Comey rose to become deputy chief of the office’s criminal division but quit in 1993, three months after Mary Jo White arrived. “My wife wasn’t digging New York,” Comey says (he and Patrice Failor met as college freshmen and were married in 1987). “We wanted to live in a place where we’d both be happier raising our kids. She knew northern Virginia, because she’d grown up there and in Iowa, but we liked Richmond as a place to live.” Comey worked as a corporate lawyer at the McGuireWoods firm, but for what turned out to be a short run. He quit his lucrative partnership after defending a company against claims that its machinery caused asbestos injuries. Comey won the case, but it rattled his conscience. When he was offered an assistant U.S. Attorney’s job by Helen Fahey, a Clinton appointee for the Eastern District of Virginia, he jumped at a chance to go back to a civil-service salary and wear the prosecutor’s white hat.
Comey made his name with Project Exile. Richmond was plagued with shootings, and Comey, “along with several other people,” Fahey emphasizes, came up with the notion of federalizing illegal gun possession—that is, getting the federal courts, where sentences were stiffer, to handle the gun arrests made by Richmond police. Comey went to Eric Holder, then Reno’s deputy, for help with money and planning.
After Bush was elected in 2000—a friend remembers Comey calling on Election Night with news of the Republican candidate’s (first) Florida victory and hearing Patrice celebrating in the background—Comey was a prime contender for promotion to U.S. Attorney for Virginia’s Eastern District. But he lost out to Paul McNulty, who was close to Ashcroft.
In early 2001, FBI director Louis Freeh was frustrated with the slow pace of the investigation of the 1996 Khobar Towers bombing in Saudi Arabia, which killed nineteen American servicemen. Freeh steered the case from Washington prosecutors to Comey in Richmond. Comey quickly delivered fourteen indictments—gaining the attention of President Bush. Six months after the Khobar Towers indictments, Bush nominated Comey to replace Mary Jo White.
Comey was thrilled to return to New York, and says that a trip along the Hudson brought his wife onboard. Still, leaving Richmond was difficult. In 1995, the Comeys’ infant son, Collin, died when an easily treatable bacterial infection went undetected; Collin was 9 days old. “Whenever they come back to Richmond,” says a friend, “one of the first places they go is the cemetery.”
Patrice Comey wrote an op-ed piece for the Richmond Times-Dispatch two weeks after Collin’s death, beginning her campaign to change hospital procedures so that screening for strep B would be routine. Comey backed up Patrice’s moral suasion with a lawsuit against the hospital and the doctors (the hospital paid a monetary settlement and agreed to institute new protective measures; Comey dropped the suit against the doctors).
Fixing the medical protocols didn’t salve the Comeys’ pain, or solve the larger questions. “It’s very, very hard to understand why it happened,” Comey says. “And glib explanations about certain things being God’s will are not satisfactory. It’s simply not fair to say it’s God’s will. That’s inconsistent with any notion of a caring being. What we can say, as Job said, basically, is that we almost can’t ask the question of why, but we know what our obligation is: to make some good come of this. Not to say, ‘Oh, yeah, yeah, it was worth it that my son died,’ or that all these people died on September 11, or that millions and millions were slaughtered in the Holocaust and in Rwanda. But simply because it is our obligation as people not to let evil hold the field. Not to let bad win.”
Comey was a compromise selection for the plum New York job. George Pataki initially pushed for his conservative counsel, James M. McGuire, but Chuck Schumer pushed back. New York’s other senator, Hillary Clinton, sat out the maneuvering because the Southern District was—and still is—investigating Bill Clinton’s pardons.
The Southern District, stretching from Wall Street to Sullivan County, has always supplied a rich diet of evildoers. “The white-collar cases probably make me more angry, simply because the people involved have so many other options,” Comey says. “A lot of people go into the drug trade because they don’t think they have other options. And because a lot of people with jobs, who don’t live, say, in that area of the Bronx, want to buy the drugs. That’s one of the great things we don’t talk about in America much—that there’s another side of the drug equation, and it’s driven by a lot of people with jobs.”
Even crusty New York defense lawyers praise Comey’s fair-mindedness. “Rudy Giuliani is one of the great self-promoters of all time,” says Gerald Shargel, a defense lawyer who has faced off against both Giuliani and Comey. “Rudy brought to that office an element of self-importance, self-promotion—overstating accomplishments, seething at any dissenters. That’s not Comey at all. Comey is a much more balanced person.”
“Jim has done a terrific job,” Mary Jo White says.
Though the juries are literally still out, or not even in yet, on Comey’s biggest cases, some aspects of his New York legacy are disquieting. There’s the bogus “confession” of Abdallah Higazy, the Egyptian student jailed after the September 11 attacks; police said a pilot’s radio had been found in Higazy’s hotel room overlooking the World Trade Center. “It’s an important example of Comey’s willingness to steamroll someone who was alleged to have engaged in terrorist activity,” says Dunn of the New York Civil Liberties Union. Comey also argued that José Padilla—accused of planning to explode a radioactive bomb and declared an enemy combatant by President Bush—had no right to a defense lawyer.
And under Comey, the Southern District—mocked by lesser jurisdictions as “the sovereign district” for its fierce hold on the glossiest cases—yielded some of its storied independence. “Washington has played a more important role in the Southern District than it did in prior administrations,” says Robert Morvillo, Martha Stewart’s defense attorney. “The signs are in the way Comey has pushed death-penalty and terrorism cases. You could attribute it to the fact that Comey has no substantial political base. Or you might attribute it to the strength of the personalities in Washington, like John Ashcroft.”
It’s September 9, and the patriot Act promotional blitz pulls into its final stop. A dozen enormous American flags are draped behind the stage inside Federal Hall, where Congress adopted the Bill of Rights in 1789. Today, the star attraction is John Ashcroft. First, Comey welcomes the assembled cops, firefighters, and prosecutors, who’ve been carefully arranged for this photo op. Then Roslynn Mauskopf, U.S. Attorney for the Eastern District of New York, begins her introduction of Ashcroft by needling Comey. “The attorney general is a fierce competitor who never loses on the basketball court—even against my six-foot-eight-inch colleague,” Mauskopf says. “Good strategy, Jim.”
Ashcroft thanks Comey—“not for taking any dive in basketball, but for your great work here”—then shamelessly invokes the second anniversary of the World Trade Center attack to justify the need for enlarging the Patriot Act. Whenever Ashcroft pauses, shouts are audible from anarchists protesting outside. They’re not alone in their disapproval. Even staunch conservatives like former Georgia congressman Bob Barr are dismayed that the federal government proposes to lock up librarians who publicly discuss subpoenas of reading records, and by how intrusive Patriot Act tactics have spread into investigations having nothing to do with terrorism.
When Comey arrives in Washington next month to become interim deputy attorney general (his appointment is subject to confirmation hearings), the Patriot Act’s provisions will be among his main weapons. “Filling in this spot is a big effin’ deal. Especially on the terrorism side,” says a senior staff member on the Senate judiciary committee. Comey’s predecessor as D.A.G., Larry Thompson, directed the department’s sweeping counterterrorism initiatives. “Now that the Patriot Act powers are in place,” the staffer says, “the cast of characters—the people who are actually going to implement themreally matters. A prosecutor with these tools can ruin somebody’s life. Comey comes in with a reputation as a pretty good professional. We’ll see.”
Comey is no Beltway virgin: He’s flown to Washington regularly as a member of Thompson’s task force on corporate crime. Perhaps that experience will help him avoid getting tangled, say, in the probe of who burned the cover of CIA operative Valerie Plame.
“Jim is a chess player,” says Eric Holder, who learned about the political land mines of the job when he was deputy attorney general during the Monica Lewinsky mess. “He’s thinking not only What’s the impact of the move I make today, what’s the impact going to be tomorrow? He’s thinking, What’s the impact going to be one month, two months, six months from now?”
Associates say Comey’s ability to calculate several moves ahead is evident in his thinking on the Zacarias Moussaoui case. On the surface, the trial appears to be a nonstop debacle for the Justice Department. It’s currently stalled by a standoff over Moussaoui’s demand to question other alleged terrorists held in American custody.
A faction in Ashcroft’s inner circle would like to end the whole dance and shift Moussaoui’s trial to a military tribunal. Comey won’t talk about the Moussaoui case while it’s active. But a colleague says that Comey sees a valuable big-picture purpose to slogging through the courts. “Jim thinks we have to have a criminal-justice response to terrorism,” the law-enforcement official says. “Because let’s say the next terrorist is caught in Hamburg. The Germans are not sending him to an American military tribunal. They’re not even sending him to a death-penalty proceeding. They will only send him to a civilian-justice proceeding. What do we do then if we haven’t resolved these issues and balanced a defendant’s rights to discovery with the country’s need to protect classified information? Do you dismiss the indictment? Do you let the guy go?”
Whether Comey, as the new guy in Ashcroft’s office, can win such strategic battles remains to be seen. What happens the first time his dispassionate lawyer’s logic collides with Ashcroft’s political needs?
“Whenever a new prosecutor started working in the U.S. Attorney’s office, Comey would tell him, "Don’t you ever say something you don’t completely believe. I’m not even talking about shades of gray. If you don’t 100 percent believe it, don’t you dare say it. That’s why being a prosecutor is so great: You don’t have to make arguments you don’t believe in.”
Now Comey will attempt to maintain his own integrity with a scandal humming, a war unraveling, terrorists plotting, and a presidential election looming. Jim Comey is on John Ashcroft’s team. We’ll soon find out how willing he is to play ball.