibility of a claim based on authentic and true information and a claim based on phony or uncorroborated suspect information, and Mr. Comey’s concealment of this distinction in defending his unprecedented decision to the public and Congress is a materially misleading omission. As Senator Graham explained: “I can’t imagine a scenario where it’s OK for the FBI Director to jump in the middle of an election based on fake emails generated by the Russians and not tell Congress.“19 20 21
Even more troubling, those same prior reports indicated that before Comey made that July announcement, the FBI had failed to take the most basic steps to actually determine whether the email was authentic, and it now appears the emails may be authentic.20,21 If true, Comey’s unilateral and unprecedented announcement terminating the investigation, without even investigating the authenticity of the emails, raises serious questions as to whether Comey’s announcement may have consummated precisely the corrupt agreement reflected in those emails; why he took no steps to investigate whether such a corrupt agreement existed or to notify Congress about it; why he would have rushed to make his unprecedented announcement without knowing the facts; and why he never disclosed this issue of potentially enormous public importance in his public testimony. Certainly, this self-serving omission of information left the public with a materially misleading and incomplete account of this historic and highly controversial action, and shielded Mr. Comey from even more intense criticism and scrutiny than he was and continues to receive for his actions.
1. Comey’s Testimony Defending His October 28, 2017 Letter.
Similarly, in attempting to defend his subsequent October 28, 2017 letter announcing that he had reopened the FBI’s Clinton email server investigation, Mr. Comey testified on May 3, 2017 before the Senate Judiciary Committee that he felt compelled to notify Congress because the FBI had learned that Clinton aide Huma Abedin had forwarded “hundreds and thousands of emails, some of which contained) classified information,” to her spouse Anthony Weiner. However, the FBI later informed Congress that Mr. Comey’s testimony was false and misleading because only a “small number” of emails had been forwarded, and only two contained classified information. Once again, Mr. Comey provided materially false and misleading testimony that had the self-serving effect of making his highly-criticized actions seem more reasonable and appropriate. Left unanswered from this inaccurate testimony was the real reason for his decision and whether he was, for example, concerned that the FBI’s New York Office’s unexpected possession of these emails would have shown that Mr. Comey’s unilateral closing of the investigation almost four months earlier had been ill-advised, premature, and possibly improper.22
1. Comey’s Testimony Denying He Leaked Information.
On May 3, 2017, Mr. Comey testified that he had “never” acted as an “anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation” and never “authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation.“23 However, Mr. Comey’s June 8 testimony and the public record reveal that no later than March 2017, he was sharing with civilian surrogates detailed accounts of his meetings with the President, which were the subject of purported contemporaneous FBI memos he had prepared in his capacity as FBI Director. Moreover, according to these accounts, Mr. Comey shared these details with his surrogates with the understanding that they be released to the press were he removed as FBI Director, which is exactly what happened. While Mr. Comey’s testimony might have been technically correct, it was plainly incomplete and misleading to not have disclosed that he had, in fact, leaked this information to surrogates for the obvious purpose of leaking it in the future in the event he were removed as FBI director.
Moreover, there is evidence of leaks from Mr. Comey long before his May 3, 2017 testimony. For example, on January 10, 2017, the New York Times reported the details of Mr. Comey’s January 6, 2010 one-on-one meeting with the President in Trump Tower at which Mr. Comey reported on the so-called Steele Dossier and its embarrassing fictitious account of President Trump having engaged in scandalous behavior in Moscow years earlier.24 Since only President Trump and Mr. Comey were in that meeting, it appears he or his surrogates were some of the sources for these reports, which is contrary to his May 3, 2017 testimony. Notably, when Congressman Peter King asked Mr. Comey about the leaks concerning this private meeting during Mr. Comey’s March 20, 2017 testimony, Mr. Comey deflected the question by stating that he did not want to “confirm something that was in a newspaper.“25
1. Mr. Comey’s Claims About the January 22, 2017 Law Enforcement White House Meeting.
Finally, it is notable that the accounts Mr. Comey fed his surrogates were, like his testimony, self-serving and incredible. For example, on January 22, 2017, just days after the inauguration, Comey attended a meeting of law enforcement agencies at the White House. Through his surrogate Ben Wittes, Comey later publicly reported that he “really didn’t want to go” because he feared it would aggravate Democratic hostility toward him.26 To avoid being “singled-out”, Comey’s surrogate explained “he (stood) in the part of the room as far from Trump as it is physically possible” and wore a blue suit so he could blend into the blue drapes like a “chameleon.” Despite these elaborate measures, Comey’s surrogate reported that he was “disgusted” when the President “singled him out” for praise and a “hug” in an “intentional() attempt() to compromise him in public” in a way “calculated to maximally drive home (the) sensitivity” of Democrats.27
This dramatic tale bears no relation to the actual event, which can be watched on YouTube.28 First, the video reveals that Comey, far from hiding, was conspicuously standing directly across from the President, in his direct line of sight, and apart from others.
Second, it is clear that Mr. Comey was not “singled-out” in a “calculated” manner, but, rather, was acknowledged as almost an afterthought during spontaneous comments the President made acknowledging others he had noticed in the room. Specifically, immediately before acknowledging Mr. Comey, the President was in the process of inviting the attendees to pose for pictures when he began acknowledging, off-the-cuff, several Customs and Border Patrol officers, then praised their leader at Homeland Security, Secretary John Kelly. Then, looking directly ahead, the President spontaneously noticed and acknowledged the Director of the Secret Service, asked him to come forward, acknowledged the protection his agency was providing the President, embraced him, and invited him to remain standing with the President and Vice- President. The President then began returning to his remarks before noticing Mr. Comey standing directly across from him and, in an obvious effort not to slight the FBI Director, having just acknowledged the Secret Service Director, paused again from his remarks and said, “Oh and there is Jim. He has become more famous than me.” It does not appear from the video that the President invited Mr. Comey to come forward, but instead appears that Mr. Comey undertook to do so just as the Secret Service chief had just done. A handshake, not a hug, ensued, after which time Mr. Comey returned to his previous location. The account of this exchange, which Mr. Comey fed to his surrogates, is bizarrely grandiose and detached from what actually happened.
1. Comey’s Testimony That He Only Leaked His Conversations With the President In Response to the President’s “Tapes” Tweet.
On June 8, 2017, Comey testified that he directed that his surrogates leak the contents of his memos regarding his conversations with the President in response to a May 12, 2017 tweet concerning the potential that the President’s conversations with Mr. Comey had been recorded. Once again, Mr. Comey’s self-serving explanation, obviously intended to justify his leaks, is demonstrably false.
The public record reflects that on May 11, 2017, the day before the tweet and two days after he was removed as director, Mr. Comey’s surrogates leaked the details of his January 27, 2017 dinner with the President to The New York Times, as he and they had previously planned to do — those leaked accounts are virtually identical to Mr. Comey’s June 8, 2017 prepared testimony, which he testified he prepared with the aid of his purportedly contemporaneous memos. Thus, contrary to his testimony, it is clear that Mr. Comey’s surrogates were referencing the memos almost verbatim and were leaking the details of his meetings before the tweet, and not in response to it.
1. Comey’s Testimony That He Was “Directed” To Stop Investigation.
On June 8, 2017, Mr. Comey further testified that he felt the President had “directed” him to stop his investigation into General Flynn’s statements to the FBI about his conversation with the Russian ambassador. However, Mr. Comey admitted that he never told either the Attorney General or Deputy Attorney General at the time that he believed he had received any such direction; instead he claimed he only told his senior FBI leadership team. But, two days after Mr. Comey was removed, the most senior member of his FBI leadership team (Deputy Director McCabe) contradicted this account by testifying that “there has been no effort to impede our investigation to date.“29 This followed Mr. Comey’s testimony on May 3, 2017, just six days before his termination, that “it would be a big deal to tell the FBI to stop doing something . . . for a political reason. That would be a very big deal. It’s not happened in my experience.“30
Moreover, in March, Comey was telling his surrogates that he felt that “we’ve ... got (the President) trained” in the established communication protocols, and the next day he told an audience at a speech that “you’re stuck with me for about another six and a half years,” belying any sentiment that he was suffering under the pressure of a Presidential directive he was refusing to execute.31 Indeed, Mr. Comey’s June 8, 2017 prepared statement and testimony makes clear that after the President’s two purported conversations in which he mentioned General Flynn, he never brought up the topic again. Moreover, Mr. Comey’s June 8, 2017 testimony states that after the March 30, 2017 call in which he claims the President again stressed his desire for a public disclosure that the President was not under investigation, Comey testified he called Deputy Attorney General Boente to “report the substance of the call from the President and said I would await his guidance.“32 Mr. Comey’s prepared statement did not indicate he told the Deputy Attorney General that he felt he was under an inappropriate Presidential directive, and, in fact, his statement materially omitted the fact that he informed Deputy Attorney General Boente in that call that that he did not view the President’s communications as obstructive although it was uncomfortable and necessitated additional counseling on the appropriate process to be followed.
All of these facts belie the newly-minted account Mr. Comey articulated only after he was fired and had, by his own admission, leaked information in order to “prompt the appointment of a special counsel,” despite never suggesting a special counsel was necessary while FBI Director.
1. Comey’s Testimony That He Was Fired Because of Russia.
On June 8, 2017, Comey testified that he knew he was fired because of the Russia investigation because the President had said so. However, the President never made any such admission. Instead, in the television interview to which Comey was apparently referring, the President actually said the opposite: that he had terminated Comey because “he was not the right guy for the job” despite the fact that it might extend the Russian investigation, which the President stated he “expected” would continue.33
1. Comey’s Testimony That He Was Not Informed About the Parameters of Attorney General Session’s Recusal.
In his June 8, 2017 testimony, Comey testified that he was not aware of “any kind of memorandum issued from the Attorney General to the FBI outlining the parameters of his recusal.” However, that evening the Department of Justice issued a press release disputing Mr. Comey’s testimony: “On March 2, 2017, the Attorney General’s Chief of Staff sent the attached email specifically informing Mr. Comey ... of the recusal and its parameters.“34
In sum, there are disabling problems with the credibility of Mr. Comey and his testimony concerning his conduct over the last year and communications with the President. There is substantial evidence Mr. Comey was using his position as FBI Director to interfere with the President’s ability to exercise his unfettered constitutional authority, in particular his authority to appoint and replace the FBI Director. And there is no question that Mr. Comey improperly used the privileged and confidential information he obtained from the President as FBI Director to retaliate against the President after he was terminated. Mr. Comey is not a credible witness, and no potential investigation should be pursued based on claims he has made.
Marc E. Kasowitz
Footnotes of Kasowitz letter
1Mr. Comey’s misappropriation and dissemination of information and memos he secured and created in his capacity as FBI Director is a clear violation of FBI employment terms which, among other things, provide: “I will not reveal, by any means, any information or material from or related to FBI files or any other information acquired by virtue of my official employment to any unauthorized recipient without prior official written authorization by the FBI.” See FBI Employment Agreement, FD-291, available at https://www.fbi.gov/file-repository/fd-291.pdf/view. His actions also constitute a clear violation of 18 USC 641, which makes it a crime to steal, convert or convey “any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof.” See, e.g., United States v. DiGilio, 538 F.2d 972, 978 (3d Cir. 1976) (“asportation of records owned by the United States” constituted a violation of 641); cf. Pfeiffer v. C.I.A., 60 F.3d 861, 864 (D.C. Cir. 1995) (report drafted by CIA employee was “indisputably the property of the Government.”).
2See Open Hearing: Former Director James Comey, FBI, Hearing before the Senate Select Committee on Intelligence, 115th Cong. 125-26 (2017) (June 8, 2017 testimony of James Comey, Director, Federal Bureau of Investigation) (hereinafter the “Comey June 8 Testimony”) (“And so I asked a friend of mine to share the content of the memo with a reporter. Didn’t do it myself, for a variety of reasons. But I asked him to, because I thought that might prompt the appointment of a special counsel. And so I asked a close friend of mine to do it.”)
3See Open Hearing: Former Director James Comey, FBI, Hearing before the Senate Select Committee on Intelligence, 115th Cong. 125-26 (2017) (June 8, 2017 statement of James Comey, Director, Federal Bureau of Investigation) (hereinafter the “Comey June 8 Prepared Remarks”); see also Comey June 8 Testimony (“Cornyn: (Y)ou agreed upon honest loyalty, or something like that. Is that the characterization? Comey: Yes”).
4See Jamie Gorelick and Larry Thompson, James Comey is Damaging Our Democracy, The Washington Post (Oct. 29, 2016).
5See Matt Apuzzo, Michael S. Schmidt, Adam Goldman, and Eric Lichtblau, Comey Tried to Shield the F.B.l. From Politics. Then He Shaped an Election, The New York Times (Apr. 22, 2017) (“Early last year, F.B.l. agents received a batch of hacked documents, and one caught their attention. The document, which has been described as both a memo and an email, was written by a Democratic operative who expressed confidence that Ms. Lynch would keep the Clinton investigation from going too far, according to several former officials familiar with the document.”); Karoun Demirjian and Devlin Barrett, How a dubious Russian document influenced the FBI’s handling of the Clinton probe, The Washington Post (May 24, 2017) (“A secret document that officials say played a key role in then-FBI Director James B. Comey’s handling of the Hillary Clinton email investigation has long been viewed within the FBI as unreliable and possibly a fake, according to people familiar with its contents.”); see also Oversight of the Federal Bureau of Investigation, Hearing before the Senate Judiciary Committee, 115th Cong. 125-26 (2017) (May 3, 2017 statement of James Comey, Director, Federal Bureau of Investigation) (hereinafter the “Comey May 3 Testimony”) (“The normal way to do it would be have the Department of Justice announce it, and I struggled, as we got closer to the end of it, with_a number things had gone on, some of which I cannot talk about yet, that made me worry that the Department leadership could not credibly complete the investigation and decline prosecution without grievous damage to the American people’s confidence in the justice system.”); June 22, 2017 Senate Judiciary Committee letter to Amanda Renteria (although the (Washington Post) article claimed that the FBI “concluded” by August 2016 that the document was unreliable, the article noted “Wasserman Schultz, Benardo and Renteria said they have never been interviewed by the FBI about the matter” and that “the FBI did not interview anyone mentioned in the Russian document about its claims”).
6See Comey May 3 Testimony.
7Michael S. Schmidt, F.B.l. Clarifies Comey’s Testimony on Clinton Emails, The New York Times (May 9, 2017).
8See Comey June 8 Testimony; Comey June 8 Prepared Remarks.
9Dan Gunderman, Friend of James Comey says former FBI director was ‘disgusted’ after President Trump’s White House hug, New York Daily News (May 19, 2017).
10See supra fn. 5.
12Comey June 8 Prepared Remarks.
13See Michael Schmidt, In a Private Dinner, Trump Demanded Loyalty. Comey Demurred, The New York Times (May 11,2017) (“Mr. Comey described details of his refusal to pledge his loyalty to Mr. Trump to several people close to him on the condition that they not discuss it publicly while he was F.B.I. director. But now that Mr. Comey has been fired, they felt free to discuss it on the condition of anonymity.”).
14See July 5, 2016 Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System.
15Karoun Demirjian and Devlin Barrett, How a dubious Russian document influenced the FBI’s handling of the Clinton probe, The Washington Post (May 24, 2017).
18Eli Watkins, Graham: It’s ‘stunning’ Comey never told Congress about fake email, CNN (May 28, 2017), available at https://www.cnn.com/2017/05/28/politics/lindsey-graham-james-comey/index.html
20See supra fn. 5.
21The potential for collusion between the Attorney General and the Clinton Campaign with respect to the email server investigation is particularly concerning since the Justice Department did not make normal investigative tools like grand juries available to the FBI in that investigation. This lack of support plainly impaired the FBI’s ability to robustly pursue the investigation as evidenced by, among other things, its inability to secure unfettered access to computer records and compel witness testimony.
22It has also been reported that Comey and the FBI had received but did not review a complete set of the Clinton emails, including the thirty-thousand that they had otherwise not been able to recover from the primary sources. See Adam Goldman and Matt Apuzzo, How the F.B.I. Reviewed Thousands of Emails in One Week, The New York Times (Nov. 7, 2016).
23Comey May 3 Testimony.
24Scott Shane, Adam Goldman and Matthew Rosenberg, Trump Received Unsubstantiated Report That Russia Had Damaging Information About Him, The New York Times (January 10, 2017).
25See Open Hearing on Russian Active Measures Investigation, Hearing before the House Permanent Select Committee on Intelligence, 115th Cong. 125-26 (2017) (March 20, 2017 testimony of James Comey, Director, Federal Bureau of Investigation) (hereinafter the “Comey March 20 Testimony”).
26James Comey felt it was his job to protect the FBI from Trump, says friend, PBS (May 19, 2017), available at http://www.pbs.org/newshour/bb/james-comey-felt-job-protect-fbi-trump-says-friend/.
29See Worldwide Threats Hearing, Hearing before the Senate Select Committee on Intelligence, 115th Cong. 125- 26 (2017) (May 11,2017 testimony of Andrew McCabe, Acting Director, Federal Bureau of Investigation)
30Comey May 3 Testimony.
31See Daily Mail video, available at http://www.dailymail.co.uk/embed/video/1426117.html
32Comey June 8 Prepared Remarks.