Did Comey Violate Laws In Leaking The Trump Memo?

440px-Comey-FBI-PortraitOne of the most interesting new disclosures today in the Comey hearing was the admission by former FBI Director James Comey that he intentionally used a “friend” on the Columbia law faculty to leak his memos to the media.  Comey says that he did so to force the appointment of a Special Counsel. However, those memos could be viewed as a government record and potential evidence in a criminal investigation.

richmanNotably, Columbia Law School Professor Daniel Richman on a faculty webpage reads that he is “currently an adviser to FBI Director James B. Comey.” Richman specializes in criminal law and criminal procedure.

The problem is that Comey’s description of his use of an FBI computer to create memoranda to file suggests that these are arguably government documents.  Comey admitted that he thought he raised the issue with his staff and recognized that they might be needed by the Department or Congress.  They read like a type of field 302 form, which are core investigatory documents.

The admission of leaking the memos is problematic given the overall controversy involving leakers undermining the Administration. Indeed, it creates a curious scene of a former director leaking material against the President after the President repeatedly asked him to crack down on leakers.

Besides being subject to Nondisclosure Agreements, Comey falls under federal laws governing the disclosure of classified and nonclassified information.  Assuming that the memos were not classified (though it seems odd that it would not be classified even on the confidential level), there is 18 U.S.C. § 641 which makes it a crime to steal, sell, or convey “any record, voucher, money, or thing of value of the United States or of any department or agency thereof.”

There are also ethical and departmental rules against the use of material to damage a former represented person or individual or firm related to prior representation. The FBI website states:

Dissemination of FBI information is made strictly in accordance with provisions of the Privacy Act; Title 5, United States Code, Section 552a; FBI policy and procedures regarding discretionary release of information in accordance with the Privacy Act; and other applicable federal orders and directives.”

Lawyers generally ask for clients or employers to release information, particularly when it may be detrimental to the firm or the client or someone associated with your prior representation.

By the way, waking up in the middle of the night (as described by Comey) is not generally the best time to decide to leak damaging memos against a sitting president. There are times when coffee and a full night’s sleep (and even conferral with counsel) is recommended.  Leaking damaging memos is one of those times.  Moreover, if Comey was sure of his right to release the memo, why use a law professor to avoid fingerprints?

I find Comey’s admission to be deeply troubling from a professional and ethical standpoint.  Would Director Comey have approved such a rule for FBI agents?  Thus, an agent can prepare a memo during office hours on an FBI computer about a meeting related to his service . . . but leak that memo to the media.  The Justice Department has long defined what constitutes government documents broadly.  It is not clear if Comey had the documents reviewed for classification at the confidential level or confirmed that they would be treated as entirely private property.  What is clear is that he did not clear the release of the memos with anyone in the government.

Comey’s statement of a good motivation does not negate the concerns over his chosen means of a leak.  Moreover, the timing of the leak most clearly benefited Comey not the cause of a Special Counsel.  It was clear at that time that a Special Counsel was likely.  More importantly, Comey clearly understood that these memos would be sought.  That leads inevitably to the question of both motivation as well as means.

 

What do you think?

 

745 thoughts on “Did Comey Violate Laws In Leaking The Trump Memo?

  1. Give all of those bozos (i.e., Mueller, Comey, Rosenstein, Bill & Hillary, Obama, Lynch, Rice, Holder, et al.) a polygraph test. If anyone refuses, that is prima facie evidence that they are liars and are guilty as being part of the Deep State. They should all be in prison. Do it now!

  2. You left out the full context of the website:

    “Through what is known as the National Name Check Program, limited information from the FBI’s central records system is provided in response to requests by other entities lawfully authorized to receive it. These entities include . The FBI’s central records system contains information regarding applicant, personnel, administrative actions, and criminal and security/intelligence matters. Dissemination of FBI information is made…”

    It sounds to me that this applies to information from FBI’s central records systems, not the personal memos of the FBI director.

    • Anyone on the employ of the federal government cannot write “personal memos.” He may call it a personal memo. However, everything he writes using a government laptop, in a government vehicle, and on government time IS the property of the government whether or not he calls it a personal memo. Such government property can include classified information. Any conversation with the POTUS written down in any kind of a memo is classified information, and the hearer and writer of the memo may not release that conversation to the press/media. Comey is guilty of releasing classified information to the “enemy of the people,” which is a corrupt press/media i.e., the New York Crimes. BTW, why will not the Trump administration require polygraph tests of all employees working in the White House, FBI, and DOJ? He should automatically fire everyone refusing to take the test! Drain the Deep State swamp!

      • Well said and spot on!

        The Sedition law in this country needs to be beefed up.

        The “press” cannot be free to publish anonymous information that is known to be obtained unlawfully and which is either classified or confidential government material, whether by formal declaration or its nature.

        If there were any question of its confidentiality, it is incumbent upon the “press” to verify it is NOT illegal to publish. There can be no press “right” to jeopardize the rule of law and the security of our nation.

        Comey, the Columbia U. professor, and the receiving/publishing entity are all guilty of breaking federal laws and they should be prosecuted forthwith.

        That is the only thing that will stop this seditious leakage of information. Swift justice for lawbreakers!

        The creation of a Special Counsel should require more than a politically-convenient allegation by sore losers to spawn a “Special Counsel”.

        Now that the “Special Counsel” has drifted into territory for which AG Sessions has not recused himself, Sessions should shut down this witch hunt operation forthwith. Frankly, I’d fire the Deputy AG who appointed the Special Counsel in the first place.

        And just when is HRC going to be brought to justice?

        Justice delayed is justice denied!

      • Evidently, it requires more evidence to obtain a search warrant than to create a “Special Counsel” to initiate a witch hunt.

      • Where do you get your information? Government information isn’t automatically classified (and any conservative worried about the size and power of government would see the problem with the lack of transparency such a system would pose). It has to be designated as classified by a proper authority.

        https://www.archives.gov/isoo/faqs/identifying-handling-classified-records.html

        “Classified national security information is information created or received by an agency of the federal government or a government contractor that would damage national security if improperly released…. Information can only be classified if an official determination is made that its unauthorized release would damage the national security.”

        • National security is being damaged. The Russians are laughing at us. Other nations think that we have a divided nation and chaos prevails. The Lib-Dems are more dangerous to our national security than ISIS. When are people going to start caring?

          • Complete non-response changing the subject. I assume you must now agree that Comey’s memos were never designated as classified, correct?

            • Wrong! The conversation was proprietary, sensitive, for official use only, and received in confidence. Just because it does not have a classified stamp on it (e.g., Top Secret, Secret, or Confidential) and is unclassified, does not mean that it should readily be released to an irresponsible press/media. It is still government property and government information.

              Much information accumulated from the open sources literature may be put together in reports in such a manner that would qualify it for a Secret classification. Just because information comes from unclassified sources does not mean that certain combination of unclassified information cannot then be qualified as classified. When I had served on active duty in the USAF and had Top Secret and beyond security clearance, I made decisions as to what information that I had prepared would be classified as Top Secret, Secret, Confidential, or Unclassified.

              • Okay, so you agree that his memos were unclassified. Good to know, thank you. Yes, if he had combined his notes with classified material in a report, I would agree that such a report would then be classified. Do you have any evidence that this was the case here?

                As I understand it, Donald Trump has yet to claim the conversation should be kept private due to executive privilege, and a number of legal scholars argue that he may have already waived executive privilege by publicly Tweeting about the conversation.

                A true conservative knows the danger of unchecked government power and acknowledge the important role that whistleblowers play as a check on government abuses.

              • That’s complete and utter nonsense. There’s nothing “proprietary” about a private citizen revealing that the president asked him to stop an investigation — then fired him as director of the FBI.

                You’re essentially arguing for investing the president with dictatorial powers. I suspect that’s not an accident.

  3. What do I think? I think it’s hard to take you seriously in the internet age when you use a serif font.

  4. […] The real bombshell (…) was that moment in the hearings when Comey, under questioning by Susan Collins, acknowledged that he had arranged for a Columbia Law School professor friend of his to leak a memo of his conversation with Trump about Michael Flynn to the NY Times. That memo apparently has not even been given to the Senate Intelligence Committee, and the leaking of which may put Comey himself in legal jeopardy. […]

  5. If you think putting the Clinton Crime Family from Arkansas back into the White House was a better outcome than having four years of Trump, you need your head examined.

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