Justice Dept. Watchdog Has Evidence Comey Probed Trump, on the Sly

Justice Dept. Watchdog Has Evidence Comey Probed Trump, on the Sly

By Paul Sperry, RealClearInvestigations
July 22, 2019

It is one of the most enduring and consequential mysteries of the Trump-Russia investigation: Why did former FBI Director James Comey refuse to say publicly what he was telling President Trump in private -- that Trump was not the target of an ongoing probe?

That refusal ignited a chain of events that has consumed Washington for more than two years – including Comey’s firing by Trump, the appointment of Special Counsel Robert Mueller, and ongoing claims that Trump obstructed justice. 

Now an answer is emerging. Sources tell RealClearInvestigations that Justice Department Inspector General Michael Horowitz will soon file a report with evidence indicating that Comey was misleading the president. Even as he repeatedly assured Trump that he was not a target, the former director was secretly trying to build a conspiracy case against the president, while at times acting as an investigative agent.

Two U.S. officials briefed on the inspector general’s investigation of possible FBI misconduct said Comey was essentially “running a covert operation against” the president, starting with a private “defensive briefing” he gave Trump just weeks before his inauguration. They said Horowitz has examined high-level FBI text messages and other communications indicating Comey was actually conducting a “counterintelligence assessment” of Trump during that January 2017 meeting in New York. 

In addition to adding notes of his meetings and phone calls with Trump to the official FBI case file, Comey had an agent inside the White House who reported back to FBI headquarters about Trump and his aides, according to other officials familiar with the matter.

Although Comey took many actions on his own, he was not working in isolation. One focus of Horowitz’s inquiry is the private Jan. 6, 2017, briefing Comey gave the president-elect in New York about material in the Democratic-commissioned dossier compiled by ex-British intelligence officer Christopher Steele. Reports of that meeting were used days later by BuzzFeed, CNN and other outlets as a news hook for reporting on the dossier’s lascivious and unsubstantiated claims. 

Comey’s meeting with Trump took place one day after the FBI director met in the Oval Office with President Obama and Vice President Joe Biden to discuss how to brief Trump — a meeting attended by National Security Adviser Susan Rice, Homeland Security Secretary Jeh Johnson, Deputy Attorney General Sally Yates and National Intelligence Director James Clapper, who would soon go to work for CNN. 

In his recently published memoir, “A Higher Loyalty,” Comey denied having "a counterintelligence case file open on [Trump],” though he qualified the denial by adding this was true only in the “literal” sense.  He also twice denied investigating Trump, under oath, in congressional testimony.

Former federal prosecutor Andrew McCarthy, who has written extensively on the Trump-Russia probe as a columnist for National Review, said that just because the president’s name was not put on a file or a surveillance warrant does not mean the Comey FBI was not investigating him. “They were hoping to surveil him incidentally, and they were trying to make a case on him,” McCarthy said. “The real reason Comey did not want to repeat publicly the assurances he made to Trump privately is that these assurances were misleading. The FBI strung Trump along, telling him he was not a suspect while structuring the investigation in accordance with the reality that Trump was the main subject."

But, former FBI counterintelligence agent and lawyer Mark Wauck said, the FBI lacked legal grounds to treat Trump as a suspect. “They had no probable cause against Trump himself for ‘collusion’ or espionage,” he said. “They were scrambling to come up with anything to hang a hat on, but had found nothing.”

What remains unclear is why Comey would take such extraordinary steps against a sitting president. The Mueller report concluded there was no basis for the Trump-Russia collusion conspiracy theories. Comey himself was an early skeptic of the Steele dossier -- the opposition research memos paid for by Hillary Clinton’s campaign that were the road map of collusion theories – which he dismissed as “salacious and unverified.”

Republicans including House Intelligence Committee Vice Chairman Devin Nunes believe that Comey, like his top counterintelligence agent Peter Strzok, was attempting to “stop” the Trump presidency for political reasons.

“You have the culmination of the ultimate spying, where you have the FBI director spying on the president, taking notes [and] illegally leaking those notes of classified information” to anti-Trump media, Nunes said in a recent interview. His panel is one of two House committees scheduled to hear testimony from Mueller on Wednesday. 

The IG’s report, which is expected to be released in early September, will shine new light on the origins of the Trump-Russia investigation, given that Horowitz and his team have examined more than 1 million records and conducted more than 100 interviews, including sit-downs with Comey and other current and former FBI and Justice Department personnel. The period covering Comey’s activities is believed to run from early January 2017 to early May 2017, when Comey was fired and his deputy Andrew McCabe, as the acting FBI director, formally opened full counterintelligence and obstruction investigations of the president.

Although Horowitz has focused primarily on whether the FBI misled the Foreign Intelligence Surveillance Court in its applications for surveillance warrants against former Trump campaign adviser Carter Page, he has pursued other related angles, including whether Comey personally misled the president and leaked classified FBI information about him, the officials said.

An attorney for Comey declined to answer emailed questions regarding the Horowitz investigation. The following account, drawn from officials briefed on the IG’s work and other sources, provides details of Comey’s actions between Trump’s election and his dismissal by the president.

Nine Conversations

Comey had nine conversations with Trump between January and May 2017, some in the White House. Almost every time, he went back to FBI headquarters and wrote up a memo documenting not only his version of the conversation, but also a complete update of the Crossfire Hurricane investigation, the FBI’s code name for the Trump-Russia probe it launched in July 2016.

Some of the notes, which Comey locked in a safe, cited classified sources and methods, including the identities of witnesses and informants along with the code names their FBI handlers assigned to them, according to federal court papers. They also document the assistance provided by foreign intelligence agencies. They are said to be a map not only of his agents’ investigative activity relating to Crossfire Hurricane, but also his own dealings with the president.

After a private dinner with the president at the White House in late January 2017, the FBI director went home and wrote a memo about their conversation on his laptop, printed it out and attached it as a memo to the case file — much like a field agent writing up an FD-302 evidentiary report after interviewing a suspect. He locked a copy in his personal safe and filed another copy at the FBI after sharing it with the bureau’s senior leadership. He also did some online sleuthing, personally searching Trump on Google and even looking through hours of YouTube videos of him.

In his 2018 memoir, Comey admits he held Trump in suspicion: “Even behind closed doors, he didn’t recoil about Russian behavior,” and seemed unwilling “to criticize the Russian government."

In February 2017, Comey wrote a memo saying that Trump had asked if Comey could “see his way clear” to end the probe of former-National Security Adviser Michael Flynn, who had resigned after admitting he hadn’t told the truth about a foreign policy discussion he had with the Russian ambassador during the transition. Comey has said he suspected the president was attempting to impede the FBI’s probe of Flynn. He immediately phoned McCabe to tell him about it.

Comey later huddled with his deputies on the 7th floor of the J. Edgar Hoover FBI Building to review his memo and get their input, setting off discussions about opening an inquiry into whether Trump had tried to obstruct the Flynn case. His general counsel James Baker, Chief of Staff Jim Rybicki and Associate Deputy Director David Bowdich were also in the room, along with the heads of the FBI’s national security and counterintelligence units, according to congressional records.

In an interview last year with George Stephanopoulos of ABC News, Comey said he took notes on the president’s remarks about Flynn because “it could be evidence of a crime. It was really important that it be well-documented.” At the time of the ABC interview, Comey was a witness in Mueller’s obstruction investigation, which ended with no charges or criminal prosecution.

McCabe’s deputy, Lisa Page, appeared to dissemble last year when asked in closed-door testimony before the House Judiciary Committee if Comey and other FBI brass discussed opening an obstruction case against Trump prior to his firing in May 2017. Initially, she flatly denied it, swearing: “Obstruction of justice was not a topic of conversation during the time frame you have described.” But then, after conferring with her FBI-assigned lawyer, she announced: “I need to take back my prior statement.” Page later conceded that there could have been at least “discussions about potential criminal activity” involving the president.

Comey says that after Trump  asked him to "lift the cloud" over his presidency, while still encouraging Comey to go after any “satellite” associates of his if they had done something wrong, the director reported the request to then-acting Deputy Attorney General Dana Boente. Comey filed another report with Boente in April after the president demanded to know why he had still failed to publicly disclose that he was not personally under investigation. In turn, Boente, who signed off on investigations including wiretaps of Trump advisers, took handwritten notes of his conversations with Comey and later turned them over to Mueller. (Boente is now the general counsel of the FBI.)

Trump grew angry at Comey for failing to tell the American people in public what he had been told at least three times in private — that he was not not under investigation in “this Russian business." Comey, in fact, promised Trump on several occasions that he would try to find a way to acknowledge that publicly. He never did.

As the Mueller report details, Trump’s frustration mounted later that March when Comey’s first public statement acknowledging a probe into possible ties between the Trump campaign and Russian interference in the 2016 presidential election left the impression that Trump himself was a target. When Comey refused in May 3, 2017 Senate testimony to rule out anyone in the Trump campaign as a potential target of the criminal investigation, including "the president" — the opposite of what he had intimated to the president -- Trump fumed to then-White House Counsel Don McGahn that it was “the last straw.”

Just a few days later, on May 9, Trump unceremoniously fired the FBI director. In response, Comey’s deputy McCabe ordered agents to formally open investigative files on Trump for espionage and obstruction of justice. “It’s pretty clear that Comey’s firing is what prompted McCabe’s fury," former federal prosecutor and independent counsel Solomon L. Wisenberg said.

McCabe’s former aide Page admitted in her closed-door congressional interview that, at the time her boss ordered the investigations, they couldn't connect Trump to the Russia conspiracy, and that “it still existed in the scope of possibility that there would be literally nothing” there. In fact, her lead partner on the case, Peter Strzok, confessed in a text: “My gut sense and concern is there’s no big there, there.”

Comey’s White House Source

At the same time Comey was personally scrutinizing the president during meetings in the White House and phone conversations from the FBI, he had an agent inside the White House working on the Russia investigation, where he reported back to FBI headquarters about Trump and his aides, according to officials familiar with the matter. The agent, Anthony Ferrante, who specialized in cyber crime, left the White House around the same time Comey was fired and soon joined a security consulting firm, where he contracted with BuzzFeed to lead the news site's efforts to verify the Steele dossier, in connection with a defamation lawsuit.

Knowledgeable sources inside the Trump White House say Comey carved out an extraordinary new position for Ferrante, which allowed him to remain on reserve status at the FBI while working in the White House as a cybersecurity adviser.

“In an unprecedented action, Comey created a new FBI reserve position for Ferrante, enabling him to have an ongoing relationship with the agency, retaining his clearances and enabling him to come back in [to bureau headquarters],” said a former National Security Council official who requested anonymity.

“Between the election and April 2017, when Ferrante finally left the White House, the Trump NSC division supervisor was not allowed to get rid of Ferrante,” he added, "and Ferrante continued working — in direct conflict with the no-contact policy between the White House and the Department of Justice.”

Through a spokeswoman at FTI Consulting, which maintains the BuzzFeed contract, Ferrante declined to comment.

Another FBI official, Jordan Rae Kelly, who worked closely with Mueller when he headed the bureau, replaced Ferrante upon his White House exit (though she signed security logs for him to continue entering the White House as a visitor while he was working for BuzzFeed). Kelly left the White House last year and joined Ferrante at FTI Consulting.

Working with Comey liaison Ferrante at the NSC in early 2017 was another Obama holdover — Tashina Gauhar, who remains a top national security adviser at the Justice Department.

In January 2017, Gauhar assisted former acting Attorney General Sally Yates in the Flynn investigation. Later, she helped Deputy Attorney General Rod Rosenstein resist, initially, Trump’s order to fire Comey. Gauhar also took copious notes during her meetings with White House lawyers, which were cited by Mueller in the section of his report dealing with obstruction of justice.

Comey at Trump Tower

The officials familiar with Horowitz’s inquiry said his team has quizzed Comey about the circumstances surrounding a meeting he convened with Trump in Manhattan where the president-elect was first told of the Steele dossier material. The stated purpose was to brief the incoming president about political warfare tactics, known as “active measures,” that Russia allegedly used against the U.S. during the 2016 campaign.

The officials said the inspector general has reviewed high-level FBI text message and other communications that indicate the agency may also have used the briefing for the covert purpose of carrying out a "counterintelligence assessment" operation against Trump and his senior staff who attended the briefing that day at Trump Tower.

In his memoir, Comey said he flew to New York on Jan. 6, 2017, to give the president-elect a private “defensive briefing” — to "tell him what Russia had done to try to help elect him.”

But there was more to it than that, in light of Comey’s meeting in the Oval Office the day before with Obama, Biden and the other Cabinet officials. Their plan to brief Trump, which Obama approved, included disclosing allegations from the dossier about the president-elect.

As the top law enforcement official in the room, Comey was chosen to confront Trump with "the material" that accused him of being compromised by Russia and engaging in a criminal conspiracy with Moscow to hack the election. The morning before flying to New York, Comey met at FBI headquarters with a group of counterespionage officials and agents who were read in on the plan — code-named the “sensitive matter team” — for an update on the allegations against Trump and the overall Russia investigation.

The initial part of the intelligence briefing at Trump Tower included Vice President-elect Mike Pence, Reince Priebus, Trump’s chief of staff, and Flynn, who didn’t know he was under FBI scrutiny. Following a report on alleged Russian election interference, Comey cleared the conference room to privately brief Trump on the Clinton campaign-funded Steele dossier itself — without disclosing its source. He referred to the political document simply as “the derogatory files.”

Comey limited his briefing to the lurid rumor about prostitutes in a Moscow hotel, while omitting the fact that he had signed a wiretap warrant to eavesdrop on one of Trump’s campaign advisers based on other parts of the dossier.

Comey also failed to tell the president-elect that Flynn was under investigation along with Carter Page. In other words, Comey left the president in the dark on the most substantive assertions of the dossier.

The FBI was investigating Trump’s campaign “in hope of making a case on him,” McCarthy said. “That is why Comey told Trump only about the salacious allegation involving prostitutes in a Moscow hotel; he did not tell the president-elect either that the main thrust of the dossier was Trump’s purported espionage conspiracy with the Kremlin, nor that the FBI had gone to the [FISA court] to get surveillance warrants based on the dossier.”

“Make no mistake,” McCarthy added, “the investigation was always about Donald Trump, from Day One."

Comey also withheld the facts that the dossier was financed by the Hillary Clinton campaign (Comey had known this since October 2016, if not earlier), that it was compiled by a private foreign contractor, and that it was not a product of the U.S. government. The omissions led Trump to believe the contents of the dossier came from U.S. intelligence and were taken seriously by serious people in the government. If he had known otherwise, he could have easily dismissed the information as biased and unreliable — and questioned why Comey was even bothering to conduct such a briefing.

Though Comey claims in his book he was “protecting" the president-elect from “any kind of coercion” or blackmail by Moscow, several former and current federal law enforcement officials said he was really testing his reaction to see if he showed signs of guilt or revealed information that could be used against him in the conspiracy case the FBI had already been building against no fewer than four of his advisers — Flynn, Page, George Papadopoulos and Paul Manafort. In fact, it was Comey who just a couple of weeks later would dispatch two agents to the White House to grill Flynn about his post-election conversations with Russian diplomats. (Flynn’s lawyers argue the FBI set a “perjury trap” for the retired general.)

“We are not investigating you, sir,” Comey told Trump, an assurance that “seemed to quiet him,” the former director remarked in his book.

That statement seems undercut by the fact that Comey typed up his notes on his laptop in his government vehicle less than five minutes after he walked out of Trump Tower, according to a heavily redacted Jan. 7, 2017, email to his top aides. Comey self-classified the notes at the “SECRET” level.

“I executed the session exactly as planned,” Comey reported back to his “sensitive matter team.”