When Donald Trump asked FBI Director James Comey in February to drop the investigation of former National Security Adviser (and then-unregistered foreign agent) Michael Flynn, the president apparently didn’t realize that Comey would behave like one of his more than 13,000 special agents.
As the New York Times reported from a source close to Comey, the FBI director went back to his office and wrote down from memory a summary of his conversation with Trump.
“I hope you can see your way clear to letting this go, to letting Flynn go,” Trump told Comey, according to a memo the FBI director wrote. “He is a good guy. I hope you can let this go.”
About three months after Trump allegedly said this, the president fired Comey.
Had this been a normal criminal investigation, and had Comey been a special agent in the field, the memo he would have written would have been known, in the FBI’s parlance, as an FD-302. The FBI does not record conversations with subjects related to criminal investigations. Instead, FBI agents, using their memory and sometimes handwritten notes, draft memos that summarize the conversations and include purportedly verbatim quotes. Federal judges and juries have consistently viewed these memos as indisputable fact. For this reason, Comey’s memo is no normal government memo. It could do lasting damage to Trump’s presidency, if not contribute to costing him the nation’s highest office altogether.
While Comey is now positioned for history to remember him as the cop who took down Trump, or tried to at great professional expense, there should be wariness about lionizing Comey in the way the news media have in recent days. Under Comey, the FBI pushed investigative and surveillance powers to new and controversial limits and employed tactics that were morally and ethically bankrupt.
In short, Comey’s FBI did some terrible things.
Trevor Aaronson’s conversation with Jeremy Scahill on the FBI can be heard on the latest episode of the Intercepted podcast:
In an effort to stop terrorist attacks before they happen, Comey expanded the practice instituted by his predecessor, Robert Mueller, to use undercover agents and informants to catch would-be attackers in sting operations. These stings never caught terrorists on the eve of their attack. Notably, the FBI twice investigated Omar Mateen, the Orlando nightclub shooter who killed 49 people and wounded 53 others while claiming allegiance to ISIS in a 911 call, but did not deem him a threat. At the same time, Comey’s FBI agents aided in the prosecution of Sami Osmakac, a Florida man caught in a sting operation, despite having called him in private conversations a “retarded fool.” They also busted penniless, mentally ill homeless men who claimed to be associating with ISIS. In one of those cases, an informant even gave a homeless man $40 so he could purchase the machete and knives he needed for his supposed plot. To catch a lonely Michigan man, the FBI used two female informants to set up a honeypot, in which the FBI informants claimed to be in love with the target so as to manipulate him. The target, in turn, claimed to have an AK-47 and to have attempted to travel to Syria. But it turned out he was just saying all that to impress the ladies.
When the FBI busted the dark web child-porn site Playpen, agents did not shut down the enterprise, going against previous FBI policy. In investigations of child pornography under Mueller, the FBI shut down child-porn websites immediately, believing that allowing distribution of the images and videos would further victimize the children who had been exploited. Comey’s FBI continued to operate Playpen for nearly two weeks in an effort to surreptitiously install tracking software on the computers of its users; child pornography was available from FBI servers during this period of time.
Just days before his firing, Comey testified before Congress that one-half of all smartphone and computer devices analyzed by the FBI can’t be examined “with any technique” due to encryption. During his tenure, Comey worked aggressively to give the FBI access to encrypted devices. Notably, Comey battled in court with Apple over the tech company’s unwillingness to help unlock the iPhone of one of the San Bernardino shooters. The FBI later paid a hacker somewhere in the neighborhood of $1 million to help unlock the phone. At the time, Comey told a House committee: “There is no such thing as absolute privacy in America.”
Despite being portrayed as flawless by movies and television shows, the FBI Laboratory turned out to be a vehicle for bad science and injustice. In 2015, the FBI acknowledged that examiners in its microscopic hair comparison unit had given flawed testimony, including in 32 cases in which defendants were sentenced to death.
Comey endorsed the practice of FBI undercover agents posing as members of the news media, though he called the practice “rare.” Of known cases in which FBI agents pretended to be journalists, they emailed a bomb-threat suspect near Seattle by posing as Associated Press employees, claimed to be a documentary film crew to investigate Nevada rancher Cliven Bundy and his supporters, and purported to be an investigator working with a journalist to conduct an undercover inquiry in Colorado.
Other examples of problems under Comey’s watch include the following:
- An FBI translator, Daniela Green, traveled to Syria in 2014 and married Denis Cuspert, an ISIS operative and former German hip-hop artist. The FBI employee wasn’t undercover when this happened. She was in love. When she returned to the United States, Green received favorable treatment by becoming a cooperating witness — just two years in prison for making false statements — despite dozens of FBI cases in which ISIS sympathizers do far less and receive significantly harsher sentences.
- More than a year after two men attacked a convention center near Dallas where Pamela Geller had organized the “First Annual Muhammad Art Exhibit and Contest,” the FBI admitted in a court filing that it had an undercover agent embedded close to the two attackers, Elton Simpson and Nadir Soofi. After one of the attackers posted a link to the “Draw Muhammad” event, the undercover agent wrote: “Tear Up Texas.” The undercover agent was on site during the attack but fled when the shooting started. In April, after CBS’s “60 Minutes” covered the story, Sen. Charles Grassley, chair of the Senate Judiciary Committee, wrote a letter to Comey asking, among other questions: “Did the FBI suspect that Simpson and Soofi planned an attack at the drawing contest? Did the FBI have any formal or informal operational plan to intervene to stop Simpson and Soofi from carrying out an attack?”
- The FBI expanded its authority to investigate people in the United States even when they are not suspected of being involved in criminal activity. This is commonly done in the service of recruiting informants, of which the FBI has more than 15,000. According to a classified FBI manual on the handling of informants that was updated under Comey, FBI agents are encouraged to build files on possible informants, may use undercover identities to recruit informants, and with proper clearances may recruit minors as well as journalists, clergy, and lawyers. The FBI under Comey also codified a policy of using immigration as leverage to recruit informants and the threat of removal to keep coerced informants productive.