“I Was Always on the Same Team”
Based on Remarks to the Greater Baltimore Committee, May 13, 2019
Thank you, Don. I am grateful for your longstanding support. And I am very happy to be back home in Maryland.
I last spoke to this organization at your annual dinner two years ago, almost to the day. It was a busy time in my life.
A few months before, when I accepted your 2017 dinner invitation, I was still serving as the United States Attorney, while going through the Deputy Attorney General confirmation process, and while helping to recruit the political team to run the Department of Justice along with Attorney General Jeff Sessions. I had little time to focus on the dinner.
My previous meeting with the Greater Baltimore Committee was a discussion with about a dozen people in a small conference room at your Calvert Street headquarters. I expected a similar-size audience at your dinner.
I had left Baltimore for Washington less than three weeks before the event. My days were filled with 12 hours of back-to-back meetings. My nights were occupied with briefing books and other urgent matters.
There was a lot going on at the Department of Justice, but the GBC was an important supporter of my office — now U.S. Attorney Robert Hur’s office — a very important supporter of our efforts to reduce violent crime.
We succeeded in reducing violent crime, and we know that we can do it again if we restore the local, state, and federal coordination that was in place for so many years under accomplished leaders including Gregg Bernstein, who is here tonight.
So given all the support that GBC had provided to me, I tore myself away from my desk and set out to join you for dinner.
Other things were on my mind while I was traveling up I-95 from Washington that evening. The FBI Director had been removed the previous week — you might have heard about that — and I took several phone calls from the car to discuss possible candidates for the job.
When we were about a half hour from Baltimore, my chief of staff asked me, “Do you know how many people are going to be there tonight?” I did not. He said, “There will be one thousand people.”
And I said, “That’s a lot more than I thought.”
He followed up with another question: “Do you know that they are going to give you an award?”
I responded: “In that case, I had better prepare some remarks! We don’t have much time.”
Then my chief of staff said, “The award is for courage in public service.”
I said: “You have got to be kidding.”
It was an awkward time for me to receive such an award. The FBI Director had announced at a public hearing that there was a counterintelligence investigation involving the President’s campaign that might result in criminal charges. Then he was fired abruptly, confusing explanations were provided, and troubling allegations were leaked.
As a result, critics were arguing that the FBI Director’s removal was part of an effort to derail the investigation of Russian efforts to influence the 2016 election.
I was responsible for overseeing that investigation.
I knew from my briefings with the agents and prosecutors that it was a very important investigation. If it was not done correctly, there would always be lingering doubts about the scope of Russian efforts and about the extent of American involvement.
I would never have allowed anyone to interfere with that investigation.
I had worked in the Department of Justice for over a quarter century. Although I was new to the Deputy Attorney General job, I knew how to manage criminal investigations.
The Special Counsel’s report states that the White House Counsel told me on a Monday afternoon that the President had decided to remove the Director. It was news to me. The Attorney General had spoken about replacing the Director before the inauguration, but it did not happen and I was not aware of the recent deliberations discussed in the Special Counsel’s report.
Nobody said that the removal was intended to influence the course of my Russia investigation. I had been on the job for less than two weeks, and I did not discuss the Russia investigation with the Attorney General or any White House official.
Later on Monday, the President showed me a letter detailing the bases for his decision to remove the Director. Then he told me to deliver a memorandum to the Attorney General with my concerns about the Director’s conduct, the following morning. He did not tell me what reasons to put in my memo.
The law does not require any reason for a President to appoint or remove an FBI Director — or any political appointee, for that matter. But obviously I would not have concurred if I thought there was an illegal reason.
The notion that replacing the FBI Director with a new FBI Director would influence the Russia investigation — or any other investigation — never crossed my mind. I would still be overseeing all investigations, and the same career supervisors, agents and prosecutors would still be conducting them.
The Special Counsel’s report states that the President asked me to mention in my memo that the FBI Director had repeatedly told him that he was not under investigation, the same language that ultimately appeared in the President’s public letter.
I did not include it in my memo because (1) I had no personal knowledge of what the Director said; and (2) in any event, it was not relevant to my memo.
I did not dislike the FBI Director. On the contrary, I admired him personally and appreciated some of his accomplishments at the FBI. And I would be the last one to condemn anyone for a judgment call. These jobs are difficult. They require decisions that invite criticism.
But while there are many issues in our line of work in which a range of choices may be reasonable, there are bright lines that should never be crossed.
The clearest mistake was the Director’s decision to hold a press conference about an open case, to reveal his personal recommendation about the case, and to discuss details about the investigation — including derogatory information about a presidential candidate — without the informed consent of the prosecutors and the Attorney General.
The FBI Director then chose to send a letter to the Congress on the eve of the election stating that one of the presidential candidates was under criminal investigation, knowing that the letter would be released immediately to the public — and obviously realizing that it could affect the election — but without securing the Attorney General’s approval.
Those actions were not within the range of reasonable decisions. They were inconsistent with our goal of communicating to all FBI employees that they should respect the role of the Attorney General of the United States; that they should refrain from disclosing information about criminal investigations; that they should avoid disparaging uncharged persons; that prosecutors make the legal decisions; and above all, that they should never take any unnecessary steps that could be perceived to influence an election.
One of the fundamental principles of federal law enforcement is that the agents investigate allegations, while prosecutorial decisions are made by lawyers and their politically accountable Department of Justice supervisors.
The principle is about more than just respect for the chain of command. Deciding what the law means and whether it has been violated is the job of federal prosecutors, not agents. Empowering the FBI Director to set aside both the established approval process and the established confidentiality rules on his own initiative is a really, really big deal.
Using governmental authority in a manner that creates the appearance of influencing an election is serious business. If anybody needs to make that cataclysmic decision, it should be the Attorney General of the United States.
Jamie Gorelick, who served as Democratic Deputy Attorney General under President Clinton, wrote that the FBI Director’s decision to publicly criticize a presidential candidate represented a choice to “restrike the balance between transparency and fairness, departing from the department’s traditions.”
Along with Larry Thompson, the Republican Deputy Attorney General under President George W. Bush, Gorelick said that it was “anthetical to the interests of justice, putting a thumb on the scale of th[e] election and damaging our democracy.”
Eric Holder, President Obama’s Attorney General, said that the decision “broke with … fundamental principles” and “negatively affected public trust in both the Justice Department and the FBI.”
Judge Laurence Silberman, a Republican Deputy Attorney General under President Ford, wrote that the “performance was so inappropriate for an FBI director that I doubt the [FBI] will ever completely recover.”
I agreed. So did most of the Obama U.S. Attorneys. Most of the Bush U.S. Attorneys probably agreed too, along with most current and former prosecutors imbued with the Department’s traditions.
The Inspector General also concluded, in a voluminous report following a lengthy review, that the Director’s “announcement was inconsistent with Department policy and violated long-standing Department practice and protocol by, among other things, criticizing [a presidential candidate’s] uncharged conduct,” and that the Director “usurped the authority of the Attorney General, and inadequately and incompletely described the legal position of Department prosecutors.”
The Inspector General also found that the Director “engaged in ad hoc decisionmaking based on his personal views even if it meant rejecting longstanding Department policy or practice,” and that the claimed need for transparency was “unpersuasive.”
In other words, my brief memo got the principal conclusions exactly right.
Much of the public criticism about the press conference focuses on the question of whether the Director was correct on the merits of the decision not to pursue a prosecution. But for lawyers who understand the principles, that is beside the point. The entire public-relations-driven episode was dramatically wrong, and principled people recognize that without regard to political affiliation.
Moreover, unlike most mistakes made by public officials, it was not the result of a weak moment or a thoughtless remark. It was a deliberate flawed strategy that should never be repeated.
Nonetheless, the Director doubled down in his testimony at a Senate Judiciary Committee hearing on May 3, 2017. In essence, he said that he would do it again if he had the chance, and he maintained that he had a duty to be transparent with the public.
To the contrary, his duty was to maintain confidences and respect the lawful chain of command.
If I had been asked to make a recommendation before the removal decision was made, I would have included a more balanced analysis of the pros and cons of replacing the Director at that time, and included more than just two sentences summarizing his good work. I had only a few hours to write my memo. But my brief memo to the Attorney General is correct, and it was reasonable under the circumstances.
If you remove the partisan context, almost every lawyer agrees with my memo, and so do most politicians of both parties.
But if I had been the decision maker, the removal would have been handled differently, with far more respect and far less drama.
So I do not blame the former Director for being angry. I would be too, if I were in his shoes.
But now the former Director seems to be acting as a partisan pundit, selling books and earning speaking fees while speculating about the strength of my character and the fate of my immortal soul.
I kid you not.
That is disappointing. Speculating about souls is not a job for police and prosecutors. We generally base our opinions on eyewitness testimony.
In any event, I agreed with the acting FBI Director’s testimony that the firing would not impact the investigation. On the other hand, I recognized that the unusual circumstances of the firing and the ensuing developments would give reasonable people on both sides cause to speculate about the credibility of my investigation and the independence of the FBI.
I also knew — based on briefings that I received from agents and prosecutors about evidence that is now publicly known as a result of indictments that we returned, and information in the public report — I knew that there was overwhelming evidence that Russian operatives hacked American computers and defrauded American citizens, and it was part of a comprehensive Russian strategy to influence elections, promote social discord, and undermine America, just as they do in other countries.
And people with connections to the presidential campaign were under FBI investigation regarding their relationships with Russian agents, and some allegedly had made false statements to federal agents.
At the time, these were allegations. They were leads. It is what we call predication. Nobody had been convicted of a crime. Nobody had been charged with a crime.
But based on what I knew in May 2017, the investigation of Russian election interference was justified. Closing it was not an option.
The Department of Justice Inspector General is reviewing aspects of the counterintelligence investigation. Before I left the Department, I participated in ensuring that there would be a full and thorough review.
If the Inspector General finds significant new facts, I would reconsider my opinion. But I always need to base my opinions on credible evidence. That is what makes the Department of Justice special. We review allegations and investigate when warranted, but we do not accuse anyone of wrongdoing unless there is credible evidence to prove it.
The President selected me for the job of Deputy Attorney General, the Senate approved my nomination, and I took an oath to well and faithfully execute the duties of the office. At the Department of Justice, the duties of the office include representing the interests of the entire United States and following the unique rules that govern federal prosecutors.
The oath also requires us to defend the nation against all enemies, foreign and domestic. Sometimes there are literal enemies.
As a leader of the Department of Justice, that oath gave me a legal obligation to make law enforcement decisions without regard to partisan considerations.
I determined that I needed a special counsel to help resolve the election-interference investigation in a way that would best protect America from foreign adversaries and that would best promote public confidence, in the long run.
I knew that some people would not be happy about it. I knew that it would be unpleasant for me and my family.
But at my confirmation hearing, I promised that I would conduct the investigation properly and see it through to the appropriate conclusion.
In my line of work, you keep promises. And in my line of work, the appropriate conclusion is the one that results when you follow the normal process and complete an independent investigation.
You are not out to get anyone. You are just required to follow the facts wherever they lead.
When Bill Barr was Attorney General for 14 months from 1991 to 1993, he appointed three special counsels, in addition to one independent counsel. Attorney General Barr explained that he “just used [his] inherent authority” to appoint special counsels, even though in one case he “could never quite understand what the allegation was.”
There was never any serious question about my legal authority to appoint a special counsel. There was never any ambiguity in the minds of the Special Counsel and his team about their obligation to consult with me and my leadership team in the Department of Justice about the scope of their jurisdiction and to report significant steps in the investigation.
It would be legal to appoint a special counsel with or without the regulation adopted by Attorney General Janet Reno in 1999. It was legal to appoint special counsels before the regulation existed, as Attorney General Barr and others did. In fact, it is legal to appoint a special counsel for any reason, whether there already are ongoing criminal investigations — as in the Russia case — or not. The Attorney General possesses that power under the law.
But as a matter of discretion, we should only appoint special counsels when necessary. U.S. Attorneys, the FBI, and the Inspector General can capably handle almost all cases. I was not a fan of independent counsels, and I disfavor special counsels.
I am glad that I only needed to appoint one in 25 months.
As acting Attorney General, it was my responsibility to make sure that the Department of Justice would conduct an independent investigation; complete it expeditiously; hold perpetrators accountable if warranted; and work with partner agencies to counter foreign agents and deter crimes.
We achieved those goals.
As a result, our nation is safer, elections are more secure, and citizens are better informed about covert foreign influence schemes.
But not everybody was happy with my decision, in case you did not notice.
I think I made the right decision. I respect anybody’s right to disagree, but in fairness, critics should explain what they would have done given the facts we knew at the time, and consider how the ongoing investigations might have proceeded and how long they might have taken.
I made no public statements about any of the allegations beyond what had been disclosed before I took charge of the investigations, unless and until federal charges were filed. Nor did I leak details to the news media or anyone else. Federal investigations are supposed to remain confidential unless there is a legitimate need for publicity. People who are not charged with crimes should not be tainted unnecessarily.
Neither should people who investigate crimes.
I defended the integrity of the election-interference investigation against people who — whether in good faith or bad — tried in various ways to disrupt it, including by spreading false and malicious allegations about me and my colleagues.
And with the support of other intelligence community leaders, I fought to protect the patriotic federal agents, prosecutors, informants, and other sources who keep America safe from foreign adversaries. We need their protection. The 2016 election was just one event. Adversaries are working to undermine America every day, and most people are blissfully unaware of it.
Career federal employees have little ability to defend themselves against public allegations. We should not endorse misconduct claims unless and until the Inspector General, following an objective and nonpartisan investigation, concludes that there is sufficient credible evidence to establish wrongdoing.
Allegations mean nothing without credible evidence. It is easy for politicians, pundits, and celebrities to exploit their media access and publicize hearsay allegations; in fact, the primary definition of “allegation” is a claim of wrongdoing that is unproven.
Even when we return a federal criminal indictment — which requires a determination that there is enough evidence to establish probable cause to believe that a crime occurred, and we are prepared to prove it in court — we still explain that the charges are “only allegations.”
Citizens who devote their careers to public service deserve at least the same benefit of the doubt that we give friends and relatives who do not spend nights and weekends risking their reputations, and sometimes their lives, to protect America.
People spent a lot of time debating whose side I was on, based on who seemed to benefit most from any individual decision. That is because partisans evaluate things in terms of the immediate political impact, and cable TV pundits fill a lot of time by pretending there is always serious breaking news.
But trying to infer partisan affiliation from law enforcement decisions is what you might call a category error. It uses the wrong frame of reference.
Political affiliation may influence law enforcement policy decisions. That is the point of elections.
But when it comes to cases involving foreign interference in elections, as with the tens of thousands of other cases I supervised over the past three decades, I was always on the same team. I was on the American team.
When a case had political significance, I sometimes asked myself: how would I handle this matter if the party affiliations were reversed?
For partisans, the answers frequently are different. For prosecutors, the answers always should be the same.
That is the way I played it in Maryland. And it is the way I played it in Washington, D.C.
My soul and my character are pretty much the same today as they were two years ago. I took a few hits and made some enemies during my time in the arena, but I held my ground and made a lot of friends.
Thanks to them, I think I made the right calls on the things that mattered.
So that is some of what was going on when you gave me that award for courage in government service two years ago. I probably did not deserve it at the time. I do not know whether I earned it since then. But I tried my best.
It is nice to be home.
Thank you very much.