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Wittes described the moment he decided to call the New York Times to share details about Comey's attempts to keep his distance from President Trump.



"I had known that Jim had been asked for loyalty and said he could only give honesty. But without the framing of this dramatic dinner, and the sort of grotesque impropriety of that taking place in that scene, it hadn't all clicked. The moment I read that story I said, 'My God, I understand a whole lot of things that he had said to me in a way that I hadn't understood them before.'" He said. "And the next day, I called [New York Times reporter] Mike Schmidt, and I told him I had additional information for him."

Wittes was also critical of Deputy Attorney General Rod Rosenstein's role in Comey's firing. "I believe that the proper thing for Rod Rosenstein to do is not to continue in office. I have said that and I continue to believe it. I think once you've been party to the sort of charade that he was party to in the removal of the F.B.I. director, your proper role in public life is extremely limited."

Read the full transcript below, and subscribe to listen.



Transcript

Ben Smith: I wanted to just start by asking you a little about yourself. You're a reporter not a lawyer, essentially. Did you ever did you ever want to go to law school? How did you get into this this line of work?

Benjamin Wittes: Well, I never considered going to law school, honestly. I started my career as a reporter who was kind of focused on legal affairs because that's the newspaper that hired me, was a legal newspaper. And so I kind of drifted into writing about law, and found that I loved the law and loved writing about it.

But then because of a weird accident of fate, I ended up at a very young age writing The Washington Post's legal affairs editorials. And so by the time I was 27 or 28, the moment to go to law school had passed and I was writing the Post's editorials on the Supreme Court on the impeachment of President Clinton, and on all sorts of judicial nominations, issues that I really cared about. As well as certain national security law issues that eventually kind of took over my life.

But there was never a question of me becoming a practicing lawyer of any kind.

So you see yourself as a reporter, despite your think-tank location?

WITTES: No actually I haven't been a reporter for many years. I mean, I was an editorial writer for ten years or nine years. But I think of myself as a kind of legal writer and that has elements of, journalism, it has elements of think tank policy-wonky kind of stuff, it has elements of kind of conventional legal scholarship, and it has elements of kind of policy entrepreneurship.

But I, think I do things that reporters don't do and shouldn't do, like you know, I consult on policy issues sometimes. And I also don't do things that self respecting reporters do like, I don't publish classified material. You know my friend and colleague Shane Harris sometimes calls me a defrocked journalist, and that's kind of the way I think of it.

Yeah, I think that's sort of a feature of this moment. Nobody has frocks anymore. And you mentioned you were at the Washington Post editorial board for ten years and I think for many of the folks who now read you religiously that would be the despised Washington Post editorial board which during the period you were there was kind of a seen among the kind of upstart left wing media in particular as a sort of symbol of the establishment's mistakes in the Bush era, and particularly around Iraq.

WITTES: And I was one of the reasons for that. While I was not directly involved in the paper's Iraq editorials, I was part of the board that took those positions, and I supported those positions, and I, to the extent that people have anger at the Washington Post editorial page for the positions we took on Iraq, I am part of that and I, and I was proud to be associated with the page at that time.

And I've never run away from my share of whatever glory or ignominy we earned in that period. I keep reminding people of the left who have become admirers of Lawfare, admirer, of me that you don't have to go back far before I'm, in the views of a lot of people. one of the villains and I don't run away from any of that stuff. Lawfare is fundamentally a site about national security law and, you know, a lot of its writers including me believe in strong national security authorities of a type that used to be associated with—people used to use a lot of pejorative words to describe us, like "handmaidens of power" and "courtiers of the power elite." And some that were less nice than that.

If we can scare any further kind of progressives off of this podcast right now, is there anything in particular you, you sort of point to in your views that you find effectively alienates your new fans?

WITTES: You know, I just keep reminding people that I'm not part of the team, right? And like a year ago people were upset at me because of because I was not on board on the idea that the biggest threat to liberty in the world was the regulation of encryption, right?

And over the course of Lawfare's history we've generally been thought of as part of the dinosaur right because some of us have defended things like Guantanamo and drone strikes and robust surveillance authorities under FISA, and Executive Order 12333.

And you know it's only in the last year as, in some of our views, a major national security threat has arisen in the form of the functioning of the presidency of the United States under President Trump, that a lot of people have discovered that there is value, and maybe wisdom, and maybe knowledge in this group of national security legal scholars and practitioners who who had once been, A. relatively obscure and B. whose work was principally of interest to practicing people in the government, and often in some tension with the views of conventional liberal opinion.

Was there a moment when you as an institutionalist, as somebody whose ideology is really centered on the the idea of the rule of law, in part, when you realized that this administration was going to be defined by what you called "incompetent malevolence." And did you have a road to Damascus moment here where, you sort of, you know, realized that maybe you weren't on a team but you were definitely not on the team of people who, by the way, I think on paper probably share some of your views on the strong national security state, in the Trump Administration?

WITTES: Well, look, my road to Damascus moment was in March of last year. In December of 2015, John Ballenger, who is one of our one of our Republican contributors, he was a State Department legal adviser in the Bush administration, and he was NSC legal adviser earlier in the Bush administration, and he wrote a piece on the theme that Trump was a threat to national security.

Three months later, in March of the following year, I elaborated on that post. And I wrote a long post identifying seven threats to national security posed by the Trump candidacy, let alone presidency. And that post was entitled, "Trump As National Security Threat."

And a few months after that when it became really clear that he was going to get the nomination I wrote a series of posts called, "Trump and the Power of the Presidency." And, first of all, I think they stand up extremely well.

The first one of them is about the possibility, which was understated at the time, under-discussed at the time, of abuse of the Justice Department. So that was in the spring and early summer of last year.

In the weeks before the election, I wrote a post, a set of posts, again, saying that we really had to throw out traditional party identities and think of this as a matter of a of a sort of coalition of democratic forces, small-d democratic forces, against an authoritarian movement.

So that's actually where I come from and by the way in those in those posts I said you have to take the possibility of a Trump victory very seriously because things that have a, you know, small percent chance of happening, happen all the time.

And so I actually think that the answer to your question is: I took this problem very seriously from the beginning because I am a student of executive power, and I saw the things that Donald Trump was saying, and I said, "this mood, this personality is simply not consistent with the nature of the office, the things he's promising are not consistent with the nature of the office, and his behavior and personality are not consistent with the nature of the office." To which he very well might assent.

Two days after the election, Susan Hennessey and I wrote a piece that said: the thing you've got to watch for is the firing of Jim Comey. That this would be a particular danger sign. That was November 10th.

So I don't think it was a road to Damascus moment for me personally here. I think it was an understanding of the nature of the security authorities of the presidency, and the nature of the individual in question. And Lawfare itself of course does not take positions on anything, no one's ever been chosen to write for the site because of their views of politics, or Donald Trump, for that matter. I do think it is striking that there is a remarkable degree of consensus that we are in a dangerous moment viz a viz the executive branch of the United States.

When did you first meet Jim Comey?

WITTES: I've known Jim for more than a decade. We met when he was deputy attorney general, and I was an editorial writer at The Washington Post.

There was a moment where, because you on May 19th, described your conversations with him to the New York Times in this kind of extraordinary piece, I think I saw you described as his best friend and essentially as as sort of speaking for him. Could you just sort of describe exactly where on that spectrum you guys are?

WITTES: Look there are a group of people to whom Jim is extremely close and I'm not part of that inner circle of intimates. I never have been, I've never claimed to be. The more I disclaim that, ironically, the more people tend to hype our relationship and there's this sort of meme that's developed that, you know, we are particularly close.

And that's not true. We're friends — we're good friends. But I've tried always to avoid overstating the nature of the relationship. Washington's a town full of people who overstate their relationships with people, and I don't really want to be part of that.

You made very clear in that in that May piece that Comey had not in fact sent you out to deliver a message, but that you had decided on your own to reveal his private conversations, because you thought in retrospect that they revealed a kind of malevolence from Trump that wasn't initially clear to you. How do you make that decision?

WITTES: So look the answer was I sat down when that New York Times story came out, and this is the New York Times story about the loyalty oath dinner, and I read that story. And I shouldn't have been shocked by it, because of everything that I had already known. But I hadn't processed that information through the right narrative lens. I had known that Jim had been asked for loyalty and said he could only give honesty. But without the framing of this dramatic dinner, and the sort of grotesque impropriety of that taking place in that scene, it hadn't all clicked.

The moment I read that story I said, "My God, I understand a whole lot of things that he had said to me in a way that I hadn't understood them before." I can't remember what day of the week it was, it may have been a Friday or Saturday. And the next day, I called Mike Schmidt, and I told him I had additional information for him. That's the answer to your question.

Did you tell Comey you were going to do it?

WITTES: I have not, I don't want to discuss any conversations that I've had with Jim other than the ones that I've discussed in public.

For reasons that kind of consistent with your view in the world—you don't publish classified information on your site?

WITTES: There are very specific reasons that we don't publish classified information on the site, and let me be clear about what they are.

Number one is that a bunch of our contributors, including our managing editor, have security clearances. And a bunch of people associated with the site have active security clearances or would someday want to reactivate them and we would want them to go back into government. And we don't want to put people in a position where contributing to Lawfare is inconsistent with the roles that they need to play in government.

The second reason is that we have this group of student contributors who are part of the heart and soul of the site. And most of them get involved with the site because they want to go into government and do national security policy and law work, and we can't ever put them in the position in which we would jeopardize their ability to get a security clearance in the first instance because of work they did with us.

Do you have any sort of philosophical objections to leaks, to publishing classified information, or are these just these sort of practical ones?

WITTES: I have a deep philosophical objection to blowing classified programs without an extremely good reason. That's not to say a philosophical objection to ever publishing anything that's classified, because some material is improperly classified, some material may be properly classified but, but the public interest in the information may outweigh that in the minds of a reasonable newspaper. So I'm not saying that the amount of classified information that you should publish as a newspaper is zero, by any means.

I am saying that the modern interest in blowing highly sensitive classified intelligence programs that are themselves legal and appropriate and about which you're really not doing more than sort of telling a good story, is something that I'm not sympathetic to. I'm not I'm not a hardliner about it at all. And I do think the reasonable posture for a newspaper is different from the reasonable posture for me, but I'm not a fan of the way major newspapers handled the Snowden leaks.

So you're on the conservative end of the traditional spectrum around how you balance these things. But actually I just wanted to get back to some of the Comey specifics because I thought there might be things that you could shed light on. The first of which was in his testimony there was this cryptic moment where Trump says to him, "We had that thing." And that this was one of the reasons he expected kind of a kind of loyalty from Comey. Do you have any idea what he was talking about?

WITTES: I have no idea what he was talking about and I think it's one of the most interesting moments in the prepared statement.

Do you think Comey knows what he was talking about?

WITTES: I don't know. So, let me say this is not something I've ever discussed with him, and if it were, I would probably not discuss it with you. But I think it was just working off the public record, where in that statement Comey had an inference about what something meant, he disclosed in the statement what the inference that he made was.

And, so, for example, when in the loyalty oath conversation, he says very specifically that he tried, that he interpreted this as an effort to engage him in patronage relationship, right? And when he's asked about the Flynn request, he makes clear that he interpreted it as a directive.

In this situation, he doesn't say what he thinks it meant, and, in fact, I think it says in the text that he says he kind of didn't know what it referred to right?

Yep.

WITTES: And I, first of all, take that at face value and secondly the fact that in other situations where there is an inference to draw, he drew it, I think suggests that he may have been quite perplexed by that interaction.

And Trump sometimes talks nonsense, so it was possible that it was that.

WITTES: Yes.

The other line in there, was the, in your description of it, was about Comey's wariness, is the word, about the deputy attorney general Rob Rosenstein. And I wonder: are you wary of him? I think he's in a very difficult position right now, but do you feel he's doing his job?

WITTES: So I've known Rod Rosenstein for twenty years and I've always thought highly of him. And I was absolutely shocked by his conduct in Comey's firing. And in the aftermath of which I called on him to resign.

In the weeks since then, Rod has done some genuinely courageous things, including appointing Bob Mueller, including behaving in a fashion that I think has genuinely protected Mueller's investigation in the context of a president who is clearly gunning for it, and publicly testifying that he would not, despite the noises coming out of the White House, he would not be party to removal of Mueller for reasons other than good cause.

So I think Rod's performance has been extremely mixed and he is under an incredibly difficult set of circumstances right now. And I do not retract anything that I've said about him in the past, but right now my concern is for him to be not kneecapped by a president who Twitter-kneecapped him this morning, right? And accused him of investigating him for firing an F.B.I. director he had urged him to fire. And I think, right now the president is railing against Rod Rosenstein and I assume that's for the honorable side of what Rod has done over the last few weeks.

I think there's this question of whether he'll recuse himself, and that report that he's considering it. Would you prefer he not?

WITTES: I believe that the proper thing for Rod Rosenstein to do is not to continue in office. I have said that and I continue to believe it. I think once you've been party to the sort of charade that he was party to in the removal of the F.B.I. director, your proper role in public life is extremely limited.

I have additional concern to protect the integrity of the investigation that is ongoing. And right now those two feelings are somewhat in tension with one another. And I don't honestly know what the proper way to resolve them is. I do think as the leader of an investigation in which you're sort of a witness at this point, in addition in which the president, for whom you work, has tweeted a vote of no confidence in you, it is very hard to continue running that investigation. And so I would not be at all surprised to see a recusal from him in the coming days.

Do you expect Trump to ultimately fire Mueller?

WITTES: I have long since giving up predicting the behavior of Donald Trump and I wish others would do the same. You know Shelley once wrote a poem that ends with the line: "not shall endure but mutability." And I think we could amend that to say that, "not should endure but eccentricity," and that would not be a terrible way to describe any anticipation of the behavior of Donald Trump.

But, you know, we decided that some measure of this was okay the day we elected him. Every time he does something like this and we allow him to get away with it, we normalize more of it. I dissent from that election and I dissent from the normalization. I think it's an erosion of the presidency on a daily, hourly basis, and there's no part of me that has any compromise to make with it.

But that ship is not one that I'm piloting, and so you know asking me to predict it is a little — it's just not my department anymore.

Is there something that you think Mueller is or ought to be doing to build an investigation that could at any moment have its head cut off it? Does that affect the shape of the investigation?

WITTES: Oh, I think it does, I think it has to. If you're Mueller, you are very keenly aware that you may not be there tomorrow. I think that may change the way you interact with the subject matter.

So let me give you two examples. The first is, in a normal investigation, you start with the small fish, right? And you investigate the small fish, you try to bring pressure against them, you flip them, and then you work your way up the chain. But here the president can pardon a small fish at any moment, and once the president does that, the investigation is over. And so this may be part of the explanation for why this investigation is focused on Trump from the beginning. So you've front-loaded the stuff that doesn't require — you go directly to the president's obstruction issues.

Now I don't know the answer to this question, but it's worth asking if Mueller did not know that he could be removed at any moment, would he be doing that? That's one interesting question. The second interesting question is if you are Mueller and you know that you can be removed at any moment, do you put any systems in place for what happens the day that that happens? So that the information that you've collected does not go away, right?

So that the institutional function of the office has—there's some failsafe. And I don't know the answer to that question either but I would think that that would be something that a person as smart as Mueller dealing with this situation would give some serious thought to.

My last question is about Lawfare, sort of its position in the ecosystem, because in Russia, there's a site called Life News, I don't know if you ever run across it, it's a pretty reliable source of information coming out of the national security establishment when somebody is arrested, sometimes it has the photos first. It's where you read the tea leaves of the Russian security apparatus.

And it has always struck me as like a pretty unhealthy feature of Russia's, one of many, that the security apparatus has its own media voice in its own arm into the public conversation that's not mediated by — I mean there which is not even really pretending to be democratic, or I guess it is still pretending.

Are you guys essentially the sort of the voice of the unelected national security state? Maybe deep state is a nonsense term, but a way for people who really ought to be governed by their democratically elected masters to go around that?

WITTES: So obviously, if I thought that's what we were that would be a matter of some shame. ItI's not the way I think about what we do it all. So Lawfare started because a group of us had all written stuff together, none of whom were part of the deep state: one of us was a law professor at Harvard Law School, one of us was a law professor at UTexas, and one of us was a Brookings scholar.

And so what we had in common was that, first of all that we were not subscribers to human rights orthodoxies. And that we were people who found ourselves often in, you know, friendly but adversarial dialogue with what we thought of as human rights orthodoxies that dominated the professional discussions outside of government, but were not the basis in which people in government were actually making decisions.

And so the question that we were struggling with, and that sort of led to the creation of Lawfare, was what if we thought of the government people as the audience and we thought of the goal is to provide the sort of analysis that would be actually helpful in the kind of decisions that they actually have to make.

And it turned out that if you do that, you develop a very passionate readership inside of government.

Well thank you so much for coming on, Ben. And we can both kind of race back to the Internet now and see who's resigned in the last twenty minutes.

WITTES: Yep, my pleasure.