James Comey [00:00:00] You can’t look at the images of January the 6th in any fair way as a supporter of Donald Trump and not have it whisper to you, you fool. Look what you did to America. Look what your part of. There are people who can look at that and absorb the pain and say, I was wrong and emerge from that fog, but most people can’t do that. And so, it takes time and drifting and story writing to get out from under that kind of fog of lies. And so, it’s going to be a long process for the Republican Party, but it does not deserve the support of the American people until it begins that journey of escaping that fog of lies.

Alex Lovit [00:00:40] Welcome to The Context, a podcast about the past, present and future of democracy from the Charles Kettering Foundation. I’m your host, Alex Lovit. My guest today is James Comey. Comey has spent a long legal career, mostly in the federal Justice Department, culminating in serving as director of the FBI from 2013 until 2017. In the years since, he’s written several bestselling books, most recently a legal thriller entitled Central Park West. He also serves as a senior fellow for the Kettering Foundation. Comey has devoted his entire career to building government institutions that serve the public interest, and to navigating the tricky intersections between partisan politics and an impartial justice system. He’s been in the hot seat, making hard calls on high profile questions, and he’s faced plenty of criticism for how he communicated about the FBI’s investigations of Hillary Clinton during the 2016 election. But whatever you think of Comey’s decisions, his experience means that he’s thought long and hard about how to balance the justice system’s independence and democratic accountability, and how to communicate about these difficult issues to the public. Comey knows that our public institutions are not perfect and must be improved. While director of the FBI, he worked to build public trust and to instill a culture of humility, honesty and accountability. Given his professional expertise and experience, Comey is also well positioned to comment on the unprecedented situation we currently find ourselves in. One of our two major parties is beholden to a big lie of election denialism, and one of the likely nominees for our highest office is under criminal indictment by a Justice Department ultimately controlled by his major political rival. Both President Joe Biden and former President Donald Trump claim that the other is a threat to democracy. These are risky circumstances for our country, and it’s a tricky time for the Justice Department. Comey’s experience and judgment can help us to evaluate the competing claims we’re hearing during this election. Amidst the chaos and anxieties of our current moment, I found this conversation clarifying, and I hope you feel the same.

 

James Comey, welcome to The Context.

James Comey [00:02:49] It’s great to be with you, Alex.

Alex Lovit [00:02:51] This is a podcast about democracy, so I thought I’d start off by asking you about democracy. For any American, a commitment to democracy means that sometimes you have to accept election results or laws or policies that you disagree with, but you’ve been in positions where the election result determined who your boss was going to be, and you might have to enforce those laws and policies that you might disagree with. How have you maintained your faith in democracy? Have you ever been tempted to think the American public has elected a president or a Congress that wants me to do X, but I have professional expertise on this subject, and I think Y is the right thing to do?

James Comey [00:03:26] It’s a great question. I maintain my faith in democracy because I’ve been inside the government for so many years and seen how it operates, really without regard to politics. Oftentimes I hear people using in a pejorative way the term “deep state,” and there isn’t a deep state in the sense that those folks mean it. But there’s a deep culture and commitment to trying to do things in the right way, following the rules consistent with the rule of law. And maybe that’s hard to see from the outside. It’s just bred into you once you join the Department of Justice. So, it’s been part of my career—and I’ve served under Republican presidents and Democratic presidents, some were better than others, and I’m not going to name any—but it didn’t really matter in the sense that I was inside an institution that operates the way the American people would want it to. I keep coming back to the statue that is in most courthouses in the United States of the figure of Lady Justice holding scales blindfolded, because a system is only just if decisions are being made based on facts and the law without regard to the power of the person being considered, or the race, or the gender, or the sexual orientation, or any of the normal things that make us complicated, interesting people. We’ve made a decision that as a society, we’re going to make judgments without regard to those things because if we start considering those things, the system is no longer just. So, it’s really in the definition of the word justice that if we consider politics, politics is not always about facts, right? It’s about loyalty. It’s about interest. It’s about power. It’s about connection. It’s about friendship. It’s about all the things that we keep Lady Justice blindfolded in an effort to keep out of our judgments, so that we have a justice system. Protecting the institutions of justice from political influence is at the heart of the meaning of justice.

Alex Lovit [00:05:36] One of your priorities as an FBI director was to recruit a more racially diverse staff. Why was that important for agency effectiveness or for public trust, or for whatever other reason? And how did you go about recruiting a workforce that looked more like America?

James Comey [00:05:50] When I became director in 2013, I got briefed on all kinds of stuff, but the one briefing that struck me, frightened me actually, was a demonstration that the FBI special agent workforce over the preceding decade had been growing steadily more white, non-Hispanic Caucasian. That we were in a place where 82, I think it was in 2013, 82% of our special agents looked like me. And there’s nothing wrong with looking like me, but in a country that was becoming, and still is, more complicated, more diverse, in my view, as a result, more wonderful, we were less effective at protecting America if everybody looked like me. For a bunch of reasons, including that it would be harder to get people to trust us, to know us, and for us to know the communities that we have to serve and protect. And so, I saw that as a crisis. So, I wrote to the whole organization and said, here’s why I think this matters so much, because I knew I was shouting a little bit into a slightly cynical wind, where things around diversity for a busy, tired workforce were sometimes seen as check-the-box exercises. And so, I explained to them, look, there’s two reasons why this matters a lot. First is the moral imperative. We have to make sure that this organization, which is part of a Justice Department, is welcoming to all sorts of people. But there’s also a practical application that is critical. We are not going to be as good as we should be if we all end up looking like me. And there’s a chance it’ll become a fall down a flight of stairs. That when you get to a point where 82% of your special agents are white people, again, nothing wrong with white people, but if you get to the place where that’s the case, you’ll be quickly at 100%, because people of different backgrounds will look at the organization and say, oh, that’s a place for white people, and we’ll be even less effective then. And so, I said to the organization, look, that’s the crisis. The good news is the talent is out there. They just don’t realize that they should take enormous cuts in pay, and accept stress, and risk their lives to be part of this enterprise. But if we go out there and show them what this place is really like, there are lots of people who don’t look like me who want to be part of work with moral content, as hard as it is. And so, I just set out in lots of different ways to show ourselves to Black applicants who might be interested in the FBI, to Latino applicants who might be interested in the FBI, all sorts of different groups. But to do that by showing them what we’re really like and also confronting some of their, not misconceptions, their conceptions of us that are fact-based. A whole lot of Black people in the United States, far more than white people, know the history of the FBI’s interaction with civil rights leaders during the 1960s. I said to the organization, we may forget that. but if you’re a Black American, you’re not going to forget that. And it colors the way you see the organization. So, we need to own that history, confront it, and speak about it plainly and tell people, look, we did these things. These things were bad. We’ll show you all the ways they were bad. And we’re going to study that ourselves to improve. But we’re different than that now. And come look at us and you’ll see that and want to be part of this.

Alex Lovit [00:09:06] You were talking there about the importance of recognizing the FBI’s past, and I wonder if we could just say it more explicitly. I know you had on your desk at the FBI a copy of the order that Kennedy signed authorizing investigation of Martin Luther King Jr. Can you talk a little bit about what went wrong there and how you attempted to fix it?

James Comey [00:09:28] Yeah. I took the original copy of the original October 1963 memo from one of my predecessors, the first FBI director J. Edgar Hoover, to Bobby Kennedy—Robert Kennedy was the attorney general—asking for authorization to electronically surveil Dr. King. And I put it there under the corner of the glass on my desk for a couple of reasons. I slipped it under there because I wanted to remember it, and not as a way of trying to criticize Kennedy or Hoover, but as a way to remind myself, and also because I knew people would find out about this, of the dangers of lack of constraint and oversight. The memo demonstrated, in my view, the danger of the lack of constraint. In Hoover’s memo to Kennedy, there’s no real demonstration of facts. It’s five sentences long. There’s no time constraint. There’s no involvement of courts whatsoever. There’s no oversight at all. It’s just J. Edgar Hoover saying, I think this guy’s a bad guy. And Kennedy saying, go. And that led to all kinds of abuses, including the FBI, Hoover’s people trying to convince Dr. King through an anonymous letter to kill himself, else the FBI would reveal damaging things about him obtained in electronic surveillance. And so, it was there as a message to myself and to the organization. The lesson of this organization is we need to be constrained and checked and overseen, in a good way, because we make mistakes, because we fall in love with our own view of the facts, as all humans do. And so, I did that, as you can tell in a very calculated way. It was good for me, but I thought it’d be good for the whole organization. And then I ordered the creation of a curriculum, for all of our new people would study at Quantico the history of our interaction with Dr. King. And they’d have a final paper due in that in that class, which was the most popular at our training academy, where they had to come to Washington, visit the King Memorial on the banks of the Potomac Basin, look at the 16 quotations that are etched into stone, on either side of the gigantic stone of Hope, and pick one of those quotations from Dr. King and write an essay about how that’s consistent with the FBI’s values. The cool thing about it was, we’re not going to tell you what to think, but we’re going to tell you two things must be true. You must know the history of our interaction with Dr. King. And second, you must think about it through the lens of our values. And we were able, through that kind of training, to drive a conversation that was real and deep in the FBI, and that I think was also attractive to people who might join the organization. So that a Black applicant could look at this institution and say, you know what? They’re being honest about this. They’re confronting this. And they’re insisting that their people know it the way that I and so many other Black Americans know that history. And that’s the right thing to do, obviously, most importantly. But secondly, it’s an important part of attracting talent to the organization. And I can remember getting slightly hostile communications from some of our alums. I got some mail saying, why are you attacking this institution? And my answer was, I’m not attacking this institution. I want this institution to remember its history so that it always gets better. And we can’t get better in this area without acknowledging where we’ve fallen short.

Alex Lovit [00:12:56] As you’re saying there, it was important for the FBI to reckon with its own past and to learn its own past. But for a lot of Black American communities, they didn’t need a curriculum to be aware of that dark history and other moments of broken trust between law enforcement and Black Americans. You’ve long recognized a problem of broken trust between many Black American communities and police and law enforcement. How should officials in law enforcement and the justice system be thinking about this problem and how to solve it?

James Comey [00:13:28] First, by making sure it’s front and center at all times in a law enforcement organization. Because we are a country that brutalized Black people for centuries. Obviously in explicit ways through the institution of slavery, but then in Jim Crow and a whole bunch of other more subtle ways of oppressing a group that we had othered because we needed to do that to deal with our cognitive dissonance over the way we had long treated Black people in this country. And so, one of the main enforcers of the status quo, a status quo that was brutal to Black people for many, many, many years was law enforcement. And so, there’s really good reason that there’s estrangement between Black Americans and both the uniform law enforcement and investigative agencies like the FBI, because of the way we’ve treated them and their parents and their grandparents and their great-grandparents and their great-great-grandparents. And starting by knowing that is the truth about America is essential to being an effective leader. And then the question is, so how do I address that estrangement? How do I move those lines? I imagine them as parallel lines, law enforcement, especially uniform law enforcement, and especially Black Americans. I see them as parallel lines that that maybe won’t ever join together, but the mission for a law enforcement leader is how do I arc the lines closer towards each other? And there’s lots of ways to do that. But the most important is by acknowledging the history and being up close and transparent with the communities you’re trying to serve. Show them your work. Show them your heart. When you make a mistake, show it and admit it. When you didn’t make a mistake, show that too and insist that people see the facts. And so, it’s a big, big challenge, but law enforcement leaders, the best ones in this country, get that. And there’s never a day that goes by that they’re not thinking about ways in which they can bring those lines closer together.

Alex Lovit [00:15:35] We’ve been talking about your work at the FBI, and some of the ways that you sought to influence the culture and the focus of that organization. But your time as FBI director was cut short by Donald Trump. I think it’s fair to say you’re not a fan of his. You’ve said that he represents a serious threat to the rule of law in this country. You weren’t the only person to make an analogy between Trump’s behavior and organized crime, but you were among the first to draw that comparison. And you’re also unique in having direct experience with the Mafia as a prosecutor and direct experience of Donald Trump serving under him as director of the FBI. Can you elaborate on the parallels you see between Trump’s behavior and organized crime?

James Comey [00:16:13] I was struck by at the first meeting I had with former President Trump, and it was the first week of January. He wasn’t even president yet. He was president elect of 2017. And President Obama sent me and three other leaders of intelligence agencies up to brief him, the president elect, on the findings of the intelligence community’s analysis of Russian interference in the election. And that was never going to be a great meeting, because obviously the finding was that the Russians worked hard to get Donald Trump elected president. But President Obama thought it was important—the man is going to be president, so go tell him what you have found and give them the wise. And in that meeting, which was complicated for that and other reasons, I didn’t have to do much speaking because the director of National intelligence, then Jim Clapper, was going to do the briefing, which was fine by me. And so, I got to sort of listen and watch. And the mob popped into my head as I listened to Donald Trump. I watched his interaction with his staff, the people who were going to be the leaders in his administration. This image of a Cosa Nostra boss kept popping into my head, and I kept pushing it away, thinking, oh, that’s a little bit hysterical. That’s dramatic. Why are you doing that? And so, I pushed it away, pushed it away. And the more I came to interact him, the more I came to see that there was a reason it was popping up in my head. He spoke in the way a Cosa Nostra boss did with the sort of the indirect threats. The, that’s a nice jewelry store you have there be shame if something happened to it, kind of way of speaking. But he also created an environment that my brain was picking up on very, very early of absolute loyalty. In a Cosa Nostra family, the boss is at the absolute center. It’s all about, from the boss’s perspective, what can you do for me? Nothing comes back. There’s no effort to build any kind of team in the sense we would think of it in a normal institution. And I kept being struck by that with Donald Trump. Of course, it ended up that month of January, I ended up with him explicitly asking me for a promise of loyalty. But I was getting that vibe before then. Even with hindsight, I think it was a read that was accurate.

Alex Lovit [00:18:36] Another parallel between Donald Trump and the Mafia is that he finds himself charged in a RICO case in Georgia, a law that was originally intended to enable prosecutions of the Mafia. Can you explain to our listeners a little bit about what RICO is and how it differs from other laws?

James Comey [00:18:52] RICO is an acronym for Racketeer Influenced and Corrupt Organizations, and it was an act passed by Congress 30-40 years ago to allow the federal prosecutors and the FBI to deal with a particular challenge in putting together a case against the Cosa Nostra family. Because they’re involved in so many different, maybe separate, or apparently separate pieces of criminal activity—they’re engaged in loan sharking, gambling and drug running, and murder for hire, and bribery, and union corruption—that it could be difficult in a single prosecution to show a jury the full picture. And so, what the RICO statute did was create a law that said it’s a separate crime to operate an enterprise that engages in disparate criminal activity, and you can charge it all in one case and then show it all to the jury. So, the jury gets a complete picture, almost from the boss’s perspective, of everything Cosa Nostra was doing. And then the real power of RICO was it also brought with it really strong forfeiture provisions that allowed and strong, strong sentences that allowed the federal government to seize money from and real estate and vehicles and all kinds of things from mobsters. And so, RICO’s power is showing a full picture to a jury. I’m no expert in the Georgia statute, but I gather that Georgia, some years after the feds adopted a similar type of provision that allows the prosecutor, in this case in Atlanta, to bring together into a single charge lots of different activities that were all connected to the same goal, which was keeping Donald Trump in office. And so that would allow the prosecutor to charge and to show a jury not just what happened in Atlanta or in Georgia, but what happened in different parts of the country as part of an overarching enterprise whose goal was to keep Donald Trump in office unlawfully.

Alex Lovit [00:20:51] Based on recent polling. Trump appears to be very likely to be the Republican nominee for president in 2024. But he also finds himself facing a number of legal challenges right now. In addition to the RICO case in Georgia we were just discussing, he faces criminal charges for falsifying business records in New York, and two separate federal criminal indictments for election interference and for improper retention of government records. He also faces ongoing civil litigation related to E. Jean Carroll, where a jury has already found him liable for sexual abuse and defamation, and another civil case related to fraud in the Trump Organization. So that’s a lot to keep track of. Do you have any thoughts on which of these cases are the strongest or what listeners should be paying attention to?

James Comey [00:21:34] I do. I think the strongest criminal case by far, is the case in Florida that charges Donald Trump in connection with his unlawful retention of highly classified documents because it has no fuzz on it. The documents are in his shower or is bathroom or whatever, and there’s no plausible defense to that. And so, I think that’s the most straightforward case. The strongest case. And then, obviously I could handicap beyond that, but I think that one stands out to me as the strongest case. That one’s likely to be tried after the case against him that’s in federal court in Washington for his conduct in connection with the effort to stay in office after the 2020 election. That, I would say, is probably the second strongest case because Jack Smith, the special counsel, did a very smart thing and focused it. He has a single defendant who is Donald Trump and a theory that is not overarching, it’s fairly narrow. It’s a theory based on false statements by the president in an effort to defraud the United States. Basically, lie to the entire country in an effort to stay in office. So, I would say that’s his second strongest case, but I don’t think it’s as strong as the document case. I think there’s risk around that second case that a jury might struggle to unanimously agree that he had the adequate criminal intent, which a prosecutor has to prove beyond a reasonable doubt, that Donald Trump knew he was doing something that was contrary to law. Doesn’t matter what statute, but you have to prove, which is important, that a defendant knew he was doing stuff that was unlawful. And the trick there, I think, for the prosecutors will be—there were plenty of people told Donald Trump he lost the election, but there were also people around him at that time who were telling him lies about the election. So, he’ll be able to point to those lies and say, I believed it. I didn’t act with criminal intent. I thought that I had been defrauded, and that’s why I took these steps. That’s what makes the election case more complicated. As I said, the reason I say no fuzz on that case is there’s no claim that passes the laugh test that he didn’t understand that it was unlawful to take our most highly classified secrets and keep them in your shower.

Alex Lovit [00:23:53] You’ve just mentioned Jack Smith, the special counsel who’s charged Trump in both of these cases, both of the federal cases. You’ve run in similar circles. I don’t know if you have a personal relationship with Mr. Smith, but you have had a similar role of being in a high-profile hot seat, trying to make decisions about criminal investigations involving presidential candidates. What do you think is going through Jack Smith’s mind right now, as he’s trying to balance the needs of the criminal justice system against trying to get too involved in influencing the election result?

James Comey [00:24:24] Yeah, I don’t know him. Never met him, never spoken to him. But he has a wonderful reputation. He’s probably thinking, why didn’t my family and I stay in the Hague, where he had a job working at the International Criminal Court. And I say that only half kiddingly because he’s had to deal with all manner of threats. Threats of violence directed at himself and his family and his team. It’s a very, very difficult assignment. I’m sure that he is keen—again, I have no insight into this as an insider, just following it in the media—he is keen to do these cases as quickly as possible and as well as possible, and with as much transparency as possible. Take the case in Florida. That is an indictment that tells you all of the proof in the case. It’s what we called in the business a speaking indictment. He chose to speak through that indictment with pictures and descriptions and quotes from text to lay the whole story out, so the American people could see it and evaluate. Is this a political hit job? Or is this something that is driven by facts and the law? And there’s no serious people who would read that indictment and think it was a political hit job. The facts are there, which is why it’s the most dangerous case for Donald Trump. And he’s moved quickly. He was appointed, in my view, if he were going to appoint a special counsel, it should have been much earlier than that. But once he was appointed, he moved, he moved, he moved. And he brought, I think in nine months, the case based on the election lies and brought it in a narrow, tailored way, again in a speaking indictment, laying it all out and brought it without the complication of lots of other defendants. So, again, I see him, as someone who’s been in that position, I see him working to show transparency and to do things as quickly as possible to get out of the way of the election season. Now, of course, that’s not possible because the trials have been set for the spring of 2024. So, he’s not out of it. But I can see him hurrying to try and get as close to out of it before the end of summer of 2024 as possible.

Alex Lovit [00:26:25] In your 2021 book Saving Justice, you expressed admiration for your predecessor in the role of director of the FBI, Robert Mueller. You also praised the report that he wrote as a special counsel investigating potential coordination between the Trump campaign and the Russian government during the 2016 election. But you do have some criticism for the form that he chose to communicate those findings to the public. You write, “Few people read the 448-page report with 2,375 footnotes. Americans no longer get their information that way, if ever they did. They get their information in smaller packages from sound bites, pithy excerpts, and tweets.” And I wonder if you could talk about the importance of the form, not just the content of what is communicated to the public, but the form that that should take in order for the public to understand.

James Comey [00:27:15] As a leader of a justice institution, it’s not enough that you embrace the principle of transparency. You have to think about, how do I get what I know about this institution into the heads of the people whose trust and confidence is the lifeblood of this institution. And so, if they’re all French speakers, you wouldn’t communicate to them in English. If they’re all people without television sets, you wouldn’t rely on television communication. You would think about how they get their information. And maybe that depresses you. Maybe you’re an old school person who thinks we ought to rely on briefs and memos or read statements on television, but we don’t live in that world anymore. And so, if you’re going to maintain trust and confidence, you have to figure out how do the folks, whose confidence I need, get their information? I was deeply frustrated by the Department of Justice’s silence in the days after a court authorized search warrant was executed at Mar-a-Lago in connection with the investigation into mishandling of classified information by the former president. And it wasn’t just the silence for several days while lies filled the air and filled, or buzzed in our devices and our pockets. But it was then the way in which the Department of Justice finally chose to address those falsehoods. By a really good man, the Attorney General of the United States read a statement. Standing at a podium. And that is not the way in which Americans, most of them, get their information these days. And so, the silence plus the form of the communication was inconsistent with the goal, which is to equip the American people to know what’s going on. And by knowing what’s going on, to have faith that it’s being done in a good way. So, the details, the techniques of communication matter. Although as lawyers, we always think those kinds of things are beneath us. They’re not beneath us because we will have failed if we don’t communicate in a way that achieves the goal.

Alex Lovit [00:29:11] You previously mentioned the Mar-a-Lago documents case that one of the cases Trump is charged in, which you say is the strongest in his defenses don’t pass the laugh test, as you said. But there is a bit of an inherent tension in the concept of government secrets at all. You know, on the one hand, democratic governments should be transparent and accountable to citizens. And on the other hand, sometimes there’s legitimate reasons to keep secrets like you have a nuclear weapon. How does classification of government documents function? And how can the public trust that information is being kept secret because of legitimate security concerns, and not just because it might be politically damaging?

James Comey [00:29:48] The same thing is true of the classification process as is true of the criminal justice system. It’s operated by people. And so it’s flawed in all the ways that people are because at the heart of the system is asking someone to go through a process of deciding, so what is the damage that would flow to our country if what I’m about to write about or what I’m about to talk about gets out publicly? That’s how the system defines top secret, secret and confidential information. Secret information is information that, if it were released, would cause serious damage to the national security of the United States. Top secret information is information that’s defined as, if it got out, this is information that would cause exceptionally grave damage to the security of the United States. So those are interesting words, but at bottom they require someone to make a judgment about, so how important is this stuff I’m talking about? Well, you can see how the system is set up to ratchet up. First of all, because I think I’m an important person. If I’m talking about it, it must be something is really, really important. So, there’s a tendency for people because of their own egos to move what they’re writing about or talking about into higher classification categories. And then think about, how do you get in trouble? Almost nobody gets in trouble in the federal government for over classifying something. Where people get in trouble is if they screwed up and failed to protect a secret, and it got out, and it’s in the newspaper, and then there’s a hearing, and you and your family get in all kinds of problems because you didn’t adequately protect the secrets of the United States. So, you can see that human nature is going to lead to a ratcheting up to over classify. And so, I saw that. I was a consumer of classified information every day in my job as FBI director, and before that as deputy attorney general in the George W. Bush administration. So, I’ve seen that an awful lot. And so, you have to ask, so how does it work? And first thing you know is it’s run by people. People are going to over classify information. And so there ought to be systems in place to try and combat that. And there are a variety of them that I bore you with. But it has to be the case that we’re able to protect secrets. I mean forget about national security, there’s a reason that grand juries investigate in secret because if you don’t, you’re going to smear innocent people and you’re going to let really bad people, in some cases, know that you’re looking at them. And that will have all kinds of knock-on consequences for communities and witnesses and very vulnerable people. And so, there’s a reason you keep things secret in the criminal justice system. And there’s a reason at the national level you protect where our troops are. Where we have spies embedded. What we’ve learned about the intentions of an adversary. The techniques we’re using to keep track of the Russians or the Chinese. I hope all people could see why we need to keep those things protected. Why there are things that the government does—let’s say I’m seeking electronic surveillance of a Russian spy in the United States. It’s really important that that not be done in open court. So there have to be secret courts that allow us to obtain that kind of authority but check our use of our powers while not giving away to the Russians what we’re doing. And so those things are all struck through law and oversight and inspection. Imperfectly, because, again, the nature of people. But there has to be a secret system. It has to be overseen in a good way. And we have to approach it with skepticism, knowing how people are.

Alex Lovit [00:33:14] On the subject of government secrets, in your professional career you’ve often had access to classified information, including at times not being able to talk to your own family about central aspects of your own work. Can you talk a little bit about the personal experience of maintaining secrecy? Is it a psychological burden?

James Comey [00:33:32] It is a burden because it’s important both to your marriage and to your own mental health to be able to talk to your life partner about the hardest things you’re dealing with at work. And to say, hey you wouldn’t believe the day I had today, the stuff they’re doing, it’s unbelievable. Here’s the fight I’m having. Well, when the fight is about classified activities, you can’t talk to your spouse, to your significant other about those things. And that’s hard because there’s not the stress relief that you get from those conversations and the guidance you get from conversations about the person you’ve chosen to spend your life with, get their guidance about the most important things in life. So sure, there’s a burden to that. But it’s one that you recognize. I mean, it’s just drilled into you when you join the government that you can’t talk about things that are classified except with those who have a legitimate need to know and the appropriate clearance for the information you’re about to discuss. But it does weird things to your brain because every conversation you have, you have to ask yourself, is what I’m about to talk about classified? And if it is in any respect, can I talk about it here? There was a lot of controversy around our investigation of former Secretary Clinton’s use of an unclassified email system to discuss classified topics. The essence of that case was about the here. She could talk about classified stuff with the folks that she was communicating with on email. It just had to be done on an email system that was consistent with the information they were discussing. It had to be on a system that was approved for top secret communications, which would mean not connected the internet, all kinds of other stuff. The problem in that case was she was talking about things on a regular email system. It didn’t matter that it was her personal email system. Could have been Gmail, anything. It was about, did she talk about stuff in an environment that you’re not allowed to? And did she know that that was something you shouldn’t be doing? And so, as a government official, you have to constantly be asking, can I talk about this with this person? And if I’m talking about it, should it be done here? And can I use this phone for this? Can I use this email for this? But again, it becomes second nature. I guess it makes you a weird person, but it becomes second nature to police yourself in that way. That the other challenge of it is it’s lifelong your obligation to protect classified information. And so, I’ll still have situations where my spouse will ask me about something and part of the answer would be, is in a classified box. So, I can’t talk about it. So, I still have to engage in that activity in my head of segregating and keeping out of conversations the stuff that has to stay in the box.

Alex Lovit [00:36:08] Your book Saving Justice was published in early January 2021, which was after Biden’s victory in the 2020 election but before he took office. And you end that book with some advice to his new attorney general, which at that time you didn’t know who it was going to be. Of course, it ended up being Merrick Garland. You say that that attorney general must be someone the American people, no matter how they voted, see as above the partisan and committed to apolitical justice. How do you think Garland has done in terms of restoring faith in the judicial system and navigating these divisions between the justice system and electoral politics?

James Comey [00:36:44] I think he’s done very well in an incredibly difficult environment. There are things that I—again, it’s always, I know this from having been in government, it’s easy for people on podcasts to throw rocks at people in government—there are parts of the way he’s approached the job that I would have, and I did in the book Saving Justice, urge him to approach differently. I wish he were more transparent. I wish he were communicating with the American people in the way in which they today receive their information. I wish he were better known by ordinary Americans. And there’s lots of ways to do that. But those are marginal things, important but marginal things. In the main, I think he has acted as attorney general exactly the way he should have. I’ll throw one other rock—if they were going to appoint a special counsel on Donald Trump, it should have happened much, much earlier than it did. It’s written in many courthouses, justice delayed is justice denied. I don’t think justice has been denied here, but the efforts of justice were hurt by that delay. And now it’s given Jack Smith the burden of prosecuting cases, especially this Mar-a-Lago case, which just had to be prosecuted in an election year, which is less than ideal. But I think in the main, he has been the kind of person we need. I didn’t know him. Still don’t know him. But what I’ve seen is he is the kind of person we need as Attorney general. And I just hope in our noisy, busy world, people have taken the time to see that. And I’m sure lots of people have. I wish more of the country could see him and what he represents more clearly.

Alex Lovit [00:38:18] But is your argument that for Garland or Smith, it’s important to not think about whether it benefits Trump politically and to only think about the legal aspects of the case?

James Comey [00:38:30] That’s a really good question. I think for Garland, it’s a legitimate consideration. And I suppose for Smith too because he’s acting in Garland’s stead, given the attorney General’s decision that it required the appointment of a special counsel. It’s always appropriate for a prosecutor to consider the collateral consequences of her actions. We thought about it in deciding whether to indict two parents who were engaged in criminal conduct and taking them to jail would make orphans of their children, in a sense. We thought about it in terms of what impact on particular communities a certain investigator or prosecutor’s strategy would have. We think about it on the national level, right? I was involved in a case where I had to literally go to the White House to explain to the National Security Council why I wanted to accuse the government of Iran of funding an attack on an American airbase in the 1990s. There was important reason for the Justice Department to consider broader effects. In that case, the broader effect would be accusing Iran of killing American soldiers would draw us into the need for responses that have important implications for our national security. So, it’s always appropriate to consider the public interest, the national interest, the community interest. And so, it’s not illegitimate for a prosecutor thinking about whether to charge Donald Trump to think about the implications for the nation. And so, I’m sure, again, I don’t know Jack Smith and I have no insight into his thinking, but I’m sure he thought about, in bringing this case, what are the effects on America in bringing Donald Trump into a courtroom, potentially during an election year in Washington, DC? And is that good or bad for America? And if it’s good in some ways, bad in others, how do I weigh those and how do I net those out? It’s not just about considering the facts of a particular case. You legitimately have to consider the public interest more broadly. And I, I don’t have any insight into how they did that, but I’m sure that they did in deciding whether to bring these cases.

Alex Lovit [00:40:28] One thing that changed after you wrote that book is that the attorney general was named. I believe another thing was that January 6th had not yet happened when you wrote that book. Did January 6th change how you thought about how the justice system should approach the former president?

James Comey [00:40:44] Yes. I finished Saving Justice before the election of 2020. Finished it in October. Then actually had to write two different endings to the book for the publisher. One for Donald Trump was reelected. One if he was defeated. And I had a view of how the Justice Department should approach a lot of the wrongdoing by Donald Trump, that Bob Mueller, for example, the special counsel found. I had a view of how they should approach that that was changed by January the 6th. I was of the view in the fall of 2020 that it was a very close question, but that I thought the best move for our country would be for President Biden to pardon Donald Trump. And for us to make a move to radicalize the Republican Party and such a big part of our country, and help those people escape the fog of lies by marginalizing Donald Trump. Let him go to Mar-a-Lago. Let him stand in his bathrobe on the front lawn, yelling at cars going by. But don’t give him the center stage that a criminal prosecution for obstruction of justice, for example, based on what was found during his presidency, would give him. And then January the 6th happened. And Mar-a-Lago happened. And by his conduct, the documents case, Donald Trump forced the Department of Justice to move to vindicate the rule of law. I can still convince myself that the January 6th case is closer. But the Mar-A-Lago case, as I said earlier, they simply could not not prosecute him for that conduct. It isn’t anywhere close to anything in a case that’s not been prosecuted. And it’s far worse than dozens and dozens and dozens of cases that have been prosecuted, people you never heard of, for storing information in that way. Even when they didn’t obstruct justice and it wasn’t the top level of our information. That’s a case that had to be brought. And Donald Trump left the Justice Department and the justice system no choice.

Alex Lovit [00:42:49] You’ve said that you previously have identified as a Republican, but that in the Trump era, you felt left behind by the party. What would you need to see from the GOP to regain your trust? And what path do you see for the Republican Party to recommit to democracy?

James Comey [00:43:04] The Republican Party has to—it’s a tall order—purge itself of the lies and the liars who tell them about the election, about the Department of Justice, about all manner of things. Look, all politicians lie. But lying has become the central plank of the Republican Party. They didn’t even bother with the platform, as I recall in the 2020 election. It’s about telling a set of falsehoods to the American people. That has to be purged. And as part of that purge, the Republican Party has to commit itself to the idea that character matters. That character is destiny in our leaders. And that the rule of law matters. That there are a set of institutions in this country that are essential to the functioning of the rule of law, including the Department of Justice and the FBI, which is part of the Department of Justice. And that taking a flamethrower to those institutions is not consistent with the values we as a country should hold and that a healthy party, political party should hold. And so, it has to, in short form, it has to escape the cult of the demagogue that now owns the Republican Party. That’s a hard thing to do because escaping the cult requires—people who lead the Republican party don’t, there’s no leaders they follow. And so now, following a group of people who have been defrauded, who have been led to believe a set of things that are simply not true. People getting out of a fog of fraud is a really tall order. I know it from criminal cases, where the victims of frauds would often come to stand up for the defendant at his sentencing, where he himself had admitted that he was a fraudster. What are we, as human beings what’s one of our great weaknesses? Admitting when we’re wrong. What is our greatest weakness? Admitting when we’re wrong and we were fooled by something. Because to admit you’re wrong because you were a fool is to confess something that’s fundamental to your identity. I am a fool. I was a fool. And so, it’s very, very hard for people to do. It’s the reason that so much of the Republican Party these days is taken up with trying to memory hole what happened on January the 6th, because they can’t look at those images and reconcile those with the reality that they’ve embraced as a party. You can’t look at the images of January the 6th in any fair way as a supporter of Donald Trump and not have it whispered to you, you fool. Look what you did to America. Look what your part of. There are people who can look at that and absorb the pain and say, I was wrong and emerge from that fog, but most people can’t do that. And so, it takes time and drifting and story writing to get out from under that kind of fog of lies. And so, it’s going to be a long process for the Republican Party, but it does not deserve the support of the American people until it begins that journey of escaping that fog of lies.

Alex Lovit [00:45:55] Well, Jim Comey, thank you for your public service to this country. And thank you for being willing to join us here on The Context.

James Comey [00:46:03] Oh, it’s my pleasure. Great conversation. Thanks so much for having me.

Alex Lovit [00:46:10] The Context is a production of the Charles F. Kettering Foundation. The opinions expressed on this program do not necessarily reflect the views of the Kettering Foundation, its directors, or its officers. I’m Alex Lovit, a senior program officer and historian with the Foundation. Research assistance provided by Isabel Pergande. Episode production by George Drake Jr. Kettering’s Director of Communications is Melinda Gilmore. To connect with the show, please email the context@kettering.org. To subscribe to Kettering’s e-newsletter, visit kettering.org. If you enjoyed this episode, don’t forget to subscribe, and leave a review or tell a friend about the show. We’ll be back in this feed with more conversations about democracy in a couple of weeks.

Transcripts are created on a rush deadline by a Kettering Foundation contractor and may contain small errors. The authoritative record is the audio recording.