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?
Jail time for
Comey
Lynch
Clinton
Holder
Rice
Powers
Clapper
Comey is six foot, eight inches, tall. . .those orange jumpsuits are gonna to be mighty short on him. . .the boys are gonna love getting a glance at those gams. . .
Comey may well be seeking a plea bargain in the future where he is more forthcoming on the Obama administration’s obstruction of justice and misuse of government agencies to surveil, harass, stro by arm, and blackmail politicsl opponents.
Did anyone in the administration unmask the identity, to the Clinton campaign and/or DNC, of the Democratic insider working at the DNC who Wikileaks said provided the DNC emails.
One might be tempted to exclaim at this point “Why at this point does it MATTER?”
Comey is a DC bottom feeder. Pretending to be ethical he knuckled under to Obama administrAtion. Leakmonce ,leak twice? Are we supposed to believe that he was concerned about other leakers?
I never had a good opinion of this primitive character , so this just proves what I had thought of him , no surprises for me .
On obstruction of justice, it’s a close call. As usual, anything Trump declares publicly has a way of coming back to bite him. But this is no Archibald Cox/Watergate case. That involved a real crime, with real criminals. If the Russian investigation concludes with no clear charges, obstruction of justice is a dead end. Namely, if there was nothing to hide anyway, Trump has a credible explanation for firing Comey.
You wrote:
“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.”
He just joins the other former director leakers, Brennan and Clapper. Drain the swamp
The term “swamp” is so accurate.
Wonder if the agents that interviewed HRC, Huma, Cheryl Mills, Brian Pagilano wrote personal notes they would like to “LEAK” now that Comey has set the precedent? Afterall, management “models” for employees.
I love Comey’s outrage about the Russians, but Obama’s group tried to interfere in Israel’s Elections.
When he and everyone agrees Trump could fire him for any reason or none at all, his repetitively opining “he was thinking of the Russian investigation” reeks of self serving hubris; he knows Trump’s intent was to have it over and behind him, yet he leaves that ambiguity hanging every time it comes up. So what if the convenient route was to act on the recommendation of the DAG; Trump readily admits he’d’ve fired him anyway — he’s the only one being honest. Under the circumstances, for being a nut-job is as good a reason as any.
1. The use of an FBI computer is not dispositive. It depends on Bureau rules. I work for a Federal agency and we have a “limited personal use” policy for our laptops. I did much of my homework for night classes using my govt issued laptop.
2. There was no executive privilege asserted by Trump at the private meeting, so that’s out.
3. The important question is whether the memo created by Comey belonged to him or to the government. It’s a close call. Comey was invited to the dinner, after work hours, at the White House. He was not on official assignment. On the other hand, official business was discussed, and he felt it significant enough to immediately memorialize it. I’d have to say the memo was govt work product.
4. The memo isn’t covered by attorney-client confidentiality because Comey (although he is a lawyer), doesn’t have a lawyer-client relationship with Trump.
5. Would Comey be protected by whistleblower statutes? No, not under the SCOTUS ruling in the Garcetti case. Giving a govt document to the press or to a law school professor is not protected because neither of those have the ability to effect change. If Comey gave the memo to Atty Gen’l Sessions, and was then fired in retaliation, he could sue under the WB protection statutes.
POTUS intended the meeting be private and had repeatedly said No leaking. How could Comey assume that a memo on a deeply troubling topic, meant to spur special counsel appt, would not be a document to which exec privilege would not attach?
How could Comey leave those discussions without full understanding, true meeting of the minds? How could he use his crystal ball to avoid reporting what possibly might’ve been obstruction? The justification that he was sure of a superior’s Future career plans had no bearing on whether Comey might avoid compliance with duty to report suspicion of obstruction.
Almost immediately after Comey was fired, there was a call for a “special prosecutor”, coming from numerous Legislators, from both sides of the aisle. For Comey to then claim that, three days later, he gave his professor friend the memos, for him to, in turn, over to the media, in order to assure that a special prosecutor is brought into play, does not, in any way, sound plausible. In fact, it has all the markings of a lie – pure and simple.
The legal definition of a government record taken from 44 USC Chapter 33 is. It must be a
“transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government or because of the informational value of data in them”
I don’t see this memo as being about the organization, function, policies, decisions, procedures or operations of the FBI as required. And it’s government policy that each individual government employee is responsible for deciding whether something qualifies as a government record. So no, not even a close call that this is a criminal offense.
As far as Turley’s attempt to deceive that this might be an investigatory document, he gives the game away with the use of the word like in the following quote. “They read like a type of field 302 form,” Something that is like something else is by definition, not the something else.
Why do facts matter if you can get the blood of the Trump brigade pumping.
Oh and I just noted, again from 44 USC Chapter 33, a government record
“does not include —
(i) library and museum material made or acquired and preserved solely for reference or exhibition purposes; or
(ii) duplicate copies of records preserved only for convenience.”
Don’t see how point (ii) doesn’t categorically exclude this memo from the definition of public record.
government, not public
Time to prosecute Comey for the leaking of a classified document. Ten years and $5000 for each offense, in addition to the loss of his license to practice law.
Maybe Trump will be so kind as to pardon him.
Dirty cop. Arrest him. Now.
Here’s my suggestion for an appropriate song:
Well, I don’t know why I came here tonight
I got the feeling that something ain’t right
I’m so scared in case I fall off my chair,
And I’m wondering how I’ll get down those stairs
Clowns to the left of me, jokers to the right,
Here I am, stuck in the middle with you
Yes, I’m stuck in the middle with you,
And I’m wondering what it is I should do
It’s so hard to keep this smile from my face,
Losing control, and I’m all over the place
Clowns to the left of me, jokers to the right,
Here I am, stuck in the middle with you
Well, you started off with nothing,
And you’re proud that you’re a self-made man
And your friends they all come crawling,
Slap you on the back and say,
Please, please
Trying to make some sense of it all,
But I can see it makes no sense at all
Is it cool to go to sleep on the floor?
‘Cause I don’t think that I can take anymore
Clowns to the left of me, jokers to the right,
Here I am, stuck in the middle with you
And you started off with nothing,
And you’re proud that you’re a self-made man
And your friends they all come crawling,
Slap you on the back and say,
Please, please.
Yeah, I don’t know why I came here tonight
I got the feeling that something ain’t right
I’m so scared in case I fall off my chair,
And I’m wondering how I’ll get down those stairs
Clowns to the left of me, jokers to the right,
Here I am, stuck in the middle with you
Yes, I’m stuck in the middle with you
Stuck in the middle with you
Here I am, stuck in the middle with you
Written by Gerald Rafferty, Joe Egan • Copyright © BMG Rights Management US, LLC
In a sense Trump was Comey’s new patron, but if he didn’t trust Trump then he couldn’t be trusted by Trump, so thank goodness Trump was perceptive enough to root him out early on. Someone asked an important question; after reminding him he had a history of offering his resignation on principle, he was asked whether he’d contemplated resigning? No. So it just feels like he intended to be part of the “resistance” from day 1, to among other things: slow walk an investigation Trump needed speeded up (so as to be personally exonerated even if bad actors might be found); and allowing the damaging public perception that Trump was a target to unnecessarily persist. If he’s right and the loyalties at the FBI are like his (to the “resistance”), then Trump has more rooting out to do.
So many to root out. How do we trust the FBI when the acting director McCabe said “First we F… Flynn then we —– Trump.”
“In a sense Trump was Comey’s new patron”
That’s flat out wrong. The whole point of the 10 year tenure of the FBI director is to make that not true. Further, the tradition is that the FBI director can only be fired for cause and owes no loyalty to the president.
The fact of the matter is that the FBI Director could have been fired by Trump, for ANY reason, deemed justifiable or not.