CHAPTER 5 THE EASY LIE
—THOMAS JEFFERSON
WHEN MARTHA STEWART was released from prison in March 2005, the press was making much of the fact that her net worth grew during her time in custody. As if the goal of prosecutors had been to destroy her, rather than punish her for lying during an investigation and send a message that people, no matter who they are, can’t obstruct justice.
I was in Las Vegas giving a speech and knew the media would try to get an ambush reaction from me on camera, because I was the United States Attorney who had indicted her and received an enormous amount of media attention and criticism as a result. As expected, a cameraperson and a local reporter with a microphone approached. The reporter stuck the microphone in my face and said, breathlessly, “Mr. Comey, Martha Stewart is getting out of prison today worth two hundred million dollars more than when she went in. How does that make you feel?” (For some reason, he pronounced “feel” to sound like “feeeeel.”)
I paused, looked into the camera, and delivered a line I had practiced in my head a dozen times, willing myself not to smile. “Well,” I said, slowly, “we at the Department of Justice are all about the successful reentry of our inmates into society. Ms. Stewart may have done better than most of our convicts, but that’s certainly no cause for concern.” Stone-faced, I nodded and walked off. The reporter had no idea I was fooling around, but the cameraperson—they tend to be the more down-to-earth members of a media team—laughed so hard that the camera bumped up and down. The shot was too shaky to use.
Martha Stewart didn’t commit the crime of the century. At first, I found it an annoyance compared to those we were dealing with on a daily basis, cases that had a bigger impact on people’s lives. But something caused me to change my mind. This case was ultimately about something higher, something more important than a rich person trying to sell some stock before it crashed. And in a number of ways I couldn’t imagine then, it had a significant impact on me for the rest of my career in law enforcement—offering lessons I’d make use of long after.
* * *
Everyone lies at some point in their life. The important questions are where, about what, and how often?
One of the inevitable questions someone at my height is asked, especially by strangers in elevators, is whether I played basketball in college. The answer is that I didn’t. But it was a long story as to why, involving growing late, knee surgery, and various time demands. I figured nobody wanted to hear all that and, even if they did, it took too long for an elevator ride. So for a few years after college I took the easy way out and just nodded or said “yup” to any stranger who asked me that question. I did the same thing with friends I played basketball with once I entered law school. I don’t know why I did that. Maybe I was insecure. Maybe it was just easier. Or maybe I liked people to think I was a college jock. This was a seemingly small and inconsequential lie told by a stupid kid, but it was a lie nonetheless. And it ate at me. So after law school I wrote to the friends I’d lied to and told them the truth. They all seemed to understand. One of them replied—as only a true friend could—“We knew you didn’t play in college and we didn’t care. You are a great friend and a great player. Of course, you suck for other reasons.”
I guess what concerned me most about the small lie was the danger of it becoming a habit. I’ve seen many times over the years how liars get so good at lying, they lose the ability to distinguish between what’s true and what’s not. They surround themselves with other liars. The circle becomes closer and smaller, with those unwilling to surrender their moral compasses pushed out and those willing to tolerate deceit brought closer to the center of power. Perks and access are given to those willing to lie and tolerate lies. This creates a culture, which becomes an entire way of life. The easy, casual lies—those are a very dangerous thing. They open up the path to the bigger lies, in more important places, where the consequences aren’t so harmless.
* * *
Every year a small number of people are prosecuted for insider trading. A few people wearing nice suits and handcuffs get paraded in front of cameras and walk into courthouses, but their cases generally go without much notice outside the financial press. But in January 2002, that was about to change, when a case about one little-known biotech company with one well-known shareholder came across my desk as the United States Attorney in Manhattan.
In late 2001, Sam Waksal, owner of a company called ImClone, sold his many shares of the company in a panic after learning that regulators were going to deny a license for ImClone’s new wonder drug. The problem for Mr. Waksal was that the general public didn’t know anything about the denial of the license. Under the law, a CEO can’t just sell his stock when he learns something big that ordinary stockholders don’t know. That’s insider trading. Waksal’s behavior was like lighting himself on fire in front of law enforcement authorities. That he was guilty and should be charged was obvious; the remaining question for investigators was whether anyone else who sold ImClone shares after Christmas 2001 did so based on material, nonpublic information.
Because the transactions happened in Manhattan, which was my jurisdiction, I assembled an all-star team of Assistant U.S. Attorneys to help run the investigation. My deputy was David Kelley, a career prosecutor and close friend. The chief of the Criminal Division, supervising all criminal prosecutors in the office, was another longtime friend and former prosecutor, Karen Seymour. I had convinced her to leave her partnership at a Wall Street law firm to help me lead the office. Together, the three of us chewed over all hard decisions, like the old friends we were—laughing, teasing, arguing. I valued them because they would always tell me the truth, including when I was full of it.
The danger in every organization, especially one built around hierarchy, is that you create an environment that cuts off dissenting views and discourages honest feedback. That can quickly lead to a culture of delusion and deception. And in a leader, the tendency of too much confidence to swamp humility can lead to a dangerous self-indulgence at the expense of others. That was a major factor in the downfall of the Mafia in New York. And, ironically, it was a significant weakness at the U.S. Attorney’s office that broke the Mafia under Giuliani. I worked very hard to keep this in mind now that I had Rudy Giuliani’s old job.
It was now my responsibility to build my own culture within the U.S. Attorney’s office, one that would get the best out of our team and drawing, in different ways, on the lessons of Giuliani and Fahey. I tried to attend to this task from the very first day. I hired about fifty new prosecutors during my time as U.S. Attorney and sat with each of them as they took the oath of office. I invited them to bring their families. I told them that something remarkable was going to happen when they stood up and said they represented the United States of America—total strangers were going to believe what they said next. I explained to them that, although I didn’t want to burst their bubbles, this would not happen because of them. It would happen because of those who had gone before them and, through hundreds of promises made and kept, and hundreds of truths told and errors instantly corrected, built something for them. I called it a reservoir. I told them it was a reservoir of trust and credibility built for you and filled for you by people you never knew, by those who are long gone. A reservoir that makes possible so much of the good that is done by the institution you serve. A remarkable gift. I would explain to these bright young lawyers that, like all great gifts, this one comes with a responsibility, a solemn obligation to guard and protect that reservoir and pass it on to those who follow as full as you received it, or maybe even fuller. I would explain that the problem with reservoirs is that they take a very long time to fill but they can be drained by one hole in the dam. The actions of one person can destroy what it took hundreds of people years to build.
* * *
On the Waksal case, government investigators, including agents and analysts at the FBI, ran through the basics: they got a list of everyone who had sold ImClone stock at the same time as Waksal. One of those names was Martha Stewart. She had dumped her shares the same day Waksal did and before the public learned about the FDA denial on the new drug, avoiding a loss of about fifty thousand dollars. The loss was a rounding error for a wealthy person worth hundreds of millions of dollars like Stewart, but investigators would have been negligent if they didn’t at least interview her and ask her why she sold when she did.
Stewart was a friend of Waksal’s, and investigators expected her to tell them that when she learned Sam was selling stock, she had sold hers, too. Surely she would tell them that she didn’t know there was anything wrong with that sale, and that she was very sorry if there was. There would have been a stern warning, maybe a modest financial penalty, and everyone would go on with their lives.
Except that wasn’t what Martha Stewart did.
Instead, she told the investigators that she had a standing agreement with her broker that he should sell her ImClone shares immediately if its stock price dropped below a certain price, or “floor.” Stewart said she had known nothing in advance about Waksal selling his stock. Maybe his sale had caused the price to drop, triggering her sell order, but this was all a big coincidence. Nothing to see here.
Federal investigators usually aren’t big believers in coincidences. Stewart’s answer prompted them to look further. Among many oddities, they discovered that Stewart and Waksal had the same broker. They also learned the broker had called Stewart the morning of Waksal’s sale. Stewart was unavailable at the time, flying by private jet to a Mexican resort, so the broker left a message with Stewart’s secretary saying that he needed to speak to her about Sam Waksal, urgently.
After the investigation began, the feds obtained handwritten notes from the broker. Those notes did reflect that there was a previously agreed-upon floor for selling the ImClone stock, just as Stewart had said. But the notes were written in two distinct inks. Everything was written in one brand of ink, except for the part that bolstered Stewart’s claims.
Investigators then learned other troubling details. They interviewed Stewart’s secretary and learned that, after the federal investigation into the ImClone sale began, Stewart asked her secretary to open the telephone message from her broker on her computer. Then Stewart asked her secretary to stand up, after which Stewart took her seat at the computer. She highlighted the part that said her broker was calling about Sam Waksal, then typed over it to remove the reference to Waksal. Stewart then paused. Apparently thinking better of obstructing justice in such a clumsy way and in full view of a potential witness to a major crime, Stewart stood abruptly and instructed her secretary to restore the words she had just deleted.
I disliked the Martha Stewart case from the beginning. It was a distraction, a shiny object, when we had so much more important work to do. The tech bubble of the late 1990s had burst, and dramatic swings in the market had exposed an extraordinary amount of corporate fraud. To paraphrase the memorable words of Warren Buffett, when the market crashed, the tide had gone out quickly and exposed a lot of naked bathers. There on the beach were the fraudsters of Enron, WorldCom, Adelphia, and so many more—those who had bankrupted companies, destroyed countless jobs, and defrauded billions from investors. We were working like mad at the U.S. Attorney’s office in New York to make these big cases. And they were very hard to make, because they all turned on the content of people’s minds. In a drug-dealing prosecution, of which I had done many, the mission for the government was simply to connect the defendants to the transaction. If federal agents burst into a hotel room and find a kilo of heroin piled in the middle of a table, everybody sitting at that table is going to jail. It isn’t open to any of them to say it had never occurred to them that this activity was illegal, or that their accountants and lawyers had reviewed the heroin and concluded it was lawful and appropriate under governing rules and regulations. Nope. Everybody is going to jail.
In a corporate fraud case, the challenge was reversed. At the end of the day, the government would understand the transactions completely. We would know who was sitting at the table and exactly what the deal was. But everybody at the table would say they had absolutely no idea this complicated, mortgage-backed, reverse-repo, foreign-exchange-swap transaction was illegal. They would invariably say they were deeply, deeply sorry people had lost their life savings, but committing a crime was the furthest thing from their minds.
It fell to investigators and prosecutors to prove the content of a person’s mind beyond a reasonable doubt to a jury of twelve, who must unanimously agree that the government met its burden. Really hard. Not impossible, thanks to the twentieth century’s great gift to law enforcement—electronic communications—but still hard. Sometimes email offered “kilo on the table” kind of evidence. In one case I dealt with, a financial executive emailed another, saying, “I just hope the SEC doesn’t find out what we are doing here.” His fellow executive replied, “Forget the SEC, when the FBI comes, I’m going out the window.” Good stuff.
But more often, the government was stymied in its effort to prove criminal intent, even in the face of huge financial losses. People shouting that the CEO “must have known” or “should have known” was not good enough. Where is the proof beyond a reasonable doubt that he knew he was committing a crime? Senior executives are shocked, shocked that lower-level employees may have been breaking the law.
In the middle of all these massive cases that we were working so hard to make, why did I want to have anything to do with Martha Stewart? It was a marginal case about a lie by a rich person who sold some stock because her friend did. We had some evidence that might add up to insider trading, if we took an aggressive view of the law, and we had a willful obstruction of justice, but it was far from an open-and-shut case, particularly if it involved a jury and a sympathetic character in America’s most beloved TV hostess. Everyone had learned something from her. I once had personally pushed basil leaves under the skin of a Thanksgiving turkey, at Martha Stewart’s suggestion. Why go to the trouble? Who cared?
But the case was no longer marginal when one afternoon the lead investigating Assistant U.S. Attorney barged into my big office with its view of the Manhattan end of the Brooklyn Bridge and NYPD headquarters. All day long, I could watch people flow to and from Brooklyn and to and from the police. With a broad smile and both arms extended above his head as if signaling a touchdown, he told me he’d gotten the goods.
The final piece to the case had come, unexpectedly, from Martha Stewart’s best friend, Mariana Pasternak. Just days after the allegedly coincidental stock sale, the two were sitting on a hotel balcony in Cabo San Lucas, Mexico, enjoying a New Year’s vacation drink. As they chatted, gazing out at the jewel-like Pacific, Pasternak told investigators, Stewart said she was worried about Sam Waksal. Stewart explained that she had sold all her stock in ImClone because she learned through her broker that Waksal had. She added, “Isn’t it nice to have brokers who tell you such things?”
In other words, Martha Stewart had told us a whopper, and now we could prove it well beyond any reasonable doubt. Ugh. The lie she had told was so unnecessary. She could have offered to repay the fifty thousand dollars she had saved, chump change to her, expressed remorse, and vowed never to trade on insider information again. Instead she engaged in an elaborate deception and then involved others to try to cover her tracks.
In addition to a celebrity fan base who cheered her on, Stewart had aggressive lawyers. One of their main arguments was that it was laughable to think that a person worth hundreds of millions of dollars would get personally involved—while jetting to Mexico—to sell stock simply to avoid a fifty-thousand-dollar loss. Her time was too valuable for such trifles, they said. Faced with this argument, I asked her lawyers a question: If Ms. Stewart were at her country estate and walked to the end of her winding driveway one Sunday morning to retrieve her New York Times—steaming cup of coffee in hand—and saw a five-dollar bill lying on the ground next to her paper, would she pick it up or would she not bother with such a trifle? They didn’t answer. Of course she would pick it up. Of course she would make a single phone call to her broker to save herself fifty thousand dollars. Most of us would, especially if we weren’t familiar with laws on insider trading.
I asked Karen Seymour, the Criminal Division chief, to see if she could arrange a plea deal. Karen didn’t love that idea because she now had a strong case and worried we would signal weakness by looking for a deal, but she gave it a shot. Stewart’s lawyers at first said she would go for a guilty plea, then said she would not. My guess is they were either testing our resolve or had failed to persuade their client into pleading in a case she couldn’t win. If we wanted Stewart to pay for her crime, we were going to have to indict her and try this case against a well-known and widely admired public figure. Though the case seemed like a no-brainer, I still hesitated. I knew defenders of Stewart in the media would say just what her lawyers intimated to me when they fought against the charges—that I was bringing this case to get famous. That I was celebrity hunting—tipping the scales of justice to make an example out of someone who had been in the public eye. That I was just another Rudy Giuliani, out to make a name on the backs of others. I spent long hours staring out at the Brooklyn Bridge, hesitating to bring on the criticism and the circus I knew would come. Then, while I worried about myself and my image, I remembered a young black minister.
He was an associate pastor and youth minister at the historic Fourth Baptist Church in Richmond, Virginia, when I was the supervising federal prosecutor in that city in the late 1990s. The senior pastor at his church was the charismatic mayor of Richmond, Leonidas B. Young. Unfortunately, Mayor Young was a bit too charismatic for his own good. Although married with children, he was simultaneously carrying on an ambitious number of affairs with other women. To maintain those relationships in the face of some sexual performance issues, Young had undergone an expensive mechanical penile implant, which then catastrophically failed, leading to additional procedures and costs. With his medical bills and purchases of gifts, trips, and hotels for multiple paramours, Young was struggling financially. Sadly, he decided to use his city government position to raise cash, and turned to his associate pastor to help him do it.
At the time, Richmond was considering privatizing city cemeteries. Executives of one company interested in bidding on the cemeteries met with Young. The mayor told them their chances of winning the bid would be materially enhanced if they hired certain people, such as his junior minister at Fourth Baptist, as “consultants.” The company then wrote checks for thousands of dollars to that junior minister, among others. Bank records showed the minister cashed the checks and then funneled the money to the mayor.
My fellow prosecutor Bob Trono and I met with the young minister. There was something about him that made me want to help him. I looked him directly in the eye and said I believed he was a good person, that he had done something as a favor to his mentor and senior pastor at his church, Mayor Leonidas Young. From what we could tell, the young minister hadn’t kept any of the money he had helped Mayor Young embezzle. Admit this, I told him, and you will be okay. Lie, and I will have to prosecute you for it. Mayor Young will turn on you, someday, I told him. He began to sweat, but he insisted the cemetery company had hired him for his expertise and that he had not given any money to Young.
I felt deep sadness as the meeting ended, because I could see the future and what it held for a young pastor from Richmond who had a promising career ahead of him. Leonidas Young was indicted, pled guilty to racketeering, and was sentenced to federal prison. As part of an effort to reduce the length of that sentence, he named the associate pastor as one of his money launderers. The young minister was indicted and convicted of lying during the investigation. At the trial, prosecuted by Bob Trono, Leonidas Young testified against him. The young pastor was sentenced to fifteen months in federal prison for lying. I have left his name out of my book because I hope he has made a good and happy life after prison.
As I stared out of my Manhattan office window and remembered that young minister, I was suddenly ashamed of myself. He was not famous. I was probably the only person outside Richmond who even knew his name. And here I was, the United States Attorney in Manhattan, hesitating to prosecute Martha Stewart because it would bring criticism. I was actually considering letting her go because she was rich and famous. What a miscarriage of justice. What a coward I was.
I asked Dave Kelley to find out how many people had been indicted in the United States the previous year for lying to federal investigators. How many “regular people” lied and then paid dearly for it? The answer was two thousand. Kelley told me I needed to stop wringing my hands; this was the right thing to do and I should get on with it. He was right. I told my staff to indict Martha Stewart and decided Karen Seymour should lead the case at trial.
Charging Martha Stewart was my first experience with getting a lot of hate and heat for a decision that had been carefully and thoughtfully made. People just could not, for the life of them, understand how I could make a mountain out of a molehill in an effort to ruin Martha Stewart. I was obviously out of control, making decisions that no reasonable person could support. The onslaught was bracing, but I was comfortable we had made the right decision, and in the right way. It would also prove to be good practice for a future I couldn’t have imagined back then. Stewart was convicted and sentenced to five months at the federal prison in Alderson, West Virginia.
The Stewart experience reminded me that the justice system is an honor system. We really can’t always tell when people are lying or hiding documents, so when we are able to prove it, we simply must do so as a message to everyone. People must fear the consequences of lying in the justice system or the system can’t work.
There was once a time when most people worried about going to hell if they violated an oath taken in the name of God. That divine deterrence has slipped away from our modern cultures. In its place, people must fear going to jail. They must fear their lives being turned upside down. They must fear their pictures splashed on newspapers and websites. People must fear having their name forever associated with a criminal act if we are to have a nation with the rule of law. Martha Stewart lied, blatantly, in the justice system. To protect the institution of justice, and reinforce a culture of truth-telling, she had to be prosecuted. I am very confident that, should the circumstance arise, Martha Stewart would not lie to federal investigators again. Unfortunately, many others who crossed my path would continue to commit the same foolish act.
* * *
As United States Attorney in Manhattan, I reported to the deputy attorney general at the Department of Justice in Washington. The deputy attorney general—often called the DAG—was the number-two official, the chief operating officer of the department. Everyone in the organization, with the exception of the attorney general’s small personal staff, reported to the DAG, who reported to the attorney general. It was a crazy organizational chart, one you could only find in the government. But I figured it likely made for an interesting job.
In the summer of 2003, Larry Thompson, who was then serving in the post, came to see me in Manhattan. He was burned out and told me he would be leaving in the fall. He intended to recommend to the George W. Bush White House that I replace him as deputy attorney general. Was I interested?
The answer was yes. I loved being United States Attorney, but New York, as before, was not a great situation for me or my family. For cost-of-living reasons, we lived fifty miles north of my office. The rough commute made it very hard for me to see Patrice and the kids as much as I would have liked. It meant plenty of missed recitals, games, and parent-teacher conferences. I once left my office at 4 P.M. for a 6 P.M. Little League game, and because of the hellish commute missed nearly the entire game. That kind of thing made me ache. It was not who I wanted to be. If we could move the kids to Washington, I knew I would have a job that would keep me plenty busy, but I also knew I could avoid three or four hours commuting every day. Of course, there was danger in moving closer to the political heart of the country. One New York journalist captured the views of many of my colleagues when he wrote a piece d “Mr. Comey Goes to Washington,” saying there was no doubt I would retain my sense of humor when I moved to Washington; the harder question was whether I would lose my soul. I confess I shared the concern, but the move would be best for my family. And how bad could it be?
So I traveled to Washington to meet with President George W. Bush’s White House counsel, Alberto Gonzales. We met in his office on the second floor of the West Wing. This wasn’t my first visit to the White House counsel’s suite of offices. In 1995, I had worked briefly for the Senate committee investigating Bill and Hillary Clinton’s investments in an Arkansas development called Whitewater and a variety of related issues. One of those issues involved the suicide of President Clinton’s deputy White House counsel Vince Foster and the subsequent handling of documents left in his office. During my five months on the committee legal staff, I was assigned to visit the second floor of the West Wing to examine the suite of offices in which Foster had worked. One of the questions the committee had was whether First Lady Hillary Clinton or anyone acting on her behalf went to Foster’s office after his death and removed documents. I left the investigation long before any conclusions were reached, but I can recall pacing off the distance between Hillary Clinton’s office on the second floor and the White House counsel’s suite.
I had also been to the West Wing in the spring of 2001. As an Assistant United States Attorney in Richmond, I was handling a terrorism case and expected the indictment in the case to accuse Iran of funding and directing the devastating 1996 attack on a United States Air Force barracks in Saudi Arabia that killed nineteen Americans and wounded hundreds. Such an accusation would have foreign policy implications, and the new Bush administration gathered its senior national security team to hear Attorney General John Ashcroft’s explanation as to why the accusation against Iran was well founded. Ashcroft’s staff decided I would accompany him to the White House but sit outside the Situation Room meeting, just in case he needed me as a resource for details. I was relaxed and enjoying my first visit to the Situation Room, because I had no speaking role and wasn’t even in the meeting. I could just look around and soak it in. The soaking didn’t last long. Soon I was underwater.
Minutes after the door to the secure meeting room closed, it opened again and there stood the secretary of state, Colin Powell.
“Who’s the prosecutor? You the prosecutor?” he barked, fixing his gaze on me.
“Yes, sir,” I stammered.
“Get in here,” he ordered. Apparently, the start of the meeting had not gone well.
General Powell ushered me into the small conference room and directed me to a seat at the table, directly across from him and the secretary of defense, Donald Rumsfeld. The national security adviser, Condoleezza Rice, sat at the head of the table. I sat between the slightly flushed-looking attorney general and FBI Director Louis Freeh. For the next twenty minutes, the two strong-willed cabinet secretaries grilled me about my case and my evidence as I sweated through my suit. When they ran out of questions, they asked me to leave. I walked out, numb, while the meeting continued. Several weeks later, I got the approval to include the accusation that Iran was behind the Khobar Towers attack.
Now here I was, back again. The main floor of the West Wing is home to grand, high-ceilinged offices, including, of course, the Oval Office. It always seemed to me that the architects got the space for those high ceilings by taking it from the levels above and below, especially the basement. Down there, where I would spend so much of my later career in national security meetings, the doorframes were about six feet, seven inches high. To navigate, I would discreetly bob my head down as if nodding to an unseen companion as I walked. I had no idea how finely calibrated my ducking was until I got new soles and heels on a pair of dress shoes during the George W. Bush administration. Apparently, this refurbished footwear made me about a half-inch taller than usual. Rushing so as not to be late to a Situation Room meeting with the president, I did the usual bob and smacked my head so hard that I rocked backward, stunned. A Secret Service agent asked me if I was okay. I said yes, and continued walking, stars in my eyes. As I sat at the table with the president and his national security team, I began to feel liquid on my scalp and realized I was bleeding. So I did the obvious thing: I kept tilting my head in different directions to keep the running blood inside my hairline. Heaven only knows what President Bush thought was wrong with me, but he never saw my blood.
The top floor, where Gonzales had his office, was only slightly less claustrophobic, with small windows jammed against the low ceiling. I was relieved when we sat. Gonzales, the White House counsel who had worked for Bush when he was governor of Texas, was a warm, friendly, and almost painfully soft-spoken person. Most conversations with him involved awkward pauses. I don’t remember him asking me much at my “interview” to be deputy attorney general. He said the White House was looking for someone “strong enough to stand up to John Ashcroft.” He wanted to know whether I thought I could do that.
That struck me as an odd question to ask about the president’s handpicked attorney general. But, as I was quickly learning, Washington was a city where everyone seemed to question other people’s loyalties and motivations, most often when they weren’t in the room. Ashcroft was a conservative who had considered running for president in 2000, the year that saw George W. Bush elected. Although I couldn’t see it from my job in Manhattan, there was tension between the White House and Ashcroft over the perception that the attorney general was preparing his own political future and that his interests didn’t align entirely with President Bush’s. I didn’t know whether any of that was true, but assured the White House counsel that I would not be cowed by anyone and that I would always try to do the right thing. That answer seemed to satisfy him, at least then. Gonzales and the political higher-ups in the Bush White House approved me for the position; I met briefly with Ashcroft, who already knew me well; and in December 2003, I moved into an office at Department of Justice headquarters and began moving the family to the Washington suburbs.
The job of deputy attorney general came with a staff of about twenty lawyers to help with the heavy workload and the various demands of a hundred others who reported directly to me. Although I had been in federal law enforcement for fifteen years, the DAG position was my first chance to work on a near-daily basis with cabinet members. My immediate boss, of course, was John Ashcroft, who, despite Gonzales’s implication, I found to be warm, decent, and committed to his job over his own ambitions. We were cordial with each other but never close, something I attributed to the eighteen-year gap in our ages and our very different styles. Although he laughed easily and enjoyed team sports—I had once played a rough game of basketball against him and failed, despite great effort, to knock him down—Ashcroft was formal in many respects. A deeply religious man, he didn’t dance or drink or curse, and he disdained some of the more colorful turns of phrase I liked to use.
One day he held me back after a meeting in his office to gently chastise me for the language I used in a meeting that had just ended. He explained that he viewed the office in which he sat as something he held in trust for the American people. I said I very much agreed. He went on, “Given that, I would ask that you be attentive to your language.”
I gave him a blank look, because I couldn’t recall using any epithets in the meeting that had just ended. I didn’t curse much, but I did on occasion, for emphasis and effect.
“What did I say?” I asked, mystified.
He looked visibly uncomfortable at the prospect of repeating what I had said. It must have been an F-bomb, I reasoned. How could I not remember that?
“It rhymes with ‘word,’” Ashcroft finally said.
I racked my brain for four-letter words that fit his description. Then I remembered. At some point during our discussion about a case, I used the word “turd,” as in the phrase “turd in the punch bowl.” Trying not to smile, I apologized and said I would be more careful in the future.
My position also occasionally afforded me the privilege of visiting the Oval Office. My first visit was in late 2003 when I substituted for Attorney General Ashcroft at President Bush’s daily terrorism threat briefing. For years after 9/11, every morning President Bush was in town, he met with the leaders of the counterterrorism agencies—which included the FBI and the Department of Justice. I was nervous about these meetings for a couple of reasons. Obviously, I didn’t want to embarrass myself or my department by saying anything stupid. But I was also going to a meeting with the president of the United States in an office that is hallowed ground in the life of my country. And in 2003, two years after the 9/11 attacks, there was no higher-priority agenda item than what we were discussing.
This was my first meeting with the leader of the free world. As I sat there, I couldn’t get over how brightly lit the place was. There was a ring of lights in the recessed ceiling that lit the place like the noonday sun. I didn’t have to speak in this meeting unless called upon, so I let my eyes sweep over the faces that were familiar from TV—the president, Vice President Dick Cheney, FBI Director Bob Mueller, National Security Adviser Condoleezza Rice, and Secretary of Homeland Security Tom Ridge.
In that moment, something hit me: It’s just us. I always thought that in this place there would be somebody better, but it’s just this group of people—including me—trying to figure stuff out. I didn’t mean that as an insult to any of the participants, who were talented people. But we were just people, ordinary people in extraordinary roles in challenging times. I’m not sure what I had expected, but I met the top of the pyramid and it was just us, which was both comforting and a bit frightening. Suddenly Bob Dylan was in my head, singing, “What looks large from a distance, close up ain’t never that big.”
* * *
One of the first cases that I stepped into in my new role at the Justice Department was another case about lying in the justice system. In June 2003, a couple of months after the invasion of Iraq, an article by reporter Robert Novak had revealed the name of a covert CIA employee. The revelation had come days after the CIA employee’s husband had written a newspaper opinion piece attacking one of the Bush administration’s main rationales for the war in Iraq, namely that Saddam Hussein was trying to acquire nuclear material. Speculation was rampant that members of the Bush administration had illegally disclosed the name of this CIA employee to Novak in retaliation for the negative article.
Novak attributed his reporting to two Bush administration sources. As the scandal widened, it soon became apparent that at least three, and as many as six, Bush officials had spoken to reporters about the covert CIA employee. Richard Armitage, the deputy secretary of state, was one official who freely admitted mentioning the CIA employee’s name to Novak. In fact, he had called the Justice Department shortly after the investigation began. He explained that he hadn’t intended to reveal classified information; he had just been gossiping with Novak and didn’t realize what he had done. The identity of Novak’s second source was President Bush’s chief political advisor, Karl Rove. Rove had had a conversation with Novak, in which Novak mentioned that the author of the critical opinion piece on Iraq was married to a CIA employee. Rove said something like, “Oh, you heard that, too.” Although it doesn’t seem like great journalistic craft, Novak took this as a confirmation of what he had learned from Armitage.
But there was also evidence that a third official, the vice president’s chief of staff, Lewis “Scooter” Libby, spoke to numerous reporters about the CIA employee. By the time I became deputy attorney general, Libby had been interviewed by the FBI and admitted doing so, but said he only knew about the CIA employee from a reporter. Like Armitage, Libby maintained he was just passing gossip, not proactively disseminating the name of a covert agent. Unfortunately for Libby, the reporter Libby named, NBC News Washington bureau chief Tim Russert, had been interviewed by the FBI and said that Libby was lying. Russert hadn’t passed along the covert agent’s name to Libby. Three years later, a jury would conclude the same thing: Libby lied to the FBI.
This was one of my early experiences in Washington of people deciding motivations based on their partisan allegiance. To Democrats, it was obvious that key members of a Republican administration were subverting justice to undermine and punish their critics. To Republicans, it was just as obvious that this was a witch hunt against people who made an inconsequential mistake. My job would make at least one of these groups, or tribes, very unhappy.
The law prohibiting the disclosure of the identity of a covert intelligence agent required specific and evil intent. Under the relevant statute, it was not enough to show that the people who disclosed the agent’s identity were stupid or careless. We had to prove that these men knew the CIA employee was undercover and that they also knew that revealing the name was against the law. Based on what we knew to that point, it seemed unlikely that we could prove, at least beyond a reasonable doubt, that Armitage or Rove had acted with the required criminal intent in speaking with Novak and other reporters. Novak backed their story that this had been gossip or a mistake, and there was likely not enough evidence to prove otherwise.
That put the Department of Justice in a tough spot. Though the people investigating the case were professionals, I knew that it would be very difficult, if there was insufficient evidence, for a department led by Republican John Ashcroft to credibly close an investigation against his colleagues in the same administration without recommending charges. We would also never want to bring charges just to avoid an accusation of conflict. Complicating matters was the fact that Karl Rove had managed one of John Ashcroft’s political campaigns back in his home state of Missouri before Ashcroft became attorney general. On top of that, Scooter Libby, whose conduct still needed to be sorted out, was a senior White House official with whom Ashcroft and senior Department of Justice officials interacted frequently.
The credibility of the Department of Justice is its bedrock. The American people must see the administration of justice as independent of politics, race, class, religion, or any of the many other things that divide humans into tribes. We had to do everything we could to protect the department’s reputation for fairness and impartiality, its reservoir of trust and credibility. Ashcroft understood that, and when I met with him to discuss my recommendation that he recuse himself from the case, he agreed. I immediately appointed Patrick Fitzgerald, then serving as the United States Attorney in Chicago, as special counsel to oversee the investigation. Although Fitzgerald was a political appointee and a close friend of mine, he had a strong reputation for independence and, as the U.S. Attorney in Chicago, was far enough away not to be seen as part of the executive branch leadership. I went one step further: because I was also a senior political appointee of President Bush, I delegated to Fitzgerald all my powers as acting attorney general. I remained his supervisor, but he didn’t need to ask me for permission to take any step in the case, which emphasized the independence of the investigation.
In December 2003, I held a press conference to announce the appointment. The Department of Justice routinely makes press announcements of significant developments in its work, including decisions to bring public charges or lawsuits, or the resolution of those cases. In matters of significant public interest, the department has long confirmed investigations and reported the completion of significant investigations without charges. Anytime a special prosecutor is named to look into the activities of a presidential administration it is big news, and, predictably, my decision was not popular at the Bush White House. A week after the announcement, I substituted for the attorney general at a cabinet meeting with the president. By tradition, the secretaries of state and defense sit flanking the president at the Cabinet Room table in the West Wing of the White House. The secretary of the treasury and the attorney general sit across the table, flanking the vice president. That meant that, as the substitute for the attorney general, I was at Vice President Dick Cheney’s left shoulder. Me, the man who had just appointed a special prosecutor to investigate his friend and most senior and trusted adviser, Scooter Libby.
As we waited for the president, I figured I should be polite. I turned to Cheney and said, “Mr. Vice President, I’m Jim Comey from Justice.”
Without turning to face me, he said, “I know. I’ve seen you on TV.” Cheney then locked his gaze ahead, as if I weren’t there. We waited in silence for the president. My view of the Brooklyn Bridge felt very far away.
I had assured Fitzgerald at the outset that this was likely a five- or six-month assignment. There was some work to do, but it would be a piece of cake. He reminded me of that many times over the next four years, as he was savagely attacked by the Republicans and right-leaning media as some kind of maniacal Captain Ahab, pursuing a case that was a loser from the beginning. Fitzgerald had done exactly as I expected once he took over. He investigated to understand just who in government had spoken with the press about the CIA employee and what they were thinking when they did so. After careful examination, he ended in a place that didn’t surprise me on Armitage and Rove. But the Libby part—admittedly, a major loose end when I gave him the case—turned out to be complicated.
Libby not only lied about his interaction with Tim Russert, claiming that he’d heard the covert agent’s name from him, but eight Bush administration officials testified that they talked to Libby about the covert agent’s name. More evidence revealed that Libby had proactively discussed the CIA employee with reporters, at the vice president’s request, to “push back” on stories critical of the administration’s basis for invading Iraq. Why Libby—an attorney who graduated from Columbia Law School—lied is not clear. Maybe he didn’t want to admit that the leak started at the vice president’s office, which would have caused political embarrassment, or he didn’t want to admit to an angry President Bush that he had been among the leakers.
It took Fitzgerald three years of litigation to get to a place where he charged, tried, and convicted Libby of making false statements in a federal investigation, perjury, and obstruction of justice. Republican loyalists howled that he was persecuting Libby because prosecutors could never prove the underlying crime—the intentional leaking of a covert agent’s name with prior knowledge of its illegality. Of course, these were the same Republicans who passionately believed that President Bill Clinton’s lies under oath over an affair with an intern simply had to be pursued, because obstruction of justice and perjury strike at the core of our system. Meanwhile, Democrats, who six years earlier attacked the case against Bill Clinton as a silly lie about sex, had discovered in the Libby case that they cared deeply about obstruction of justice crimes—when the obstructers were Republicans.
I would discover in the coming months that the pressures to bend the rules and to make convenient exceptions to laws when they got in the way of the president’s agenda were tempting. And it was a temptation fed by the urgency of the topic and the nature of the people around the president, people who couldn’t take the long view or understand the importance to the country of doing things the right way, no matter the inconvenience. They would be painful, exhausting lessons in the importance of institutional loyalty over expediency and politics. And more preparation for the future I couldn’t yet see.
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