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Obstruction boomerang: FBI knew DOJ was preparing to fire Comey long before Trump ordered it

Rosenstein offered to wear wire on Trump, wanted fired Comey's advice on special counsel, newly declassified memos show.

Updated: January 27, 2021 - 9:04am

The Facts Inside Our Reporter’s Notebook

Newly declassified FBI memos provide startling new details that undercut the frenzied 2017 effort to investigate Donald Trump for obstruction, revealing the FBI knew Director James Comey's firing had been conceived by Justice Department leadership long before the president pulled the trigger during a key moment in the Russia probe.

The memos written in May 2017 by Acting Director Andrew McCabe and a lieutenant also provide contemporaneous proof for some of the more jaw-dropping lore of the now-discredited Russia collusion scandal.

For instance, the memos directly state that then-Deputy Attorney General Rod Rosenstein offered to wear a wire to secretly record Trump in the Oval Office and that Rosenstein also wanted to seek Comey's advice — after his termination — on a possible Russia special counsel. The bureau nixed both ideas, the memos show.

The documents — declassified by Trump during his final 24 hours in office — also provide a tantalizing list of names the Trump administration considered for FBI director, including former Democratic Senator Joe Lieberman, ex-director and eventual Russia Special Counsel Robert Mueller, and retired Gen. John Kelly.

Eventually, Trump settled on former prosecutor Chris Wray for the job.

But the memos' most explosive revelations chronicle the decision by McCabe in his early days on the job to open a formal investigation of Trump on the grounds that Comey's firing may have been an act of obstruction of justice designed to thwart the Russia probe.

The notes show McCabe informed Rosenstein during a May 16, 2017 meeting — one of their first after Comey was fired and McCabe became acting director — that he had opened the obstruction probe.  

"I explained that the purpose of the investigation was to investigate allegations of possible collusion between the President and the Russian government, possible obstruction of justice related to the firing of FBI Director James Comey and possible conspiracy to obstruct justice," McCabe wrote in typewritten notes of the meeting.

One of McCabe's lieutenants who also attended the meeting, then-bureau attorney Lisa Page, took her own notes, observing that Rosenstein's expressed outrage over Comey's firing seemed odd since Rosenstein had revealed to FBI officials he and then-Attorney General Jeff Sessions had been contemplating it since January 2017.

"This was a strange comment," Page wrote, "because it was my understanding that the DAG had previously indicated that he and AG Sessions had been discussing firing Director Comey since January, but given the nature of the conversation there was no room for follow-up."

McCabe's own notes from the May 16, 2017 meeting don't mention that Rosenstein had been discussing firing Comey since January. But five days later in a new meeting, McCabe quoted Rosenstein as confirming the termination had been in the works for months and was not really driven by the Russia probe.

"We returned to our discussion from the morning meeting about the DAG's memo on the firing of Director Comey," McCabe wrote on May 21, 2017. "The DAG stated that based on conversations he had had with the AG as early as January 2017 he knew Director Comey was going to get fired."

The FBI memos also show Rosenstein believed the memo firing Comey did not need to mention the Russia probe, even after Trump suggested it be added, since it had been under consideration long before.

"The DAG said to the president he did not think this was a good idea and that his memo did not need to include Russia," one of McCabe's memos stated. "The president replied that he understood but that he was asking the DAG to include Russia anyway."

McCabe's notes track closely his testimony to the Senate last year. Rosenstein did not return a call Tuesday to his law office seeking comment. But in past Senate testimony, Rosenstein acknowledged he and Sessions wanted to fire Comey as early as January 2017.

The FBI memos, however, show for the first time that McCabe and other bureau leaders knew it even as they opened an obstruction probe predicated on the termination. The revelation undercuts the obstruction case McCabe opened, experts told Just the News.

"Most supervisors I know wouldn't open that case with such stunning exculpatory information," said Jeffrey Danik, a decorated 28-year veteran FBI supervisory agent who retired in 2015.

"It's more than flawed, it is its own standalone abuse," Danik added. "You have exculpatory information, and you are ignoring it."

The newly declassified FBI memos also contain many other revelations. For instance, McCabe's testimony to Congress that Rosenstein offered to surreptitiously record Trump is supported by his contemporaneous May 16, 2017 memo.

"As our conversation continued, the DAG proposed that he could potentially wear a recording device into the Oval Office to collect additional evidence on the president's true intentions," McCabe wrote. "He said he thought this might be possible because he was not searched when he entered the White House. I told him that I would discuss the opportunity with my investigative team and get back to him."

Another memo recounts a call McCabe got from Rosenstein seeking a secret conversation with Comey after he had been fired.

"On Sunday May 14, 2017 at approximately 10 AM the DAG called me on my cell phone," McCabe wrote. "Using coded language, he asked me if I had had the opportunity to speak to Director Comey, he would be very interested to hear what the director thought about the special counsel issue. I told him I would consider it.

"I convened a conference call with [FBI Counsel] James Baker, [Chief of Staff] James Rybicki and [bureau lawyer] Lisa Page to discuss whether or not I should seek Director Comey's opinion on the special counsel issue," McCabe added. "We all concluded that I should not, and that in light of the fact that he was no longer an FBI employee, it would be inappropriate to continue discussing investigative issues with him."

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