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?

 

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

  1. Obviously, Comey lied to Trump when he said that he would be loyal, but more importantly he engaged in very questionable behavior by leaking, and the time sequence of Trump’s Tweet and the Times story do not add up. So it appears that Comey has possibly broken the law, certainly acted dishonorably by leaking instead of revealing it himself and apparently is either confused or lying about his reasons for the leak. Not good for him.

  2. Once again we get to see a Washington insider, James Comey in particular, use the legal elite’s custom designed, minutiae filled schematics of the existing system to combat any external threats to their own existence.
    It’s like cancer having nuclear powered white blood cells.

  3. Truth Revolt

    Comey Admits He Leaked Trump Memo to Media Through Intermediary

    And the media are deafeningly silent about that.

    6.8.2017 |

    While the mainstream media are focused on spinning a negative outcome for President Trump following former FBI director James Comey’s Congressional testimony Thursday, they are missing two very important bombshells.

    First, Comey admitted that he leaked the content of a memo detailing a private conversation with Trump, to the media through a friend and intermediary, Columbia law professor Daniel Richman. Comey hoped the media coverage of the memo would catalyze the appointment of a special counsel. The AJC summarizes Comey’s damning remarks:

    Dismissed FBI director James Comey admitted during congressional testimony Thursday that he orchestrated the leak last month of a memo that detailed private conversations he had with President Donald Trump.

    The memo was cited May 16 in a New York Times article that revealed Comey felt Trump pressured him to drop his investigation into former national security adviser Michael Flynn.

    Flynn was forced to resign in February, 24 days into his appointment, after it was revealed that he lied to Vice President Mike Pence about conversations he had with Russia’s ambassador to the U.S., Sergey Kislyak.

    Comey said he decided to share his memo through another party after Trump wrote days after Comey’s abrupt dismissal that “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press.”

    “I woke up in the middle of the night on (May 15), (because) it didn’t dawn on me originally that there might be corroboration for our conversation — there might be a tape,” Comey said. “My judgment was (that) I needed to get that out in the public square, so I asked a friend of mine to share the content of the memo with a reporter. (I) didn’t do it myself for a variety of reasons, but I asked him to because I thought that might prompt the appointment of a special counsel. So I asked a close friend of mine to do it.”

    Comey said he leaked the memo to the media through an unnamed friend. Columbia law professor Daniel Richman confirmed that he was in fact the go-between:

    Comey said he decided to use a go-between because he was worried about the increased media scrutiny the memo was likely to bring.

    “The media was camping at the end of my driveway at that point,” he said. “I was actually going out of town with my wife to hide, and I worried that it would be like feeding seagulls at the beach.”

    In the memo leaked to The Times, which was not shared in-full with the newspaper but instead summarized for reporters, Comey detailed a Feb. 14 meeting he had with Trump in the Oval Office. Flynn resigned Feb. 13.

    “I hope you can see your way clear to letting this go, to letting Flynn go,” Trump said, according to the memo. “He is a good guy. I hope you can let this go.”

    Meanwhile, Comey also admitted that former Attorney General Loretta Lynch asked him to publicly refer to the Clinton investigation as a “matter” rather than “an investigation.” Though the media aren’t covering that one, either.

  4. I think Comey has damaged himself.
    He portrays himself as a boys scout and everything he does is perfect.
    Not so.
    The fact that Trump is not under investigation was never leaked.
    Leaking privileged communication with President, very unprofessional. If he knew that there was going to be a Special Counsel he should have waited.
    He said he didn’t like Trump from the beginning, had to record notes because of who Trump was. But their first meeting was when Comey told him about the Dossier. Trump, I am, sure was very upset.
    Comey feels guilt about Trump winning. So his motives are suspect.
    Comey should feel guilt about letting Clinton off the hook and of the way her criminal investigation was handled.
    He’s a problematic person and no longer deserves to be FBI director.

  5. Good analysis. I agree with prof Turley. Comey should be held accountable for his violation. After all he is the one who so sanctimoniously worships every protocol when it is convenient for him. Personally I think he is a corrupt dirtbag.

  6. So now Trump’s new FBI director has a task to arrest and prosecute Comey and his buddy, a lawyer for leaking Government documents. Interesting!

    1. What crime is committed by leaking this document. Not classified. Not a work product. Not a government record. Most of the accusations of crimes in the past have been based on the fact that the leaked information has been classified. And executive privilege only prevents legislative and judicial branches from compelling disclosure, is irrelevant to voluntary disclosure. It exists to allow people to protect people so that they fell comfortable giving the president honest unvarnished advice. This is not impacted by voluntary disclosures.

      1. A memo regarding an official meeting between the President and the FBI Director is certainly a “government record”.

  7. I assume Comey was high enough up that if the documents had been classified, he had the authority to declassify them. But that’s just a guess.

    I’m pretty sure he and his Columbia Law School professor co-conspirator discussed the legality of him reading the document to the New York Times and they both felt doing so did not expose them to legal liability.

    Nobody in the Trump administration is going to give Comey the “big fish” immunity that he gave HRC. Therefore, he is relying on a legitimate, real defense of some kind. If it is not that the docs were either unclassified or declassified, it is something else.

    1. You mean the Columbia Law School professor who has gone into hiding ? I suspect he thought Comey was not going to admit to what they did.

  8. One does get the impression about Comey that the man’s habit of careerist scheming is so thoroughly ingrained that he couldn’t be straight with anyone if he wanted to be.

    I’m recalling this exchange between John Dean and Sam Dash, majority counsel to the Senate Watergate Committee, in executive session.

    Dean: ” Redman’s more likely. Also, Redman would not lie to you. He wouldn’t want to risk losing…”

    Dash: “Would Butterfield lie?”

    Dean: “No. Never. Butterfield’s a no bulls*** type guy. You ask him, he’ll tell you…”.

    Mr. Butterfield, who was FAA Administrator in the Nixon Administration, was born in 1926. “No bulls*** type guys” were a good deal more common in that cohort than they are today.

  9. There is a clear delineation between classified information, which never be leaked, and unclassified information which can be released at will. There is no one here who could possibly be more qualified than Comey in distinguishing between the two.

    1. Just as Comey seems to be competent to discern intent; he has such an unimpeachable record.

      Comey is a vindictive little b—h, and barely competent in reading law, besides. He needs to be prosecuted for theft and disclosure of government documents, as well as for his clumsy perjury. Then he needs to be disbarred. Maybe he’ll be able to get a job shoveling excrement or flipping burgers.

    2. Comey’s qualifications are very questionable. He should have joined the OJ defense if he wanted publicity. He loves to talk to the media and loves all the attention while US citizens are attacked by terrorists and criminals roam the country free. This includes Hillary.

    3. Wrong. Comey does not have the right to determine what can be released and what can not be released. He works for the Justice Department and that is their decision. Sorry. Please try not to make up things simply because you believe them to be true. This isn’t a church and what you believe doesn’t matter. Only the facts.

    4. Memos generated while working in a official capacity are public records. Comey conveyed a public record without authorization. By your logic, IRS agents could release anyone’s tax returns to the public without any penalty.

  10. Comey asked his friend to share the contents of his memos after Trump went public with Lester Holt, after Comey’s dismissal, and described his version of his meetings with Comey. So what ever “executive privilege” Trump might have held with respect to his private conversations with Comey, he waived it.

    1. Ok. But Comey and his friend violate laws of disclosure. Jail time.

      I think Trump is playing everyone and keeping them busy with issues that don’t hurt him. As for Flynn, as a President he can commute his sentence the minute it is read.

    2. It’s not a question of executive privilege, it’s whether Comey conveyed a public record.

  11. You have to regard this stew of trouble with dismay. We got to this pretty pass, however, due to the decay of a sense of professionalism in both the legal profession and in the media and due to a decay in any sense of patriotism and public service among elected officials. The social nexus in and around the Democratic Party will not own up to it, but they have been almost entirely responsible for this.

    It’s no accident that people speaking against type on these matters tend (like Alan Dershowitz) to have come of age in a time now distant from us.

  12. I think our country is being run by a cabal of traitors. Getting a special prosecutor appointed to remove them from power is a pretty useful thing. As for the memo, Comey was free to talk about its contents and about the meeting in question. What is lost from making the memo itself public?

    1. It’s not rocket science. That’s evidence being used by the Special Prosecutor who ordered it and any classified information witheld to a closed meeting or with held from the Senate entirely as part of an ongoing criminal investigation …..which now leads to Lynch, Clinton and the Pay For Play Gang.

  13. “It was clear at that time that a Special Counsel was likely. “. Just curious- how do we know that?

      1. For what. Turley’s piece is a joke. He clearly was deliberately trying to deceive his audience.

  14. Wow. Lots of speculation. Must be a gossip column for lawyers.

    1) The “memo” would need to be related to an ongoing investigation. Comey said Trump was not under investigation.

    2) The 302 form was leaked to his lawyer. There is no evidence that this happened. Conversations between a lawyer and a client are perfectly legitimate. Many lawyers use the court of public opinion.

    3) 18 USC 641. Every time Sean Spicer speaks he conveys something of value to the government.

    4) Classification. The department generating information is responsible for its classification level. The author assumes every document produced is locked up in safe or stored in a SCIF. This is not the way the world works.

    No court in the land would convict this person based on the information at hand.

    Two good things have happened. Comey is no longer director and the FBI will reassert its independence.

    1. Comey did not describe the professor as his lawyer. The professor describes himself as an advisor.

      1. I am so fascinated by this – however, just so I do not get too much hope built up, is there ANY chance there are earlier tweets that might apply?

      2. A mistake is not perjury. We have plenty of evidence that Comey gets details wrong quite often.

      3. Actually the story on the 11th was corroborated “according to two people who have heard his {Comey’s} account of the dinner.” not by the leaked copies of the documents which were referenced in the media for the first time on the 16th – four days after the Trump tweet.

        1. But did Comey expect those 2 people to leak to the press. There seams to be a pattern here.

      4. Trump suspected Comey was a leaker and he was right. He called him out in his tweet.

    2. I’ll just start on your first point which is 100% fabricated. In other words it is a lie. It does not need to be related to an ongoing investigation. The government may declare tomorrows lunch menu classified if it so desires and leaking it then becomes a crime. Again your first statement is a lie.
      Also since he used a government lap top in a government vehicle (which he stated but in different words) the memos do not belong to him. They are the property of the Federal government. Therefore he has no right to release them to anyone.
      Oh and Comey also made another interesting and damming statement. He said that he took what Trump said about the Flynn investigation as a directive. At least he says that now, but if that is the case then by not following it, he was being insubordinate which is another cause for his firing. He also did nothing to inform his superiors, The senior management team of the FBI are not his superiors, they are actually his subordinates, which means he violated additional federal statutes.
      My, my. How is it such a brilliant person can incriminate himself so frequently in just a few hours and under oath. Perhaps he and the rest of our government officials aren’t nearly as smart as we we’ve been led to believe. After all the youngest, dumbest street thug knows not to incriminate him or her self. Apparently, Comey missed that day of law school.
      Geez… Stupid is as stupid does.

      1. Interesting that a person would say Comey is stupid for telling the truth, ptesumably because it hurts him, while he is….wait for it…under oath.

        Comey did what he thought was in the best interest of our country. If he suffers consequences, I’m sure he will be able to handle them. Look at it this way, if he was a liar, he would have either refused to answer questions where the answer may not make him look perfect, or he’d answer it in such a way that nobody would be able to know one way or other what the heck he said in response, or meant by it. Like the politicians. But alas, he’s not a politician, he’s an honest man.
        He may have incriminated himself of something, but I think we all know there is a lot at stake, like the best interest of our country.

    3. At-law, Comey’s “friend” was a de fact agent in leaking the information on Comey’s behalf. In reality, his friend was also his media liaison. The FBI employs agents in its Field Offices for “media relations”, so his friend played a role similar to that salaried agents do. The Sean Spicer argument is ludicrous because he has inherent authority, based on his position, to make statements on behalf of the Trump Administration. His friend also functioned in the role of attorney by keeping the record he leaked, a record Comey stated that he no longer was in possession of- sounds like a consultant/lawyer type of relationship.

    1. Yes and it’s nice that Comey helped get that particlular complaint back on track which means the trail from his pointing fiinger to Lynch and Yates and Clinton to the informatioin pipeline to the former bosses of the Soviet Union ( that’s your Russian Connection). No really being nice but he gave Lynch and Company a Paybacks area mother feather piece of skillfully inserted and well deserved revenge.

      For the third time and the stupid party still hasn’t figured that out.

      In any case that whole sordid episode covering the former AG and Asst AG, Clinton as SecState and their staffs, Clinton as the individual who commited National Security felonies and the staffs of her personal and campaign committee, the DNC and it’s Campaign Commitee and their staffs

      Whose going to turn state’s evidence first?

      Not to mention that stilo ongoing investigation but add in the nation of Bangla Desh has filed charged for her strong arming them while Sec State ….for money.

      So yes it’s nice to see that victimizer of women and her gang of victimizers once again in the crosshairs of not just an investigagion but a Special Prosecutor Investigation.

      Probably not the effect that Bacon’s programmer wanted but the stupid is as stupid does.

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