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?
Oh, and something else that seems relevant:
https://www.youtube.com/watch?v=Jw6gwGawbXA
Squeeky Fromm
Girl Reporter
Might I suggest that those who think Comey is a “hail-fellow-well-met” sort of person, to let themselves take some self-defense advice, to wit:
Sooo, with that in mind, what is your initial thought if someone tells you that a head of the FBI gives his memo to a friend to sneak it over to the New York Times to be leaked. Forget the political party, and just go with your initial impression.
Is that kind of behavior normal? Ethical? Above board? Or do you get the feeling that something just ain’t right.
Squeeky Fromm
Girl Reporter
Nothing is right inside the Beltway.
Ought to be a sign at every entrance which reads “Abandon all sanity yee who enter here”.
Doesn’t it depend on what is being leaked? What if the leak is about a president molesting a child? Is it okay for the head of the FBI to give the memo to his friend then? Its not unethical to do something that might be made to sound sketchy to someone who doesn’t know all the facts
Sooo hypothetically, the head of the FBI leaks a child molestation case to a friend, so the friend can give it to the New York Times, so that the NYT can call the cops??? If it is something serious, why not just report it yourself, or call the cops yourself?
Squeeky Fromm
Girl Reporter
I think you are missing my point. Even if you had an initial impression that Comey’s conduct was unethical or wrongful somehow, that doesn’t mean that your initial impression is correct. Do you think what Comey did was wrong? I don’t. I didn’t at first, and I still don’t.
You could say the same thing about a well-reasoned conclusion. Just because you think through about something, that doesn’t mean that your conclusion is correct, n’est-ce pas??? Because what lawyer type person here couldn’t craft well-reasoned arguments why Comey was either a complete piece of crap, or a modern day Freddie Dreyfus, who also got in hot water over leaks.
What I am saying is, maybe sometimes, it is better not to overthink a thing, but just go with your initial response.
Squeeky Fromm
Girl Reporter
He also gave the material to the Justice Dept. Rod Rosenstein was kept informed.
I call that gut instinct Squeeky when I’m discussing natural rights. I believe when people have an important decision to make and they are not at peace with the one they choose, they are violating their own core principles. So if someone was watching Comey yesterday and were absolutely at peace with discovering he was one of the leakers, then that behavior aligns with your principles.
Would you agree Squeeky?
Yes, I would agree. Plus, I posted a clip from the Caine Mutiny yesterday, about how underlings can sabotage a leader. Which led me to this link, which you may like being an ex-Navy person. It is both funny, and enlightening, and if you are at work, you could just put it on in the background and listen to it. The TRUE story of the Caine Mutiny, from the guy who told it to Herman Wouk.
https://www.youtube.com/watch?v=WxsGl8dQnoM
Squeeky Fromm
Girl Reporter
I’ll do that, thanks Squeeky.
Ian the conversation between Comey and the President all’s under Executive privilege. Comey does not have the right to leak it without the Excutive permission. For example had the President choose to invoke Excutive Privilege Comey would not have been allowed to testify specifically to any of their conversations. Very similar to former administration officials, military etc that wish to write a book about their experience in that department. Comey is acting like a scorned woman with an axe to grind any agent would have been fired and most likely prosecuted.
First, Trump waived executive privilege when he starting making statements about the conversations. If the president lies to the American people about a conversation then there is no privilege. The purpose of the privilege is not to enable president to lie.
Second, I think the “woman scorned” label doesn’t work for Comey. The old line is “hell hath no fury like a woman scorned.” But he didn’t seem furious in the hearing. He seemed totally in control.
Hey Commie/Nazi Comey, Loser, you look like Ms Winner currently to the American people. If the Cuffs & the Charges are good enough for her they are good enough for your Treasonous Azz! LOL.
“NSA Leaker Reality Winner “Wanted To Burn Down The White House”
On Thursday afternoon, Reality Winner was indicted by a federal grand jury on a single count. She entered a not-guilty plea before the judge denied bond. Based on evidence seized from her home, federal prosecutors detailed Winner’s alleged plans “to burn down the White House” and travel to Afghanistan, pledging her allegiance to the Taliban. ”
http://www.zerohedge.com/news/2017-06-08/nsa-leaker-reality-winner-wanted-burn-down-white-house
What a gift the American hatin Trash Commie Comey gave to the American people and Pres Trump yesterday.
We’ll all see soon if he has the leadership ability I think he has.
Few things in life I’ve ever seen clearer.
Trump, Take all the Commie/Nazi American Hatin Trash out Right Here, Right Now.
MAGA
Great minds discuss ideas; Average minds discuss events; Small minds discuss people.
Eleanor Roosevelt
For those who continually obsess with discussing only the last element, you might want to consider further self-enlightenment by expanding your world. It does become tiring to only hear braying furors of complaining about individuals and not contributing anything substantive or imaginative for discussion.
*claps hands*
Awesome!
Soap opera.
OK. It’s time.
Huma, calm Hills down and break the news to her gently.
____________________________________________
NEWSFLASH –
IT’S NOT A DREAM – IT’S NOT WATERGATE –
IT’S NOT A CONSPIRACY – IT’S NOT “FAKE NEWS.”
HILLARY, YOU LOST!
IT’S OVER.
BUH BYE!
All this senate investigations is a waste of taxpayers money just because Hillary and the demos lost. Get over it and let’s move on as a nation. LET PRES. TRUMP MAGA 🇺🇸🇺🇸🇺🇸
Even the Mad Hatter’s Tea Party makes more sense.
I’ll let the legality of what occurred today to you attorney’s. As a citizen of this nation this entire attempt to connect a duly elected President with Russian collusion without proof and those investigating knowing the man is innocent is the biggest black eye on our nation. Good God attempting to bring down a President with lies. Collusion, let’s look closely at the media and the left. What’s been going on is no joke it’s flat out dangerous. Comey admits the media was flat out wrong.
You say there’s an attempt to bring down a president with lies as though that hasn’t been going on everywhere for decades. Trump’s birther stuff certainly fit that description. This “good god” reaction makes it sound like you started paying attention to politics five minutes ago
Yes concerning Obamas birth status, there was FBI investigations, never ending congressional hearings, never ending leaks from government sources, special counsel, and major news outlets breathless daily reporting. Are you paid to respond with such frivolous nonsense, are you argumentative for sport, or just idealogically blind?
The Congressional hearings are not an attempt to bring down the president with lies. Nor is the FBI investigation. You are assuming that Russia didn’t meddle in our election but I think they did so we need an investigation. The idea that we shouldn’t investigate when so many serious people are raising alarms – I don’t get it. Shouldn’t we know one way or the other?
I totally agree with you.
Jeso. Where is all of this Comey apCray going? I was watching CNN and Fox all night on this set of topics and it is goofy. Most people cannot follow all the dribble. I cannot.
Maybe Trump should resign and we should elect the Pope. Or someone high and dry.
Most Popes are dopes though.
But they don’t smoke or chew.
Not the pope, he is blatantly a socialist…I prefer the current president.
You prefer a blatant fool?
Trump systematically took out 16 other candidates including Jeb Bush and then beat Hillary Clinton to make it into the White House. That is not something ‘a blatant fool’ could ever accomplish. You can call Trump a lot of things, but ‘blatant fool’ is not one of them.
This guy should be prosecuted to the fullest extent of the law and his accomplice at Columbia! These peces of S do not belong no to a country of laws!
Thank you Mr Turley for your erudite analysis as always.
Only people not intimate with those who control the established political order are subject to indictment and possible prosecution… unless they can be proven to associate with Trump or his people.
Have we learned nothing since 2008..?
Mr. Comey did what he thought would benefit his ego. Nothing more. He is not trustworthy.
It it my understanding that Comey has never lied about anything to anyone ever. Is that correct? I mean, might as well check the record before we start talking about “ego” to explain why someone might not be trustworthy. He probably has a big ego but that can be good in an FBI Director.
“He probably has a big ego but that can be good in an FBI Director.”
It wasn’t good for J. Edgar Hoover and those he destroyed to feed his “big ego”.
Its true that having a big ego can also be a bad thing. I wonder if there is any correlation between the size of a person’s ego and the extent to which they do terrible things. I suppose Hitler probably had a massive ego. Luckily, Trump is a model of humility.
Godwin’s Law.
Not sure where you have sourced “your understanding”. During Comey testimony today it became clear
that when Loretta Lynch asked him to use word “matter” instead of “criminal investigation” by the FBI,
he used the untrue word “matter”. That technically can be viewed as a lie.
All right so there’s an example of him participating in a misleading choice of words. So now my understanding is that he has never lied about anything ever to anyone, except he used the word “matter” instead of “investigation.” Is that it? Any other examples? I hope the impeachment of Mr. Comey’s credibility will not rely exclusively on that.
Brilliant analysis
Turley and Dershowitz seem to be the only level headed legal experts in this matter. And this article is very well thought out and presented. What Comey did by leaking was petty and childish, and demonstrates why he should have been fired. He put himself ahead of the country.
All of this goes on, yet the Clinton beast and her husband, who took tens of millions from the dreaded Russians, are strangely immune to any investigation or consideration… regarding collusion or obstruction.
And people wonder why we do not trust the pigs.
Excellent comment. Although I am a conservative, I respect and admire the legal stance these two have taken on all politically driven issues the past two years. Both Dershowitz and Turley are Liberals, in the vein of Obama – yet they have never let their politics void their understanding of the Constitution or the Rule of Law. They have been the beacons of sanity during all of this mess.
I agree. I have always valued Turleys ability to put law over politics.
Dershowitz? hahahah! http://www.lawyersgunsmoneyblog.com/2017/06/speaking-senile-hackery
Dershowtiz? hahahah! https://www.vox.com/2017/6/8/15761962/james-comey-testimony-donald-trump-fbi-congress-russia