A Higher Loyalty

Truth, Lies, and Leadership

By James Comey

Of course, in a healthy organization, doubt is not weakness, it is wisdom, because people are at their most dangerous when they are certain that their cause is just and their facts are right. And I’m not talking about finger-in-the-wind, I’m afraid-to-make-a-decision kind of doubt. Decisions have to be made, often quickly, even the hardest decisions, And the hardest ones always seem to need to be made the fastest and recognition that they could be wrong. That humility leaves the leader on the least information. But those decisions must be made with the open to better information until the last possible moment.

In fairness to the president and vice president, our modern culture makes this incredibly hard for leaders-especially those in government–even if they possess enough confidence to be humble. Admitting doubt or mistakes is career suicide. And that’s the way we want it, right? We want strong, certain leaders. Imagine supporting a leader who, as he finished his time at the helm, told us that, although he didn’t do anything intentionally wrong, he is sure he made many mistakes, prays his mistakes haven’t hurt people, and hopes we will forgive and forget the times when he was incompetent. That weakling would be run out of town on a rail. But America’s first president said exactly that in his farewell to the country in 1796:

Though, in reviewing the incidents of my administration, I am unconscious of intentional error, I am nevertheless too sensible of my defects not to think it probable that I may have committed many errors. Whatever they may be, I fervently beseech the Almighty to avert or mitigate the evils to which they may tend. I shall also carry with me the hope that my country will never cease to view them with indulgence; and that, after forty five years of my life dedicated to its service with an upright zeal, the faults of incompetent abilities will be consigned to oblivion, as myself must soon be to the mansions of rest.

(Comey 2018, 104-105)

… By acknowledging our issues, we have the best chance of resolving them in a healthy way. Buried pain never gets better with age. And by remembering and being open and truthful about our mistakes, we reduce the chance we will repeat them.

Harry Truman once said, “The only thing new in the world is the history you don’t know.” Humans tend to do the same dumb things, and the same evil things, again and again, because we forget.

(Comey 2018, 138)

… Accidents sloppines and even extreme carelessness with regard to declassified information were not things that were prosecuted. Ever. For a current government employee, of course, there would be severe consequences for such carelessness including the real possibility of losing access to classified information or getting fired, but there would be no criminal prosecution.

If the investigation continued on the same trajectory: the challenge was going to be dosing the case in a way that maintained the confidence of the American people that their justice system was working in an honest, competent, and nonpolitical manner. We’d never convince extreme Clinton haters in the news media of that, of course, but hopefully we could persuade a majority of fair and open-minded Americans.

(Comey 2018, 171-172)

Contributing to this problem, regrettably, was President Obama. He had jeopardized the Department of Justice’s credibility in the investigation by saying in a 60 Minutes interview on October 11, 2015, that Clinton’s email use was “a mistake” that had not endangered national security. Then on Fox News on April 10, 2016, he said that Clinton may have been careless but did not do anything to intentionally harm national security, suggesting that the case involved over classification of material in the government. President Obama is a very smart man who understands the law very well. To this day, I don’t know why he spoke about the case publicly and seemed to absolve her before a final determination was made. If the president had already decided the matter, an outside observer could reasonably wonder, how on earth could his Department of Justice do anything other than follow his lead? The truth was that the president—as far as I knew, anyway—had only as much information as anyone following it in the media. He had not been briefed on our work at all. And if he was following the media, he knew nothing, because there had been no leaks at all up until that point. But his comments still set all of us up for corrosive attacks if the case were completed with no charges brought.

(Comey 2018, 172-173)

One weekend in early May, I typed a draft statement laying out the findings of this case with the most aggressive transparency possible assuming the investigation ended in the current position. Unless we suddenly found a smoking-gun email or directive clearly pointing to Clinton’s intent, or unless she lied to us in the FBI interview, both of which were possibilities, this was the way I expected the case to end. In such a poisonous political environment, I knew we needed to think far in advance how best to present our decision.

Many changes were made to her emails seemed really sloppy to us, more than ordinary carelessness. At one point the draft used the term “grossly negligent,” and also explained that in this case those words should not be interpreted the way a hundred-year-old criminal statute used the term. One part of that 1917 law made it a felony if a person “through gross negligence permits [classified material] to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed.”

The history of that provision strongly indicated that comes in 1917 meant the statute to apply only to conduct that was very dose to willful that is driven by bad intent and members of Congress who voted for it back then were very concerned that they not make borderless behavior a felony. I was told that the Department of Justice had only changed one person under the statute since 1919: a corrupt FBI agent whose conduct was for worse than gross negligence and now been covered under it. This context strongly reinforced my sense that the statute simply did not apply in the Clinton email case and made use of the term “grossly negligent” inappropriate and potentially confusing given the old statute. So I directed our team to consider other terms that more accurately captured her behavior, After looking at multiple drafts, I settled on “extremely careless” as the best way to describe the conduct.

(Comey 2018, 174-175)

Hindsight is always helpful, and if I had it to do over again, I would do some things differently, I would avoid the “Seacresting” mistake by saying at the beginning of my statement that we weren’t recommending charges. At the time, I thought there was a risk people wouldn’t listen carefully after the headline, but looking back, the risk of confusion from me delaying the conclusion was greater. More important, I would have tried to find a better way to describe Secretary Clinton’s conduct than “extremely careless.” Republicans jumped on the old statute making it a felony to handle classified information in a “grossly negligent” way—a statute that Justice would never use in this case.

But my use of “extremely careless” naturally sounded to many ears like the statutory language—“grossly negligent”—even though thoughtful lawyers could see why it wasn’t the same. I spent hours responding to congressional questions about it, and it became a talking point for those interested in attacking the FBI and the Department of Justice. Other than those two things, and in spite of the political shots directed at me since—and my supposedly being fired because of it I would do the same thing again at that announcement, because I still believe it was the best available alternative to protect and preserve the Department of Justice’s and the FBI’s reservoir of trust with the American people.