News broke Tuesday evening that then-FBI Director James B. Comey had written notes in February indicating that President Trump had asked him to end an investigation of former White House national security adviser Michael T. Flynn.
It was big news to the rest of us. To Matthew Miller, it was as predicted.
Five days before the New York Times broke that story, the former top Justice Department spokesman tweeted this: “One thing I learned at DOJ about Comey: he leaves a protective paper trail whenever he deems something inappropriate happened.”
Given that foresight - and Miller's experience in the DOJ during the Obama administration - I thought it worthwhile to find out what else he saw coming down the pike. As you'll see below, he thinks that this is the tip of the spear and that former FBI Director James Comey's actions suggest he may have been building a legal case against the president of the United States.
Below is our conversation, edited lightly for clarity and length.
Q: You were pretty prescient in noting that the Comey memos would come back to bite Trump - saying “stay tuned.” How widely known are Comey's note-keeping habits? Is it exceptional in some way?
A: I don't think it's exceptional either for an FBI director or for anyone at the FBI or at the Justice Department. If they have a conversation with someone where the other person raises something inappropriate, it's a pretty standard practice to then write a memo to the file, basically, putting that down. There were times when I was at Justice when I got phone calls from people that would make inappropriate requests of me, and I would usually tell them, “That's an inappropriate request; I can't do that.” And then I would send an email to my deputy after the conversation describing it, so if anyone ever asked about it, there was a record of exactly what happened and that I didn't do anything wrong.
Q: And so you would generally not only write the memo, but you would talk to somebody about it in real time?
A: I think people do it different ways. You can either just send a memo to the file and just kind of keep it to yourself, or the safer thing is to actually memorialise it, either in a conversation or a written record with someone else at the Justice Department.
Q: What kinds of things are usually in these notes? Is it a pretty straight recounting of the conversation, or will they also include things like, “Well, I think this may have been illegal?”
A: I think it completely depends on the conversation and the person you're having it with. It's a very different thing if someone outside the Justice Department calls you and asks you to find out the status of an investigation, and you tell them no. That's one thing - versus the president of the United States telling you to quash an investigation. In the orders of magnitude of wrongdoing and impact, they're two very different things.
I guess my point is, there's not a great parallel between conversations with the president and anything else - mostly because it's pretty infrequent that the FBI director would be having one-on-one conversations with the president. Something that's important here is that it was inappropriate for Trump to have any conversations with Comey about the status of this case - let alone to make the kind of request that we now know he did.
Q: So that would definitely raise a red flag for Comey.
A: Yeah. And Comey - he might have had two motives here. One is, when you're put in this situation, you want to make a record, so if the other side ever tells their story, you can pretty clearly demonstrate with contemporaneous records that you acted appropriately.
I keep wondering - something in the back of my head keeps saying to me - maybe Comey was actually trying to build an obstruction-of-justice case against the president here. You know what I mean? Because Comey could handle this one of two ways: The president makes this request, and the first time Comey might say to him, “You know, Mr. President, it's inappropriate for us to have this conversation, and I would appreciate if you would not make a request like this to me again.” That's a way to handle it that says very clearly to the president that this should never be repeated.
But if you're trying to build an obstruction-of-justice case, you might want the president to keep talking, because everything he does is digging a deeper legal hole for himself.
Q: And that would be, ostensibly, a reason for him not to resign after that first conversation, as some people have suggested he should have.
A: That's exactly right. You have to remember, the president in that letter firing Comey said, “You told me three times I wasn't under investigation.” We have no idea if that's true or not. But I think it's also a little bit of a red herring, because the president's campaign is under investigation. He is obviously the head of his own campaign, and when the Justice Department investigates any organisation - whether it be a Mafia organisation, a cartel or just a corporation - you're always investigating and looking to make a case against the highest person possible. So they would always have in their minds, “We have no idea where this is going, but at the end of it, it could reach the very top of the campaign.”
So in that particular circumstance, Comey might have wanted him to keep talking to see what he says.
Q: A lot of this could come down to how much Comey wants to fight this battle with the president. Is there anything in his past that leads you to believe he would willingly and proactively want that fight?
A: Yes. Look, there's one thing I agree with the president on: That Comey is a showboat. You just look at his actions in the [Hillary] Clinton case, where he made himself the central player when there was no reason for him to be the central player. That aside, his entire history shows that he likes to be at the centre of attention. You look at the Ashcroft bedside incident where that unfolded in one of the most dramatic congressional hearings in history. And it was pretty clear at the time that that hearing had been pretty well planned by Comey and by Preet Bharara - to uncover real wrongdoing by the Bush administration - but also to present Comey in a very favourable light.
Q: It had the bonus of that.
A: Right. And honestly, I think that's what he had in mind with his July press conference on the Clinton emails last year. I think he is a man of integrity, but he also thinks of himself very much as a man of integrity and likes the spotlight that highlights that. And he's going to enjoy the spotlight of a congressional hearing when he inevitably testifies.
We have no idea who made the decision to leak this, whether it was Comey himself or it was people at the FBI. And we don't know what their complete strategic goals are. But if you were really looking to damage the president, you wouldn't leak the most damaging memo first. So who knows what comes next?
Q: Are there other instances in recent years, whether with Comey or anybody else, where these contemporary notes were really important?
A: There's one involving Comey that I actually had in mind when I sent that tweet last week. In 2005, the Bush administration was authorising - or reauthorising - waterboarding and other torture tactics. And Comey had signed off on it as a deputy attorney general. But in addition to signing off on it, he had a meeting with Attorney General [Alberto R.] Gonzales and laid out why he thought it was a bad idea for the government to torture people and how it would make the government look bad and call into question the credibility of everyone involved. And not only did he have the meeting, but he memorialised it in a meeting with his chief of staff, where he said exactly what he had laid out to the attorney general.
We know this because in 2009, when the Office of Professional Responsibility at the DOJ was investigating this issue and the New York Times wrote a story about it, magically Comey's email to his chief of staff appeared in that story - and made its way to OPR. I was at DOJ at the time, and what it told me was Comey had the presence of mind to write the email in the first place, print a copy of it when he left the department, sit on it for four years and be ready to give it to a reporter when someone questioned why he had signed off on torture.... I remember watching it and thinking, “This is very instructive of how Comey operates inside a bureaucracy.”
The biggest names involved in the Trump-Russia investigation
The biggest names involved in the Trump-Russia investigation
1/11 Paul Manafort
Mr Manafort is a Republican strategist and former Trump campaign manager. He resigned from that post over questions about his extensive lobbying overseas, including in Ukraine where he represented pro-Russian interests.
2/11 Mike Flynn
Mr Flynn was named as Trump's national security adviser but was forced to resign from his post for inappropriate communication with Russian Ambassador to the US Sergey Kislyak. He had misrepresented a conversation he had with Mr Kislyak to Vice President Mike Pence, telling him wrongly that he had not discussed sanctions with the Russian.
3/11 Sergey Kislyak
Mr Kislyak, the Russian ambassador to the US, is at the centre of the web said to connect President Donald Trump's campaign with Russia.
4/11 Roger Stone
Mr Stone is a former Trump adviser who worked on the political campaigns of Richard Nixon, George HW Bush, and Ronald Reagan. Mr Stone claimed repeatedly in the final months of the campaign that he had backchannel communications with WikiLeaks founder Julian Assange and that he knew the group was going to dump damaging documents to the campaign of Democratic candidate Hillary Clinton - which did happen. Mr Stone also had contacts with the hacker Guccier 2.0 on Twitter, who claimed to have hacked the DNC and is linked to Russian intelligence services.
5/11 Jeff Sessions
The US attorney general was forced to recuse himself from the Trump-Russia investigation after it was learned that he had lied about meeting with Russian Ambassador to the US Sergey Kislyak.
6/11 Carter Page
Mr Page is a former advisor to the Trump campaign and has a background working as an investment banker at Merrill Lynch. Mr Page met with Russian Ambassador to the US Sergey Kislyak during the 2016 Republican National Convention in Cleveland. Mr Page had invested in oil companies connected to Russia and had admitted that US Russia sanctions had hurt his bottom line.
7/11 Jeffrey "JD" Gorden
Mr Gordon met with Russian Ambassador to the US Sergey Kislyak during the 2016 Republian National Convention to discuss how the US and Russia could work together to combat Islamist extremism should then-Republican presidential candidate Donald Trump win the election. The meeting came days before a massive leak of DNC emails that has been connected to Russia.
8/11 Jared Kushner
Mr Kushner is President Donald Trump's son-in-law and a key adviser to the White House. He met with a Russian banker appointed by Russian President Vladimir Putin in December. Mr Kushner has said he did so in his role as an adviser to Mr Trump while the bank says he did so as a private developer. Mr Kushner has also volunteered to testify in the Senate about his role helping to arrange meetings between Trump advisers and Russian Ambassador to the US Sergey Kislyak.
9/11 James Comey
Mr Comey was fired from his post as head of the FBI by President Donald Trump. The timing of Mr Comey's firing raised questions around whether or not the FBI's investigation into the Trump campaign may have played a role in the decision.
10/11 Preet Bharara
Mr Bahara refused, alongside 46 other US district attorney's across the country, to resign once President Donald Trump took office after previous assurances from Mr Trump that he would keep his job. Mr Bahara had been heading up several investigations including one into one of President Donald Trump's favorite cable television channels Fox News. Several investigations would lead back to that district, too, including those into Mr Trump's campaign ties to Russia, and Mr Trump's assertion that Trump Tower was wiretapped on orders from his predecessor.
11/11 Sally Yates
Ms Yates, a former Deputy Attorney General, was running the Justice Department while President Donald Trump's pick for attorney general awaited confirmation. Ms Yates was later fired by Mr Trump from her temporary post over her refusal to implement Mr Trump's first travel ban. She had also warned the White House about potential ties former National Security Adviser Michael Flynn to Russia after discovering those ties during the FBI's investigation into the Trump campaign's connections to Russia.
Q: What reason might these notes or memos not become public?
A: One of the tests of the next few days is whether DOJ will try and block the FBI from turning these over to Congress. I think we can guess that the FBI, left to its own devices, is going to want to turn them over, but Sessions and [Assistant Attorney General Rod] Rosenstein may try to block that. They could cite a number of privileges.
They could cite the fact that this is an ongoing investigation, and so they won't turn them over. That would be the argument that the underlying investigation into Russia is an ongoing investigation... They could also cite executive privilege that these are conversations between the Department of Justice and the president, and that they were covered by executive privilege and shouldn't be turned over. That will be a, politically, very tough argument for the DOJ and the White House to make, I think.
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