The FRONTLINE Interviews

Mary McCord

Acting Assistant Attorney General, 2016-17

Mary McCord is a visiting professor at Georgetown University Law School and senior litigator from practice at the Institute for Constitutional Advocacy and Protection. She previously served in the Department of Justice as the principal deputy assistant attorney general for national security from 2014 to 2016, and the acting assistant attorney general for national security from 2016 to 2017.

This is the transcript of a two-part interview with FRONTLINE’s Michael Kirk and Jim Gilmore conducted on May 10 and July 13, 2018. It has been edited for clarity and length. An asterisk indicates the start of a new interview.

This interview appears in:

Trump’s Showdown

TOP

Mary McCord

Chapters

Text Interview:

Highlight text to share it

… On Jan. 6, 2017… four of the leaders of the intelligence committees went in and met with Donald Trump, President-elect Donald Trump.Of course, in preparation for this, there had been quite an investigation already underway during the election in 2016.What in your mind are they armed with going in?What are they going in there to do, to deliver to the president-elect?

Just to be clear, I was not part of consulting on what the script would be or everything that would be covered in that meeting.But as I'm sure you're aware, former President Obama had directed the IC to do an investigation of the suspected Russian influence in the campaign, and that investigative report had just been completed, and of course he had been briefed on it by the intelligence community.And because of the fact that we had a president-elect who was due to take office in just a few weeks, the intelligence community felt that they needed to go give a similar briefing to the president-elect.

My understanding is that of course is what the purpose of that meeting was, and that made perfect sense given the time frame and the fact that the conclusions had just been reached.As, of course, we’ve all come to know since then, there was also an opportunity for Director [of the FBI James] Comey to speak to the president-elect about some of the other information that they had acquired, that they thought he should know about.And that included some of the more salacious allegations.

The general delivery of conclusions by [Director of National Intelligence James] Clapper and others, was what?

Well, again, I wasn’t there, so I don’t want to put words in Director Clapper’s mouth, but certainly—and there were varying levels of reports published—there was an unclassified version; there was a classified version.There was an even higher classified version, and then there were pieces that were at an even higher classification.But the general conclusion is there had been a very concerted effort by the Russians to influence the campaign.

Knowing that he’s disparaged the likelihood of this happening over the course of his campaign, doesn't seem to be receptive, is it your guess, assumption, educated guess, that they were hoping that they could, by delivering the information to him, he would finally wise up to the level and the dimension and the power of what had happened over the election time?

I can't get into the heads of what the various people who were involved in that briefing were hoping for.I can say as part of the national security community that I was part of at that time, relatively high level in that community at the Department of Justice and also regularly talking with my counterparts in the intelligence community, law enforcement, White House and other departments and agencies, that I think it's less about hoping to change what one’s personal views might be or what the president-elect’s personal views might be.… The role of the intelligence community is to—this is the president-elect.He needs to be advised of this.It’s serious.There's consensus in the intelligence community about what happened.Not every detail is known.Certainly whether there actually was success in impacting the election is not known, has still never been determined, and they wanted to make that clear.

But I think everyone going into that thought it was important to treat this incoming president like any other incoming president and provide the information that he needed to know for national security purposes.Not necessarily—I mean, whether people thought about changing his mind or not changing his mind I can't say, but it’s important for him to understand this.That certainly would have been what I would have been thinking going into that.

The Steele dossier, what became known as the Steele dossier and circulated among journalists and lots of others certainly during the fall of 2016, I'm sure there were discussions, and you probably had an opinion about whether—it is almost raw intelligence in lots of ways—[whether it] should have also been brought up and brought to the president’s attention, or the president-elect’s attention.Why was it, do you think?

… I wasn’t really familiar with the full dossier at all before, frankly, I read it in BuzzFeed at home one night in January when it went public.I was familiar with certain pieces of information that are included in what later became known as the Steele dossier.I think it’s important to draw distinctions when we're talking about information and what information might have been used for.I do think it’s important to draw a distinction between individual bits of information that ended up included in this dossier and the dossier as a whole, because it covered a broad variety of topics, sources, places, events.At the time of that briefing, I had never seen the full dossier. …

So here you are, sitting there.What are you doing at this time anyway, until you finally leave?To the extent that you can tell us what it was, what was it?

Well, you know, the job of the acting assistant attorney general for national security goes on constantly.It’s about an 18-to-20-hour-a-day job.So we were doing lots and lots of things.You're certainly always monitoring the terrorism threat.We have ongoing prosecutions both in counterterrorism area and nation-state–sponsored cyber area, in export control area, in counterintelligence area.We have FARA [Foreign Agents Registration Act] investigations.We've got our Office of Intelligence that is continuing to do FISA work; that is, work in front of the Foreign Intelligence Surveillance Court in order to use legal authorities provided under the Foreign Intelligence Surveillance Act in order to support the work of the intelligence community.And there's the work of CFIUS, the Committee on Foreign Investment in the United States, reviewing transactions that might result in foreign ownership or control of U.S. businesses or technology.

It’s really a huge job, and I also continued to sit often at White House meetings, either at the deputy’s level or at the counterintelligence steering group level or the next level down from the deputy’s level on an entire variety of national security and foreign policy issues.

I also did a fair bit of speaking at that time on cybersecurity and the need for—really, this is part of an outreach program that we started at DOJ under my predecessor, John Carlin, to make sure that businesses and various sectors of our economy were more familiar with the threat posed by nation-states when it came to cybersecurity, not just criminals but nation-states.By that I'm really talking about North Korea, China, Iran and Russia, predominantly.Every day was a very, very full day.

And the Russia information was part of your brief?

Yes, along with many, many, many other things.There had been a lot of, of course, discussions during the Obama administration coming up to transition about, again, getting an investigation by the IC into what was the extent of the Russian influence, particularly through the cyber-enabled means.And there were a lot of discussions, as you might imagine, about what would be the proper response.Those discussions that were interdepartmental and with the White House and with the intelligence community and with law enforcement ultimately resulted in the package of sanctions and other actions that the former president announced right around New Year’s, which included the expulsion of Russian diplomats and sanctions under actually the cyber executive order that hadn’t been used prior to that, and a package of other types of sanctions.

That had been a topic of discussion that I'd been involved with, along with others, in the previous administration throughout the fall and culminating in those sanctions.And then, of course, in January is also where revelations about Gen. [Michael] Flynn’s conversations with Ambassador [Sergey] Kislyak were identified, became known.So there was that activity in January, and [discussions about] how to handle that also took place.

What was your response in the early going, sometime in the early summer, early fall, about what was being discovered, about the extent to which the Russians had hacked including the [Hillary Clinton campaign chair John] Podesta emails, the WikiLeaks release, all of it?Personally and professionally, what did you think when you learned what you learned about it?

Well, it seemed very scary from a number of different perspectives, right?One is that you recognize the possible vulnerability of our actual election systems.Now, I think that after a few briefings, we—when I say we, I mean the whole sort of community of national security professionals who were looking at these things—felt relatively comfortable, as the Department of Homeland Security has said, that because of the disparity in different election systems in individual states where elections take place, it would be very difficult to successfully sort of hack into the actual ballot-taking systems, the ballot-registering systems in any kind of nationwide, systematic way.That doesn't mean that individual systems in individual jurisdictions might not be vulnerable to Russian hacking, but to do anything on a nationwide basis would be very difficult.

So that was a relief.But more troubling was just what became clear, [which] was a strong intent by the Russians, as well as a capability to influence in other ways.I'll say, at least for me, I don't think the true extent of that became clear, really, frankly even until much, much later; even just this past year, 2017, particularly I think when the extent of the use of the opening of fake Facebook accounts, for example, became more well known than it was back in 2016— Certainly, you know, there was the hacking of the emails and the publication of the emails through the Guccifer 2.0 persona and things like that.But still, the extent of some of what has come out now in the Mueller investigation and some of the charges that have come out I think have really shown the extent to which the Russians went, and there could be more we still don’t know.

Fair to say, shocking, unprecedented, worrisome at some level that apparently a state-sponsored attack like this occurred?

I think not surprising, because we've seen Russia try to meddle in elections of other countries historically.I think what was surprising, frankly, is that it was us, that it was the United States and the extent of the ability to do that.Then what continues to be scary is they're going to keep doing this.So what I don't think has happened effectively in this last year and a half is an adequate response to that, adequate preventive measures.I'm personally not a cyber expert, so I can't say what those are, but it seems like at least publicly, there hasn’t been the type of attention to preventing this in the future that we’d like to see.

Now, I'm certainly cognizant now that I'm in the private sector and no longer privy to the daily intelligence that comes in, that there could be lots of meetings and things going on that the rest of us don’t know about, because there would be a lot of information here that would be relevant to determining preventive measures that would be classified, and appropriately so.I'm hopeful that there is more going on behind the scenes that the American people just aren't seeing because it’s going on behind the scenes.

So the meeting happens.CNN reports the content.BuzzFeed releases the documents.The president calls Comey and berates him and says, “How dare you?You're trying to use leverage on me,” whatever it is.I'm not certain you knew that that had happened.But he then gives a press conference where he’s pretty angry, the president-elect.He calls CNN fake news, and it all starts, sort of, right in there.It’s the early stages of this process.You are the primary representative, for the purposes of this room, of the rule of law.What are your thoughts about from what you could tell by his early reactions here and by the things that subsequently happen over the next, let's say, 27 days or so, about what was about to happen in that dimension?

I'm not sure I had a full appreciation at that earliest stage of how significant the president’s lack of respect for the rule of law would be.He was just transitioning in from a private-sector job running businesses where he, I think, was used to being the boss, and what he said went, and everyone who worked for him or with him had to abide by his wishes.

At least to a certain extent, I maybe took those first rants as just like the things that he was used to doing and maybe, at least I think I was hopeful, that he would, particularly with advisers around him to talk to him about the rule of law, the importance of not interfering with investigations that are undertaken by DOJ or the FBI, the importance of accepting laws not only as citizens but also as part of the government and that the law needs to be transparent in its enactment; it needs to be enforced in a way that's predictable and stable, and there needs to be access to a fair legal system that is not impartial or subject to influence—all those things are things that I think maybe were new concepts to him, and I think it became only clear to me over time as we saw the same behaviors repeating themselves, the same frustration that the president expressed time and again that he didn't have more influence over DOJ and the FBI.

Let's run through a cast of characters just a little bit.You don’t have to go into great detail, but I'd be really interested in your recitation of their resumes for me.Jim Comey?

I interacted with Director Comey a lot, because in national security we met on a regular basis.Really, it started after 9/11 in order to make sure that we were constantly communicating on terrorist threats.But because the attorney general and deputy attorney general and me and the director and his deputy and a few others met regularly, sometimes you talked about issues broader than that.And Director Comey, I always enjoyed working with him.He's very smart.He's almost academic-like in certain environments, and maybe because of his own personal interests and his great love of history, he could sometimes give a historical background to a problem, whether it was a geopolitical problem or a religious conflict or whatever might be in the background of an issue that was pressing that I always found interesting.And I mean that sincerely.I was always like, “Wow, I learned something from that."I think I'll stop there.

When you saw him walk across—I'm sure you saw the videotape; all of us did—walk across that Blue Room when Trump is beckoning him, almost romancing him in some way, the Jim Comey you know, what were you thinking his reaction was to that entreaty?

Well, I mean, it seems like a fairly standard introduction type of meeting, and everyone kind of came across the room to meet him.It was a little weird, the way—it was the sort of odd embrace there.But Director Comey is also very, very tall, so if you're going to try to say anything to him quietly, he's going to have to bend down quite a lot unless you're equally tall, which the president is not.

So I didn't frankly think that much of it.I thought it was just an introduction.I mean, hearing Director Comey talk about it now is more interesting than I think it was at the time.

Tell me about Sally Yates.

Sally’s a really great attorney.We have similar backgrounds in the sense that we spent each more than 20 years as AUSAs [assistant U.S. attorneys] prosecuting all kinds of cases.I think she was incredibly qualified to become the deputy attorney general, I think made some really great policy initiatives, and I enjoyed working with her very much.Very smart and very principled.So I was proud to see that when she believed that she could not in good faith enforce the first travel ban that she refused to do so.

It was also around that same exact time that she and I made our trip over to meet with [White House counsel] Don McGahn to talk to him about Gen. Flynn, so she had a whole lot on her plate in those last couple days before she was fired.But that decision as well to go and talk to the White House counsel and let him know what we had learned was also, I think, a principled decision which I concurred with, and which a very small group at the highest level of DOJ who had discussed it all concurred with.I think it was another testament to her character and her principles.

Let’s talk about that for a second.… There's an intercept; there's been a conversation between Flynn and Kislyak.He’s in the Dominican Republic, Comey and the FBI know.Comey comes to talk, I gather, to you and to her and others, and say, “Here's what we've got."She feels, and you feel, we’ll go up to the White House and lay it out for McGahn because they need to know.This guy is in an important, powerful position.Is that about right?

I don’t want to get into who came to who and told who what.We have different lines of communication with the bureau, but you're correct that it became known at high levels of DOJ that these intercepts existed.In pretty short order—well, I guess a couple of things happened.First, it presents a counterintelligence concern, because this is the incoming national security adviser, because of course at the time it became known, it was pre-transition.

Alarm bells went off a little bit more clearly after incoming Vice President [Mike] Pence went on Face the Nation and said that he had talked with Gen. Flynn, and Gen. Flynn had assured him that he had not had any discussions with the ambassador about the expulsion of Russian diplomats.That caused red flags to go and alarm bells to go off, because we knew that not to be true.And if we knew that not to be true, we knew the Russians knew that not to be true.

Suddenly we were in a situation where it’s not just about the incoming national security adviser appearing to have lied to the incoming vice president, but we're in a situation where there's the potential for compromise, because the Russians know that the vice president has now said something untrue and that he appeared to have gotten that information from Gen. Flynn.

The two FBI agents go up and interview him there, and he doesn't tell them the truth.How important was that?

How important was the interview, or how important was his failure to tell the truth?

Well, what he said, yeah.

Well, as we know now, it's been the basis for a criminal charge and a guilty plea by Gen. Flynn.In terms of the concerns that we had at Justice and the need to advise someone at the White House about that, I think we would have felt the need to do that either way, because what happened there is interesting.It formed the base for criminal charges thereafter, but it didn't change the fact of what had happened and what caused the concerns, if that makes sense. …

Who is McGahn?

You know, I didn't know him before the day I met him on Jan. 27—or 26.I guess we went back on the 27th.I had only googled him and read about him.I think that, you know, for a person who had been in the office for six days, it was surprising information to learn and just took a little bit of time to process.

… Something else happens on the 27th, which is dinner for two.Comey and the president meet.The president asks him for loyalty.What position does that put the director of the Federal Bureau of Investigation in when a president asks that?

Well, I think Director Comey has addressed that extensively, and, at least by the facts that he’s given of that meeting, I think he answered that appropriately.You can't give loyalty to a person.That's not what holding that job as the director of the FBI is about.It’s not about loyalty to the president.

When you hear about that, what do you think?What do you think Trump means by that?What are the implications of that?

Well, I think it’s of a piece of this lack of understanding or respect for the rule of law, this confusion of what rule of law means.A lot of people throw that term around, that phrase around, and I just am not sure that the president really appreciated what that meant.I think he felt coming into the White House that he held the executive authority and the executive power and that everyone should bend toward that and that it was appropriate to ask for loyalty.And it’s not.

Were you surprised that it took 18 days to fire Flynn?

Yes and no.So very little anymore surprises me with this president.I think I've, like, maxed out my ability to be surprised.It would almost be more surprising now if something went along a course that I would have thought would be a more appropriate course that other presidents have done in the past.Then I think that's where I would be surprised.But at the time, yes and no.When Sally Yates and I went to the White House, as Sally has testified, we did not ask for anything; we did not presuppose any particular use of the information, nor did we put any restrictions on the use of the information.We explained why we were sharing it and that they should do what they felt was appropriate.

I think certainly personally I felt that that this created a very compromising situation for the general, and he was not going to be a good person to be in the position of national security adviser, and [I] hoped that the proper people within the White House would also come to that conclusion.I think it would have been more sensible to come to that conclusion a little bit more quickly.But I don't know what steps were taking place that caused it to take the amount of time that it did.

I will say it seemed to me the ultimate firing, if you want to call it that—that's a little ambiguous, whether it was a firing or a resignation—but [it] didn’t take place until after The Washington Post broke a story that had more details about the discussions.I do sometimes wonder if that story hadn’t broken, whether it would have taken even longer.

Acting Attorney General Yates is fired.How was the firing delivered?Were you around when it happened?Did you witness any of it?

I guess I probably was in the office when it happened, but I didn't actually know about it until I was actually driving home from work that Monday, and I think it was like 7:30 or 8:00 or something, and I remember hearing it on NPR. And then, of course, she was all over TV all night.

What did you think?

Well, I thought, good for her for that principled position.I also didn’t think it was a good executive order that should have ever happened.I didn't think it was good policy and had questions about its legality.So I applauded her courage in saying she wasn't going to be able to enforce it.I mean, there's another way she could have done it.She could have gone down to the White House and said, “I can't enforce this,” and resigned.I think she's talked about this.She had a choice of resigning or being fired, and I don’t have any opinion one way or the other which was better.But she believed strongly that it was of questionable constitutionality and certainly bad policy, and she did what she needed to do.

The implications for the Justice Department, the people who work there, the Federal Bureau of Investigation, places that the rule of law is kept in a lockbox somewhere?

I think that was probably the beginning of the realization for people within DOJ that things were going to be a little bit different; [that] we career people maybe weren't going to be consulted about major legal and policy decisions that would have wide-ranging implications for the American people, but also for the Justice Department, and that that's worrisome.Career people spend their jobs in public service because they feel a commitment to public service, and they develop expertise that they hope to be able to share with policymakers and appointed officials who come and go, even when the career people stay.

To basically not just be ignored, but never even have a chance to express your views, sends a signal that this is going to be a very different administration.And certainly we've seen that there have been people that have left the department, as well as other departments, I think at least in part for those reasons.

After Flynn is fired, he, the president, is extremely unhappy.There's a press conference.He also keeps the director in the Oval Office, [Attorney General Jeff] Sessions leaves, and he says, basically says: “Can you go easy on Mike Flynn?He's a good guy."Your thoughts about that?

Again, this is something I only learned about later, certainly had no knowledge of this at the time, and that's really in direct contravention of policies that have been in place ever since Watergate to not have that type of interference by the White House in investigations undertaken by the department or the bureau.

There's really good reasons for that.It’s important; it’s critical.In fact, what we call the White House contacts policy at DOJ, at least under the Obama administration, under [then-Attorney General] Eric Holder’s name, begins with recounting the fact that the rule of law depends on the fair administration of justice without partisan influence or improper influence.

So that type—and like I said, there's been different iterations, but it goes back many decades, and there's usually a policy that comes out of DOJ and a policy that comes out of the White House, is that there's communications between DOJ and the White House on policies and a variety of issues but not on individual criminal investigations, except at only the very highest levels and only with permission.

When I say permission, I mean if there's going to be any communication, it’s only supposed to be with the deputy attorney general or the attorney general and no one else lower than that in the department, unless there's been permission granted to have conversations, and then that would only be because there's something about the president’s ability to exercise his functions, take care that the laws be faithfully executed, that requires some sharing of information.

Now, there are exceptions to the White House contacts policy for matters of national security, not for muddling about in an actual individual investigation that might become a criminal case, but for sharing counterintelligence and counterespionage information, because obviously, for national security purposes, that might be something that would be important to share.I mean, if there's about to be a capture operation of a terrorist, for example— let’s not call it a capture operation, because that's involving DOD; clearly the White House would be involved.But let's assume we're about to make an arrest here in the United States.FBI's about to make an arrest of someone who might have been plotting some sort of terrorist act.That would be an appropriate thing to kind of give that heads-up to the White House: “Hey, you don’t want to hear this on CNN. You should know that this is coming."But getting involved in the actual who will be prosecuted, what will the charges be, what investigative steps will be taken, what cases will be ended, what cases will be started, that's just off-limits, and it’s off-limits for very good reasons.So that it [goes] again back to the rule of law, so that there is accountability, so that there's predictability, stability, and that there's not an appearance of uneven administration of justice.

Comey comes back from that meeting, says to Sessions—first, before I say this, who is Sessions?What's your 25-cent description of Jeff Sessions?

Jeff Sessions is a person who spent a very, very long time in Congress, has very strong views, intended to bring those views into the Department of Justice and effect policy changes that would comport with those views, and particularly on issues of immigration and sentencing and things like that.What AG Sessions does not have a lot of experience in is, you know, being a Department of Justice attorney.He was a U.S. attorney decades and decades ago.A lot of things changed over the course of those decades, and importantly, over the course of those decades, he was in an elected official legislative position, not an executive branch position in the Department of Justice, whose mission is very different.

I'm not sure that was the best preparation for the job.I think that he has endeavored to learn and recognizes that there is a lot to learn.But I also have concerns that some of those policy choices that he has his mind set on based on many decades of being a senator, you know, it's hard to kind of come off of those even if you are hearing other sides of things and other approaches.I just hope that he will listen to career people when he is thinking about a whole variety of policy and legal issues.

The president said: “I want a Bobby Kennedy.I want somebody who’s got my back, who does my—loyalty in the first person."Did he get that with Jeff Sessions?

Well, he’s pretty unhappy, it sounds like, with Jeff Sessions, for recusing.I credit the attorney general for taking the advice of those around him who recommended that he recuse.He had been part of the president’s foreign policy team during the campaign and during the period of time that the Russian influence campaign was being undertaken, so it was appropriate for him to recuse, and I think … the appearance of impropriety, if not the reality, is something that was really important to avoid.And I can't say sitting here whether he had a true actual conflict, but that appearance of having been part of that team when there's investigation going into what extent did the president’s own campaign advisers, other advisers, know about and participate in any of these Russian efforts, while that's going on, it can't—it would have sent a very bad signal to have AG Sessions be in charge of that investigation.

He's writing this all down.Surprise you?I mean, you know Comey.

Not really.It’s not like I expected that he would do that, but I'm not surprised having learned that he did that.It was probably a smart thing to do, particularly if you don’t have—I'm going to use the term “witness”—another witness, because you know at some point it might be he said/he said.

This is the moment where suddenly, I think, Trump realizes you’ve either got to clear me, or this cloud—I can't take this anymore.This is crazy.He calls it the Russian cloud and says it’s occupying—“It’s overwhelming me."What would the argument be for not clearing, not saying to the public, “There's not an investigation of the president of the United States”?

Well, investigations are often done covertly for a long period of time for a whole variety of reasons, one, to preserve the opportunities for taking different investigative steps that might otherwise not be available if things are more overt.And clearly—and that's in any investigation.And when you're actually talking about such a sensitive investigation like this, then elevate all of those concerns by many, many fold.I think there's also a concern that what we've seen happen is exactly what would happen, is it becomes sort of what the media and Congress and everyone obsesses on, and it's really been an obsession every since, really daily in the news even when there's a lot of other important things going on.

But at some point, there's enough—at this point, as I recall, if I'm recalling correctly, there was already an awful lot that was coming out on a pretty much daily basis anyway.So at some point, a decision can be made.It’s still not usually done, but a decision can be made that for countervailing reasons, it makes sense to say there's an investigation.

On that, I think it’s a Saturday, the president writes a tweet about his wires being tapped by the Obama administration.What did you think when you heard about that?

I thought it was utterly ridiculous and bombastic, and it was a product of him reading Breitbart News or some other publication that tends to make up facts.

And what can you do, if you're at the Justice Department and the Federal Bureau of Investigation, and the president of the United States makes an allegation like this?

That's one of the tough things about being DOJ or being at the bureau, is that many times, because investigations are confidential or sometimes classified, etc., many times you just have to let there be false information out there that you can't really rebut.It can be very frustrating.

It’s not just when the president or somebody else tweets something that's wrong or a news organization puts out information that's wrong, just any—well, I should back up.Focus on the president, but in fact a lot of times it is bad information, wrong information, that comes out in the news, not necessarily, even sometimes from reporters who are trying to get it right, but they have a bad source or they made a connection that's just not the right connection, and they're just wrong, even reputable reporters who try very, very hard to get it right.

I'm not just talking about situations where I think a particular news organization doesn’t try that hard to get it right and maybe even wants to fuel a little bit of disinformation, which I think definitely happens.But even those who are trying to get it right, sometimes it’s just inaccurate, and there's not that much can be done to respond to that.Yet it causes a problem, because people believe it.

When he makes this allegation, the implications are profound inside the bureau and the Justice Department that the president of the United States would actually act like he knew something this fundamental.This is a pretty fundamental allegation, and the people we've talked to at the bureau and other places said it just rocked their world.

Well, that's interesting, because I felt like it had no legs.I felt like it was just him literally making something up to tweet and to get his base to believe it when it had no basis in fact.

Yeah, that's interesting, because they said Comey went ballistic and wanted to prove it and wanted a statement and came forward to the highest levels of the Justice Department and said: “You need to support the fact that this is not something—we have learned from the Martin Luther King moments; we have learned.Laws have been passed that make it really hard for us to get electronic surveillance going.Please support us in this."And he was rebuffed.

But all those things can be said.When I said you can't respond, you can certainly respond with what process is required, because I do think there's a lot of misinformation out there about what it takes to tap someone’s wires and a lot of confusion about what that even means.But whether we're talking about a criminal wiretap under Title III or whether we're talking about a FISA, which only applies when there's certain standard of proof of foreign agent, there's an extensive criminal process which always requires an Article III judge to weigh in.It’s one response when you get a sort of allegation that seems to be based on nothing, is to at least be able to talk about the extensive process.

But the fear if you do that is then people will think, OK, does that mean you went through that process here?People can differ about when DOJ should respond or when the bureau should respond to disinformation.I think it’s dangerous, though, to get in the position of responding, because once you start responding, then there's an expectation of responding every time, and that's no way to engage in law enforcement or investigations.

He—that is, Comey—and the president by now are throwing lightning bolts, especially the president is, it feels.Now this is March, April, May—

He doesn't go until May.He's not fired until May.

So you can feel it coming?… There are people discussing, “He’s going to fire Comey; he's going to fire Comey."What do you think the likelihood of that was going to be?

You know, I don’t actually remember thinking a lot along those lines during those months.I mean, there was a lot of other important national security things going on.You might remember the airline threat.That's going on at the same point in time, so there are high-level discussions taking place at the White House between Cabinet-level secretaries and the director and the AG, and I'm part of those discussions on national security, and the director is part of those discussions.And the regular business of trying to protect the nation’s security using all tools available and considering the various threats, putting the Russian investigation aside, the other threats out there [were] ongoing and serious, and everybody was doing their jobs the way they always had.

We had new people at the table because, of course, we're after transition, so there's some different faces.But the director was still there, the deputy director was still there, I was still there, and there were actually a number of actings that were there in their deputy positions, because at that point in time, many deputy-level Cabinet positions had not been filled.

I say that as the aside to my recollection of those times is, you know, there was stuff in the media that was certainly suggesting that the director and the president were not seeing eye to eye on things, and there were other things sort of blowing up.But there was also just a lot of daily work being done.So I don't think I thought that much about him being fired.I, frankly, didn't think the president would ever do that.So when he did, I was really very, very surprised.

Why didn't you think he would do it?I mean, he keeps saying that he—

It’s such a major thing to do, to fire the director of the FBI, particularly in the circumstances of there being an investigation of Russian influence on the election of his campaign, of his election.It seemed to me so obvious to send, like, the wrong signal that a president wouldn't want to send.I thought that his closest advisers would prevail in telling him he should not do that.

You have thoughts about the president’s legal team during this time?

Not really, other than what an unbelievably difficult job.(Laughs.) I mean, you have a client you can't control, and being a lawyer with a client that you can't control or prevail upon really makes lawyering hard.

His life story with lawyers, various lawyers, just fascinating, starting with Roy Cohn and moving up.What do you know about that?What do you think about that?How does that affect a guy like Donald Trump in this environment?

… I think that he's always had lawyers do a lot of work for him and fix things for him.You know, he’s done a lot of litigation; he settles a lot of litigation; he's sued and been sued.And he’s always had, I think, a big team of lawyers that are able to somehow get him out of a bind.So far that hasn’t worked the way I think he’d like it to be since the Russia investigation is still ongoing, so he's churning through a lot of lawyers.

I know you know details that we don’t even really care about, but he’s up against a formidable problem, the Russian investigation.It’s a big, big deal, maybe the biggest deal in a long time that a president has faced.And one wonders whether his preparation for handling that is, given who he is and where he’s from—?

Well, I think that is part of what's frustrating him so much, is he's not used to not being able to get his way.It seems like—and I have not studied the whole history of Donald Trump.I've read news stories and other things about his real estate dealings and various other dealings, but it does seem like when he runs into problems historically, whether it’s bankruptcy or whether it’s, you know, issues involving women, whatever it is, whether it’s issues involving his educational university that he formed, the lawyers go and fix it, and they get him out of it.They either buy their way out through a settlement or they litigate their way out by making it impossible for the other side to continue the litigation because it’s just too costly, and then ultimately, he just moves on.Right now, he’s not been successful at shutting down what he believes to be a witch hunt, which I have no reason to believe is a witch hunt, and that's because he doesn't have the ability—when you've got a special counsel, and you’ve got a special counsel like Robert Mueller, extremely talented and experienced investigator and prosecutor with a good team who is keeping their mouths shut, like they should, and things aren’t leaking, the president’s just not been able to shut that down the way he would clearly like to.And he’s made it clear he’d like to shut it down.

What stands in the way of him just shutting it down?

Well, that's been debated by lots of people, right, and there's been a lot of news about various times when he's talking about firing Mueller or firing Rod Rosenstein to get—if Rod doesn’t fire Mueller.None of that's happened, so I think that it’s probably because his advisers, at least in this area, have so far prevented that.There's question about under the Constitution and under DOJ regs, what would actually have to happen?Could he fire Mueller directly, or would he have to ask Rod to fire Mueller, and if Rod refused, would he fire Rod?I think different scholars have different views about that.

Right now, Mueller, I think, is pretty clearly an inferior officer under the Constitution for which there normally would be authority to fire, and other scholars argue, “Well, under the DOJ regs, it would have to be Rod."I'm not interested in getting into that because it’s not an area that I study.But it could be done one way or the other if he wanted to do it, and I think that he has had the desire.He said so; I'm not speculating.He has said so, and I think it’s so far been his advisers persuading him not to take that step.

Well, he eventually fires Mr. Comey.Where were you, and what do you think when you heard about it?

When he fired the director?

Yeah?

This was an interesting week for me, because it was my last week at DOJ after spending almost my entire career there.I've been in government my entire career, 27 years; I've been at DOJ for 23 years.That was on May the 9th.I had to give a speech that night just at a local lawyers’ group INSA court , so everybody there wanted to talk about that, and of course I said I'm not going to answer any questions about that, so that was kind of awkward.

Then what was even more strange about the whole thing is the very next day was my going-away party at DOJ. The attorney general had planned to speak at it, and the deputy director, Andy McCabe, had planned to speak at it, and a number of other people.Turns out Rod also spoke at it.I mean, Rod Rosenstein had, you know, by that point, the memo that he had written recommending Comey’s firing was public, and there we had the deputy director going to be at the same party.

It was just a very odd confluence of events, which is not at all what you expected to get an answer to that question, I'm sure.But for me—

It’s actually a better answer than I expected.

You know, in those last few days at DOJ, it seemed really crazy.

It was chaotic, I would assume?

It was.So at 4:30 on May the 10th, the day after Comey was fired, with my party scheduled to start probably at 5:00—I don’t even remember—I called Andy McCabe, because we worked together very closely; we probably talked to each other every day.I said: “Andy, I totally understand if you just need to take a pass given everything that's happened in the last 24 hours.Don’t feel bad about it.Don’t worry about it."And he said to me: “Mary, I would not miss this.We have been colleagues; we have worked together.I will be over there.I would not fail to come, but I might get out of there right after I speak."And he did.

What did you think when you heard that he’d taken the step of firing Jim Comey?

Well, like I said, I was very surprised.I really did think that as much as he might want to do that, that his advisers would have convinced him not to.And by then he’s already fired Sally; he’s fired Flynn, but we thought he should.So it’s clear by the time he fires Comey that this is a person who is going to fire people that he doesn't see eye to eye with.That's an alarming thing, particularly when people you're firing are people who are really integral to carrying out the rule of law, carrying out the administration of justice.So that's a very troublesome scenario.

What does it tell you?

Well, you know, it tells you that when you're at DOJ, you're going to have to really work hard to protect the institution and its integrity and to keep doing your job without influence, and that that might become hard to do.

The day of your party, he has [Russian Foreign Minister Sergey] Lavrov and Kislyak into the Oval Office.Thoughts?

… That meeting, like so many other things that the president has said about President Putin and Russia over the course of the last, whatever, 16 months or so, have just been surprising, because it’s just always … really criticizing U.S. authorities, DOJ, FBI, and heaping praise on Russians.That was one of the beginning examples of what has since become repeated.I mean, that was a little different.There was some other information that was conveyed, of course, that people were very unhappy about, myself included.

But I think to me, looking now in hindsight, it's just part of a pattern that repeated itself over and over again of sort of disparaging or law enforcement, U.S. law enforcement in favor of Russia.

He calls Comey a “nut job."

I haven’t heard him say that about President Putin.

Rosenstein kind of takes the fall for a couple of days.They all say it’s him: he wrote it; it was his thing about Hillary Clinton that did it.That's the justification for 24 hours, at least.

Well, until the president goes and talks with [NBC Nightly News host] Lester Holt, right?

Yeah.Tell me about Rod.Do you know him, work with him?

I know him.He was the U.S. attorney in Maryland, and of course I worked with him for years.I have a lot of respect for him.We’d worked on some important and difficult national security cases.He’s a good attorney, and I always enjoyed working with him.I think he was put in a really difficult spot coming in, and I had some conversations with him before he started that a lot of people are really looking to him and relying on him, because a lot of people within the department—because you had an attorney general who, as I said before, had been a senator for decades, so … he was really coming into a department that he just didn't have that much experience with other than many decades earlier as U.S. attorney when his office was quite small, and many things have changed.

Your thoughts about how and why he landed on “Bobby Three Sticks”?

On Mueller?Well, I wasn’t part of those discussions, of course, but I think it was a perfect choice.Not only is he enormously well respected, Bob Mueller, as a prosecutor and of course as a director, longtime director of the FBI, but he also is a Republican, so to the extent that anyone was going to—well, there's still been a lot of stones cast, but to the extent that that could be an issue, that at least it would at least potentially satisfy some critics if it had been elsewise.

Although, honestly, I don’t think of Mueller as Republican or Democrat.I've also known him for years, because I come from the D.C. U.S. Attorney’s Office.He was actually head of homicide there years ago when I was in the office, so we go back a very long time.I just never would ascribe partisan politics to him at all.But I'm glad that he agreed to do it, because it’s sort of the perfect choice.

What does it mean that Bob Mueller is running this investigation?How will it be different than when Comey was running it?

I don’t put it as different, like one man would have handled it differently than the other man.What I think is good about this having—and it really just kind of had to happen based on the confluence of events with the firing of Comey, etc., I think is what drove to this.I don't think it otherwise would have required a special counsel.In other words, the prosecutors at DOJ and at the U.S. Attorney’s Office and the investigators at the FBI I think were all perfectly competent to do this investigation.But when it got to this point where after Comey was fired and there was a memo from the deputy attorney general that provided a reason that was different from what the president gave, it really called out for something to be a little bit more independent, even though this is not the same as an independent counsel.

I'm not going to try to compare how the investigations might or might not be different, but I think that it just was necessary given how events unfolded.I'd also say that one obvious difference is I've mentioned various times during this interview all of the things that the director and the deputy director and the attorney general and deputy attorney general and assistant attorney general for national security are having to do on a daily basis about other national security issues, other criminal issues, other civil litigation issues.There's no way that Director Comey would put the kind of time into supervising an investigation [the way] Mueller can.That's impossible.

One benefit of having a special counsel is you have an extremely experienced person who’s actually not having to do anything else but this.

So if you're Donald Trump, you're thinking, “Hmm, maybe I just made things worse”?

Yeah.“Maybe I should have thought about what will come next."

Mueller’s building, they say, an all-star team, yeah?

I know some of them, and I know them well, and they're top-notch.I don't know everybody who’s on it, but certainly Michael Dreeben, who is one of the smartest people I know, who’s argued over 100 Supreme Court cases, brilliant legal mind.Not typically thought of as an investigative prosecutor, but I think when Mueller sought him out, I think it was because he thought he needed, in addition to great investigators, he needed somebody who was scholarly, smart on the law, to make sure that every single thing was buttoned up and done in a way that was going to be able to be defensible.I think that folks should have a lot of comfort that a person like Michael Dreeben is on that team.I mean, he is a Supreme Court appellate litigator.He’s not typically a trial prosecutor, so the fact that Mueller thought that was important I think is a really, really great sign.

It means that he, Mueller, knows they’re headed into a kind of dark forest of potential—?

Well, just that he wants to make darn sure that from the bottom to the top, that they're not only making smart investigative moves from a logical “What's going to get us to the next step?,” but that every single thing they do is right smack within what's defensible to do.Not that they wouldn't, and I'm not trying to suggest they would go outside of established legal authority, but I think it’s great to have somebody on the team who’s such an accomplished criminal appellate advocate.

And there's lots of other kinds of people.There's business specialists, … white-collar crime specialists, all kinds of other people.Why?

Well, I think because Mueller realized pretty early on, and it wasn’t hard to realize, that you were going to have to undertake a fairly broad investigation in order to understand all the pieces of this.Different players had business interests.Different people who were of interest to the government weren't whatever one might think of as sort of classic foreign policy experts or classic politicians and things.

So you've got to be prepared.I mean, any good investigator knows you've got to be prepared to follow the evidence where it leads, and when people have been involved with businesses, businesses that have transacted with Russian companies, people who have had a lot of travel there and business dealings there, that you need to come at this from a broad perspective.

The early indictments, picking the lock at [Paul] Manafort’s house, all of the activities feel very much from the outside like aggressive and determined investigation.How does it look to you?

It just looks like good investigation to me.

Nothing special yet?

No.You know, I get this question with some frequency, or variance on this.But I just see this as what any big investigation would have.A lot of different component pieces and a lot of different investigative tools would be used.

We haven't talked about this, but let’s spend just a little bit of time in here.One of the responses that Trump, I think, makes when he realizes you can't fire everybody, you can't make Sessions resign, you can't do all the things that he was normally doing, almost like a CEO—“You're out”—or the guy on The Apprentice—“You're fired,” he can't, so he has a kind of Roy Cohn-like strategy, which is Fox, [Fox News commentator Sean] Hannity, Breitbart [News], counterattack, knock the props out from under the FBI, attack the individuals in forceful ways.Your thoughts?

Well, I think that is part of his strategy, because you'll see it.Every time there's one piece of news that comes out about either that investigation or something else going on in the world that he doesn't like, then he puts some fireworks over here to attract the attention this way.The interesting thing is those fireworks sometimes don’t necessarily look good for him, but at least attracts the attention away from whatever he wants to attract the attention away from.

But oftentimes, those fireworks are to criticize people he’s appointed, which is also what's so amazing, because, again, he seems to have thought that once he appointed people, they would be loyal to him, and their allegiance would be to him, and he wouldn't have to worry about them doing something that displeased him or he fears undermines him or he fears might turn out bad for him.

So these kinds of attacks are surprising.They're not surprising anymore because that's what he’s been doing now ever since he came into office, and frankly even before.But I think it causes a lot of damage.

Yeah.And what kind of damage?

A whole litany of things.Like I've said in other contexts, I do think that at least at Department of Justice, where I can really speak from experience, that career DOJ attorneys can probably block out a lot of the tweets and the Sean Hannity and the [White House Press Secretary] Sarah Huckabee Sanders comments and keep doing their job.They’ve got jobs to do.They're investigating cases.They’ll keep doing them, and they won't be overly concerned about the tweets.I do think that it’s career officials and even politically appointed officials who have respect for the rule of law [who] have largely thwarted efforts or attempts or desires that the president has had to shut down investigations, start investigations, like restart the Clinton investigation, prosecute Comey.He’s called for investigations almost as often as he’s called for investigations to be shut down, maybe more often.

I think largely he’s not being successful in a lot of what at least he would express a desire to do, but that doesn't mean there's not lasting damage, because it does affect morale of people in the department, certainly affects morale of people at the bureau.I think people feel a little bit differently when they say they work at the Department of Justice than they did beforehand, because the department and its leadership is under attack and because [of] differences they may also have with the direction the department is taking, which is a different topic.

But I also think that it really undermines the legitimacy of outcomes and decisions even if those decisions are made on the basis of career officials making recommendations without any political influence, because let's just assume for a minute that some either policy initiative or case-related decision is made, really truly recommended from the lowest levels on up, no influence whatsoever.[There are] some prosecutors and investigators who have been around for 20 years, through administrations on both sides of the aisle.But if the end result is something that Trump's been tweeting about, I think a lot of people will at least think it’s possible that that result was achieved not through just rule of law, fair administration of justice, impartial administration of justice.They will worry that it was, instead, the product of a partial and influenced administration of justice.

… I don't know if he’s ever thought about this, but I think in some ways he undermines the legitimacy of the things that the executive branch agencies are going to do.It's not just DOJ but others as well, because if you are so vocal about where you want things to go and then they go that way, there's at least that appearance of impropriety .

I also think from the standpoint—it's very, very important for public safety for prosecutors and law enforcement officials, including FBI agents, to have good relationships with the community and to be respected by the community and to be respectful of the community.I think that a lot of what we're seeing from the president attacking DOJ and bureau undermines the confidence that the community has in prosecutors and law enforcement officials and in some ways has had an impact on their willingness to be cooperative.

Now, there is not always a perfect relationship between communities and the bureau, obviously, and we've seen a lot of law enforcement–related cases—now, these tend to be local law enforcement more than the bureau, but a lot of law enforcement–related policing cases in the last couple of years that show some pretty broken relationships in certain communities.

But nevertheless, I will say over my history of prosecuting and investigating cases, all the way from misdemeanor cases in the District of Columbia up to public corruption, white-collar, terrorism, counterespionage cases, that for the most part I've been able to have good relationships with the public that I've served.Whether it was a local metropolitan police officer or an FBI agent that I was working with, for the most part I'd say they’ve had good relationships as well.I do think these type of attacks harm those relationships, and that's not good for public safety.

Then the last thing I would add, although I probably have more things I could add on this, is there will be some people who do feel like their job security does depend on selective prosecution or selective non-prosecution.Hopefully that would be a very small number of people.But I think unquestionably, there is, at least when you have a president who is so almost daily vocal about the direction he’d like to see things going, there will be some people who are vulnerable to that and may actually be swayed by those types of statements by the president and his surrogates and potentially open cases that maybe they wouldn't have otherwise opened.I don’t have any examples of that; I hope that's not the case.I think that would be the rare example, but I certainly think it’s possible.

There's another prong to his attack, and that's the use of Congress, especially Devin Nunes’ committee and the letter released by the committee.This is a direct assault from another branch of government on the Justice Department and the FBI and the conduct of all of them.Thoughts?

Well, beginning when, I guess it was maybe April of 2017, when [Rep.] Devin Nunes (R-Calif.) raced over to the White House with his supposed bombshell announcement, I think it showed a real lack of at least—I guess I shouldn’t paint all of Congress with what Devin Nunes did, but it was a very disappointing step for the head of the House Intelligence Committee to take, which showed, frankly, a wanting to be the lapdog of the president and didn't reflect appropriately on the separation of powers that I think most people who believe in the rule of law think are appropriate.

What we've seen since then—I mean, Nunes then did this partial recusal for some period of time, but then came back into an active role in the House’s investigation, and then, of course, most recently we've seen the release of the letter that was pretty much a direct attack on DOJ. And I think that gives the appearance of the House at least really being beholden to the president and not willing to make their own decisions and chart their own course.

Again, that's painting with a broad brush.There are certainly Republicans and certainly Democrats who have spoken out against some of these things.And of course the Democrats put out their own letter.But none of that is good government.When you've got such partisanship in the committees that should appropriately be exercising oversight roles, should appropriately be making sure that the executive branch has the tools it needs to fulfill their missions and that those tools are working the way they were designed to work, and that there's no waste, fraud and abuse, that's all very appropriate.

But when it develops into partisanship and dueling memos, it just doesn't serve the interests of the American people, nor does it serve the function of oversight.You're left with an inferior product that doesn't help improve processes or anything.

* * *

How would the briefing about what the trouble Gen. Flynn was in, and the situation as it was defined by you and Sally to McGahn, how might this have affected Trump’s attitude toward things when he went in to talk to Comey that night one-on-one?

I can't get in the president’s head or know what exactly he was thinking, but the revelation that he had been briefed the previous night does mean that he was aware of that, when he had the conversation with Director Comey, former Director Comey, on that Friday night.Whether it’s Mueller or just the public kind of recounting the sequence of events, it’s obvious that he, the president, if the memo is true, and if McGahn did brief him on the evening of the 26th, then he certainly knew, when he had that dinner with Comey, that Gen. Flynn had made statements to the Vice President that were not true.

Would that set up any red flags for Mueller?

It would certainly be something I would expect that Mr. Mueller would be interested in.

Why?

As he looks at possible offenses to include obstruction, these are things that—again, mindset is important to obstruction, because you can't obstruct justice unless you have some intent to do so.

Why is mindset important, though, for a lay audience of ours?

Well, there has to be an intent.Just like for most crimes, there has to be an intent to actually obstruct something.So what you know when you are engaging in whatever activity might be alleged to constitute obstruction, what the person knows helps inform what action they took.

Taking action on Flynn, let’s talk a little bit about that.They say they were concerned any action they took could jeopardize the investigation.How do you view that statement?

Well, I disagree that there's anything about the conversation that the department attorney general and I had with Mr. McGahn that would lead them to believe that they needed to worry about that, because, as Ms. Yates has stated publicly, she was clear that we didn’t go over there to provide him this information and tell him he couldn’t do anything with it.And even though we were not going to answer questions about whether there was or wasn’t any pending investigation, it would have been inappropriate to do so, we did make it clear that there were no restrictions being put on the information that we conveyed.

… But explain it to me.Are they worried about obstruction?Are they worried about the fact that it took so long to fire Flynn?Why do you think that statement would be within the [then-lead Trump attorney John] Dowd memo?

I don’t know.The thrust of the memo, to me, is to try to make a case that the president could not have committed obstruction of justice, and that even, of course, if he did, there's really no such thing, because the executive has such broad authority that, even if he were to have fired Comey for reasons that were to end an investigation or impede an investigation, that that still couldn’t be obstruction.

Latest Interviews

Get our Newsletter

Stay Connected

Jon and Jo Ann Hagler on behalf of the Jon L. Hagler Foundation

Koo and Patricia Yuen

Funding for FRONTLINE is provided through the support of PBS viewers and by the Corporation for Public Broadcasting. Additional funding is provided by the Abrams Foundation; Park Foundation; the John D. and Catherine T. MacArthur Foundation; and the FRONTLINE Journalism Fund with major support from Jon and Jo Ann Hagler on behalf of the Jon L. Hagler Foundation, and additional support from Koo and Patricia Yuen. FRONTLINE is a registered trademark of WGBH Educational Foundation. Web Site Copyright ©1995-2025 WGBH Educational Foundation. PBS is a 501(c)(3) not-for-profit organization.