In a confidential draft of a letter that President Trump wrote, firing James Comey as FBI director, the president repeatedly questioned the legitimacy of the FBI’s investigation into Russia’s covert interference in the 2016 presidential election. That the FBI’s inquiry was the president’s main complaint in the original four-page May 2017 draft provides new and previously unreported evidence that Trump’s primary motivation in firing Comey may have been to impede the Russia investigation, a potential obstruction of justice. Although the existence of the draft was first disclosed by The New York Times in the fall of 2017, and it was discussed at some length in the Mueller Report, the text of the letter itself has remained secret; also previously undisclosed is the fact that President Trump so directly linked the firing of Comey to the FBI’s Russia investigation.
In the letter, President Trump railed against the Russia investigation as “fabricated and politically motivated.” He complained about then Deputy FBI Director Andrew McCabe’s involvement in the investigation, claiming bias since McCabe’s wife had run for state office as a Democrat. The letter also expressed frustration that Comey had refused to issue a public statement saying the president was not under investigation. In part because of these things, the draft letter said, morale was at an all-time low at the FBI.
Finally, as I have previously reported, Trump claimed that shortly after he became president, he had told Comey that he was only allowing him to stay on in his job as FBI director on a probationary or trial basis; he had then decided to fire Comey when he failed to improve his performance—a claim that Special Counsel Robert Mueller concluded was likely concocted by Trump. By the time a final version of the letter was made public, the president’s advisers had intervened and the letter was cut from four pages to only five sentences, with all of the president’s aforementioned references to the Russia investigation removed.
These new disclosures of what Trump said in the draft termination letter highlight the central parts played in the affair by then Attorney General Jeff Sessions and then Deputy Attorney General Rod Rosenstein. Even though Trump had provided them copies of the draft letter, the nation’s two top federal law enforcement officials agreed to assist the president in his effort to fire Comey. Notably, Rosenstein has said he had no reason to believe that Trump fired Comey to undercut the FBI’s Russia investigation until after Comey’s firing. The draft letter appears to directly contradict that claim.
Contemporaneous notes made by then White House Counsel Don McGahn and then Deputy White House Counsel Uttam Dhillon indicate that both men had concerns at the time that the president’s firing of his FBI director could be considered an obstruction of justice. According to the Mueller Report: “McGahn and Dhillon said the fact that neither Sessions nor Rosenstein objected to replacing Comey gave them peace of mind that the President’s decision to fire Comey was not an attempt to obstruct justice.”
In a speech he gave on May 16 this year, only days after his resignation from the Justice Department, Rosenstein said: “Nobody said that the removal was intended to influence the course of my Russia investigation. 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.”
But the very first sentence of the draft letter that Rosenstein read says otherwise:
While I greatly appreciate your informing me, on three separate occasions, that I am not under investigation concerning the fabricated and politically-motivated allegations of a Trump-Russia relationship with respect to the 2016 Presidential Election, please be informed that I, along with members of both political parties and, most importantly, the American Public, have lost faith in you as the Director of the FBI and you are hereby terminated. [emphasis added]
That one excerpt was cited in the Mueller Report (Vol. II, p.65), but I was able to review the draft termination letter in its entirety, as well as other still confidential White House records related to the president’s efforts to thwart various investigations into Russia’s interference with the 2016 presidential election. Some of those records aided my reporting for a series of articles I wrote for NYR Daily from July 2018 examining whether President Trump obstructed justice. The records were provided by a former Trump administration official under strict conditions imposed at the time: in some instances I could use information from them without acknowledging having read them, while in other instances I could only paraphrase what they said; these restrictions have eased over time.
Trump made the decision to fire Comey largely on his own on May 5, 2017, according to the Mueller Report (Vol. II, p.64). The president was spending the weekend at his Bedminster, New Jersey, resort. The weather was dreary and it was raining. Over dinner with his son-in-law Jared Kushner, other family members, and his senior adviser Stephen Miller, Trump said he wanted to fire the FBI director. Miller took notes as Trump dictated ideas about what a termination letter might say. Miller’s notes record that Trump dictated a version of the draft letter’s first sentence:
While I greatly appreciate you informing me that I am not under investigation concerning what I have often stated is a fabricated story on a Trump–Russia relationship pertaining to the 2016 presidential election, please be informed that I, and I believe the American public—including Ds and Rs—have lost faith in you as Director of the FBI.
The draft letter that Trump shared, a few days later, with Sessions and Rosenstein and most of the president’s most senior staff began with a sentence virtually identical to this, which is significant because it shows that Trump himself—and not an aide—wanted to make clear that Comey’s firing was related to the FBI’s Russia investigation, which Trump considered illegitimate.
On the morning of May 8, the president convened a meeting in the Oval Office to inform his top advisers that he was going to fire Comey. Aides came and went during the meeting, but all present at one time or another were: Chief of Staff Reince Priebus, Vice-President Mike Pence, Steve Bannon, McGahn, Dhillon, Kushner, and Miller. Trump made clear that his decision was final, three of the president’s top aides told the special counsel. McGahn, in an effort to slow down the process in hopes of changing Trump’s mind, reminded the president that he already had a scheduled meeting later that day with Sessions and Rosenstein—and suggested that the president’s team get the input of the two top Justice officials.
At noon, Sessions and Rosenstein met with McGahn and Dhillon. They hoped the attorney general and deputy attorney general would be allies in a last-ditch effort to stop Comey’s firing: “Everyone except Jared Kushner thought that it wasn’t a good idea,” said one person familiar with the matter. McGahn and Dhillon were thus stunned to find Sessions and Rosenstein enthusiastic about firing Comey.
At five that afternoon, the president met with Sessions, Rosenstein, McGahn, Dhillon, and other members of the president’s senior staff. Trump distributed his draft termination letter to everyone present, including Sessions and Rosenstein. At some point, it was suggested that Sessions and Rosenstein should write their own recommendations that Comey be fired. Both men readily agreed to do so, having read the draft letter and knowing full well that the president wanted to fire Comey primarily because of the Russia investigation (the very first sentence, after all, cited the “fabricated and politically motivated” investigation as the chief reason for firing Comey).
In another previously unreported portion of the letter, the president also bitterly complained about the continual involvement by then FBI Deputy Director Andrew McCabe in overseeing the investigation—and criticized Comey for not removing him. The president protested that McCabe was biased against him and pointed out that McCabe’s wife, Jill, had run as a candidate for the Virginia State Senate as a Democrat. At a series of rallies in the fall of 2017, Trump repeatedly attacked McCabe, claiming without evidence that the fix was in because of McCabe’s supervision of the case. In effect, Trump was saying in the draft letter that he wanted to fire Comey for not firing McCabe. If Trump’s intent in the removal of either was to affect the outcome of the investigation, one or both cases might constitute an obstruction of justice. For reasons that are unclear, the Mueller Report makes no mention of Trump’s complaining about McCabe in the draft letter.
In another portion of the draft, President Trump expressed his frustration that Comey had refused to issue any public statement confirming what Trump said the FBI director had told him privately: that he wasn’t personally under investigation. Worse, from the president’s point of view, at a May 3, 2017, Senate Judiciary Committee hearing, Comey had refused to rule out anyone in the Trump campaign as potentially a target of the criminal investigation, including the president. This was the exact opposite of what Trump had wanted—and expected—Comey to say. Six days later, Trump fired Comey.
In fact, these comments of Comey’s that so enraged the president had been pre-authorized by Rosenstein and other Justice Department officials. While meeting with the president in the Oval Office, together with Sessions and the others on May 6, Rosenstein could have told the president that he, too, was responsible for what Comey had told senators three days earlier. But Rosenstein kept silent.
Six weeks earlier, on March 20, 2017, a second senior Justice Department official, Dana Boente, who was at the time acting attorney general, helped formulate the almost identical congressional testimony for Comey that the FBI director gave to the House Intelligence Committee. As the Mueller Report found (Vol. II, p.52), Boente directed Comey on that occasion, too, not to say whether or not the president was under investigation. This decision, which Comey agreed with, was made by Boente and Rosenstein, according to three former and current federal law enforcement sources. After the president initially called Comey to complain, Comey told Trump that the White House Counsel should talk to Boente instead of him. This was in part because post-Watergate executive branch rules created to assure the apolitical nature of the FBI dictated that a president should only communicate with the FBI about a criminal case through the Department of Justice and, in part, because Boente was in charge of what Comey could tell Congress anyway.
According to the Mueller Report, an increasingly frustrated president directed McGahn to talk to Boente about having either the Justice Department or the FBI make a public statement that Trump was not under investigation. But Boente demurred, saying that he “did not want to order Comey to do it because that action could prompt the appointment of a Special Counsel” (Vol. II, p.59). In fact, it was unlikely that a special counsel would have been appointed for such a reason; the Justice Department could not ask for the appointment of a special counsel for a decision the Department itself had made. Moreover, an FBI director doesn’t make such a decision anyway—that decision is solely made by the Justice Department. But by saying this, Boente redirected the president’s rage away from himself and back to Comey.
Then, for good measure, according to the Mueller Report (Vol. II, p.55), Boente, who is now the FBI’s general counsel, suggested that Comey be fired: “McGahn recalled Boente telling him in calls that day that he did not think it was sustainable for Comey to stay on as FBI director for the next four years, which McGahn said he conveyed to the President.” Boente told the special counsel that he could not recall saying this to McGahn, but did not deny the comments either.
Citing these various matters, the president’s draft termination letter claimed that morale in the FBI was at an all-time low. On the afternoon of May 10, Sarah Sanders, then deputy press secretary, defended the president’s firing of Comey, asserting, “most importantly, the rank and file of the FBI had lost confidence in their director.” When challenged by a reporter about how she knew this to be true, Sanders replied: “Look, we’ve heard from countless members of the FBI that say very different things.” During a briefing for reporters, the following day, on May 11, 2017, Sanders repeated the claim. Michael Shear of The Times questioned whether she had really spoken to “countless” FBI employees: “I mean, really? So are we talking…” Sanders responded: “Between like email, text messages—absolutely.” “Like fifty?” “Yes.” “Sixty, seventy?” “Between, like, email, text messages, absolutely. Yes, We’re not going to get into a numbers game. I mean, I have heard from a large number of individuals that work at the FBI that said that they’re very happy with the president’s decision.”
As has been established, Sanders was lying. The Mueller Report says of this episode (Vol. II, p.72): “Sanders told this Office that her reference to hearing from ‘countless members of the FBI’ was a ‘slip of the tongue.’” Her comments, the report continues, were “made ‘in the heat of the moment’ that was not founded on anything.” The Mueller Report might be mistaken on this point: the false claim that Comey was immensely unpopular among the FBI’s rank and file originated in the president’s draft termination letter, which the president had shared with most of his senior staff.
Rosenstein agreed, just after reading the draft letter, to write his memorandum for the president providing a different and specious rationale for Comey’s termination—severely criticizing the FBI director’s handling of the investigation of Hillary Clinton’s use of a private email server while she was secretary of state. At the time he did so, Rosenstein fully understood that the president’s primary reason for firing Comey was related to the Russia investigation. He also knew from the draft that the president wanted McCabe removed as well. Further, Rosenstein knew that the president wanted to fire Comey for refusing to say Trump wasn’t under investigation even though this was what Rosenstein himself and Boente had instructed Comey to do. Rosenstein also knew that the notion that Comey was only serving as FBI director on a probationary or trial period was an absurd falsehood.
Apparently none of these things caused Rosenstein, a near-thirty-year veteran of the Justice Department, serious concern. His main preoccupation, Rosenstein said in his May 13, 2019, speech, was the near-impossible deadline that the president had set for him to complete his memo. President Trump “told me to deliver a memorandum to the Attorney General… the following morning… I had only a few hours to write my memo.” Rosenstein wrote in the memo he delivered to Trump the morning after the Oval Office meeting that Comey’s actions in the Clinton case made it “unlikely” that the FBI would be able to “regain public and congressional trust” until Comey was removed as FBI director. The memo did not mention the FBI’s Russia investigation at all. For his part, Sessions wrote a letter accompanying Rosenstein’s memo to be sent to the White House: “Based on my evaluation, and for reasons expressed by the Deputy Attorney General,” Session wrote, “… I must recommend that you remove James B. Comey” as FBI director.
Many of the president’s staff were elated with this development. They could now say Comey’s firing was made on the deputy attorney general’s and attorney general’s recommendations—and had nothing to do with Russia. In the White House Counsel’s office, there was simply relief: Annie Donaldson, then chief of staff to McGahn, wrote in her contemporaneous notes, apparently based on what McGahn had told her (and recorded in the Mueller Report, Vol. II, p.68), that it would be better for the White House to offer “no other rationales” for Comey’s firing besides Rosenstein’s memorandum. As for the president’s draft letter firing Comey, the White House Counsel’s office hoped that it would “not [see the] light of day,” wrote Donaldson.
President Trump himself personally devised talking points for the press, falsely asserting that Rosenstein’s recommendation was the main reason that he, Trump, had fired Comey. The president’s men then faithfully adhered to this narrative. On the evening of Comey’s firing, then White House Press Secretary Sean Spicer, when asked who had made the decision to fire Comey, answered: “No one from the White House. That was a DOJ decision.” The following morning, reporters besieged Vice President Pence during a visit to Capitol Hill. Asked if Comey’s firing was related to the Russian probe, Pence said: “Let me be clear with you, that was not what this is about… [T]he President’s decision to accept the recommendation of the deputy attorney general and the attorney general to remove the head of the FBI was based solely and exclusively on his commitment to… ensuring that the FBI has the trust and confidence of the people of this nation.”
Sanders took things even further, telling reporters that Rosenstein had “on his own” decided to review Comey’s performance as FBI director, and then, again, entirely “on his own” expressed his reservations that Comey remain in his job. Watching all of this unfold on the evening of the firing, Rosenstein became distraught. He feared for the reputation he had spent a lifetime building, he later told colleagues. Rosenstein called McGahn and asked the White House to stop spreading the president’s version of Comey’s firing; he suggested to McGahn that he would have to set the record straight himself if the White House did not. Trump called Rosenstein later that same night to pressure the deputy attorney general to hold a news conference to say firing Comey was his idea. Rosenstein refused.
The following day, the president reversed course. In a televised interview with NBC news anchor Lester Holt, Trump said: “[Rosenstein] made a recommendation. But regardless of recommendation, I was going to fire Comey.” Trump added: “And in fact, when I decided to just do it, I said to myself… I said, you know, this Russia thing with Trump and Russia is a made-up story.” The Mueller Report concluded that the president told the truth only because he had little choice (Vol. II, p.77): “Although the President ultimately acknowledged that he was going to fire Comey regardless of the Department of Justice’s recommendations, he did so only after DOJ officials made clear to him that they would resist the White House’s suggestion that they had prompted the process that led to Comey’s termination.”
In the days after Comey’s firing, Rosenstein appeared confused, at times angry, and even erratic, according to at least three people who were around him. In a previously unreported episode, Rosenstein told one long-time Justice official with whom he worked closely that he wondered after he read the draft letter whether it could be crucial evidence in a potential obstruction of justice investigation against the president. Rosenstein told this same official that he was nervous as he considered walking out of the White House with the letter in case he was detected spiriting it away. He also later pondered whether, if he went along with the president’s cover story that Comey was fired on his and Sessions’s recommendation, he himself might have unwittingly acted as an accessory to a presidential obstruction of justice.
The previously undisclosed account that Rosenstein wanted to take the letter from the White House because he was concerned that it was potentially incriminating evidence sharply diverges from his other versions of events surrounding Comey’s firing. Above all, these new developments raise the question of why such an experienced prosecutor went along with enabling Trump to fire the FBI director under pretexts he knew to be false.
Intent is one of the foundational building blocks of any obstruction of justice case a prosecutor considers bringing. In analyzing virtually the very same information that Rosenstein had at the time, the special counsel concluded there was strong evidence that the president had the intent of obstructing justice by firing Comey. In his report, Mueller said:
The President and White House aides initially advanced a pretextual reason to the press and the public for Comey’s termination. In the immediate aftermath of the firing, the President dictated a press statement suggesting that he had acted based on the DOJ recommendations, and White House press officials repeated that story… The initial reliance on a pretextual justification could support an inference that the President had concerns about providing the real reason for the firing. [Vol. II, p.77]
In the days after Comey’s firing, Rosenstein met with McCabe and other DOJ and FBI officials. It was then that Rosenstein volunteered to wear a wire while meeting with the president, and discussed the idea of invoking the twenty-fifth amendment to have the president removed from office. Rosenstein has since explained that if he said any such thing, it was merely sarcasm. What is not in dispute is that at some point Rosenstein gave McCabe a copy of the president’s draft letter firing Comey. The deputy FBI director put the document in his safe, where it remained until he turned it over to the special counsel.