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: