One 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.
Notably, 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?
Comey’s memos are just recollections of what transpired in his meetings with Trump.
It seems weak to call them “government documents” just because they were typed on an FBI computer.
If he had used his own computer, or handwritten them, or just reported them verbally, would they still be considered “government documents”?
It’s also a stretch to assume that conversations between Trump and anyone else are automatically “confidential” just because they are in private.
What is confidential and/or classified depends on its content. It seems to me that comments that are potentially criminal cannot be considered either of those, except if they are with a lawyer or are otherwise made in what is understood to be a legally confidential situation.
If Comey wanted his memos to remain private, he should never have taken the job as FBI Director.
That is an absurd non-argument.
Have you ever heard of a G.I. as in the G.I. Bill?
Comey issued the memos referencing governmental activity
and as a governmental employee and
the memos are Government Issue property.
“Will no one rid me of this meddlesome priest?”
Excuses are like posterior orifices; everybody’s got one.
Comey cannot legally consider Trump’s expression of a “hope”
to be a direct order without being a criminal himself.
The FBI Director reports to the AG and is required to know
the difference between debate/conversation and legally binding orders.
Preposterous!
Ms. Winner is looking at serious Federal charges. Why is Mr. Richman not?
Cuz he’s a shyster who knows how to walk right up to the line without crossing it. In any case, laws are for little people. Prof. Richman is well-connected. The Regime’s prosecutors want dissenters like Conrad Black for their scalp collection, not members of their academic section.
https://twitter.com/seanmdav/status/872913600993783809
Trump tweets that Comey better hope there aren’t any ‘tapes’ of their conversations before he starts leaking. Clearly Trump suspected Comey was leaking.
Comey then gives one of his CYA ‘memos’ to a friend to leak to the press.
Congress is requesting to see the memos to no avail.
Comey shows up to testify knowing what is in ‘his’ memos that no one in Congress has seen.
No one but Comey knows what is in his memos.
Trump dangles ‘tapes.’
Comey dangles ‘memos.’
Leverage.
Consider that the actual FBI memo was not shared but the information of the conversation was provided the channels to make it to the NYT. The case against someone sharing their side of the story after Trump aired him out via the Lester Holt interview and Tweeting is a tough one to make stick.
I tend to think Comey is not walking headlong into this like Reality Winner. 😀
https://twitter.com/seanmdav/status/873175802753449984
It does appear that Comey has been breaking laws since he was first installed as the head of the FBI! I would like to see him pay for some of his corrupt practices, of which there seem to be many.
Maybe Trump will have him prosecuted. I doubt he would have the courage to try it, but maybe he will. We’ll see
Is there even a will and a determination to prosecute Comey? Who, in his or her right mind, would be willing to demand–publicly–and relentlessly pursue a criminal investigation of Comey, knowing, full well, that doing so–that being the face behind the pursuit to do so–would, undoubtedly, incur the wrath of not only Comey but also the fury of his fellow cohorts still entrenched in the FBI? Imagine, if you will, the sudden and unexpected revelations regarding the girlfriends, boyfriends, girlfriends and boyfriends, any variety of sexual escapades, financial misappropriations. . .uou name it. . .which the senators, who cross this guy through demanding his investigation and, ultimate, prosecution, will suddenly face. You saw the fear, of just such a thing, evidenced in the mild, tame and softball questions lobbed at the stoic Paul Bunyan yesterday. The failure to squeeze this guy, like a pimple, and make him answer the tough questions. Comical, if it weren’t so depressing. Either these senators were too incompetent to do so or they were too frightened to do so. I suspect that it was a mixture of both.
Too bad Trump is powerless to make things better. So much for the revolution
The weasel said he didn’t contact the Times directly “for a variety of reasons.”
Too bad no Senator had the nerve to ask him to cite those reasons.
Comey Commie purjured himself with the LIE that AFTER waking up at night he “leaked” the “memos”.
https://www.nytimes.com/2017/05/11/us/politics/trump-comey-firing.html
Yeah, in addition to his other flaws he is a 6’8″ drama queen. What a spectacle.
https://pbs.twimg.com/media/DB67lXpXYAM9cjy.jpg
And Trump responded:
And if I may and if I might!
I’ll pee on Himmler on Friday night.
Fifty dollars make em pay.
Dems for Hillary every day.
Comey leaked on Trump. A
And he said as he was doing so:
And repee after me:
I swear allegiance to the holy flag of the United States of America.
And to the Republicans for which its stands.
O U T spells OUT and Out You Go!
Kokomo.
👎. Not even close.