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?
Yes, he broke the law. I love how he palmed the work off on his supposed “friend”. Gutsy!
Reality has been charged. Why not Comey?
Also, look how easy it was for Comey’s “friend” to just walk over to the times and hand over the memo. Most leakers risk everything. Not Comey and not even his friend.
Wikileaks calls Comey an intelligence porn star. I think that about sums it up!
https://twitter.com/blakehounshell/status/873139010784440320
It is a leak if you’ve signed confidentiality statements and used government assets to acquire, record, and release privileged information. Comey did not have Trump’s permission to publicize specifics of their meetings.
“Here is my position on that: Frivolous grandstanding,” he said. “First of all, I don’t believe the inspector general would have jurisdiction over Comey any more, because he’s no longer a federal employee.” The inspector general’s job is to investigate wrongdoing by employees of the Justice Department, of which Comey is no longer, thanks to Trump.
“But, second,” he continued, “initiating an investigation because you don’t like somebody’s testimony could be considered obstruction. And in the whistleblower context, it’s both evidence of retaliation and, under some laws, could be an adverse retaliatory act itself.”
In other words, Comey, here, is an employee who is blowing the whistle, to use the idiom, on his former boss. That boss wants to punish him for doing so. That’s problematic — especially if there’s no evidence that Comey actually violated any law that would trigger punishment.
https://www.washingtonpost.com/news/politics/wp/2017/06/09/theres-no-indication-comey-violated-the-law-trump-mhttps://www.washingtonpost.com/news/politics/wp/2017/06/09/theres-no-indication-comey-violated-the-law-trump-may-be-about-to/?utm_term=.53ee671a7054ay-be-about-to/?utm_term=.53ee671a7054
I think you’re reaching way too far. There is no evidence of collusion or obstruction by President Trump. However, by Comey’s own testimony he indicted himself. Comey admitted that he passed on info to a College Professor friend to leak it to the press. Funny but the only meetings he made notes on were with President Trump. Never with Obama, Clinton or Loretta Lynch. And two weeks ago he stated that he always took notes after any meetings with the White House or White House staff .And my God, here he is at the time head of the FBI and says was afraid. Good riddance. He should have never had the job to begin with. Oh how the mighty have fallen.
Blake, You are grasping at straws. Comey was not a private citizen when he prepared the notes of his meeting with the President, he used government property and time to prepare the notes and he leaked, yes he leaked information which is problematic and could have violated privacy laws. I’m sure there will be an investigation of his actions. This is especially egregious given the conversation was with the President. When I was in business I routinely “memorialized” conversations with clients for the purpose of sending my notes to the client in order to assure my understanding of the conversation was correct and asked the client to review my comments to assure we had a meeting of the minds. In Comey’s situation he did not share his notes with the President or even his superiors in the Justice Department. Comey may attempt to take refuge under the “Whistle-blower statutes” but he has proven in public that he can’t whistle and tell the truth at the same time.
see above link to Washington Post. You people are delusional.
What was he trying to whistle blow when there is no evidence or even circumstantial evidence against the president. What comey did is pointing to criminal intent.
“Did Comey Violate Laws In Leaking The Trump Memo?”
From what’s referenced? No. And it doesn’t really seem close.
18 U.S. Code § 641 appears to be a statute directed towards embezzlement and similar offenses. While it might work fine in procurement fraud and other rip-offs of the government, applying it here seems to be a bit of a stretch without some sort of quid pro quo.
Other insinuations appear to touch on some sort of attorney/client relationship with Trump. I’m not sure how the Director of the FBI is the President’s attorney (or is even acting as anyone’s attorney in his capacity as Director), but, if there is a rationale for such a relationship, it’s not laid out here.
Statutes regarding classified material generally require that the information is, um, classified. There’s no evidence for that here other than allusions that the material might be “confidential,” but how the information would be “damaging” to national security if made public is, again, a bit of a stretch.
As to Comey’s failure to “clear the release of the memos with anyone in the government”: he did. Well, at the very least, he cleared it with the Director of the FBI.
Weak, cowardly leaker.
https://twitter.com/JohnTDolan/status/872999188052815872
“Maybe, if I was a stronger man, I would have.”
https://twitter.com/veraangie11/status/873047408921399297
Comey is a liar. His rehearsed description of waking up and remembering the memos is an obvious lie. The presidents lawyer has already shown that the leak was before the tweet.
Comey was not asked if this was his only leak. The only thing not “leaked” was that the President was not under investigation.
Comey made a big deal about Hillary’s lack of intent was the reason he wouldn’t prosecute. Comey’s intent was to use privileged information to harm the President.
Give Trump a lie detector test.
Comey, was spectacular, yesterday.! Concise, to the point. Infinitely CREDIBLE.
When, have we ever seen anyone of that caliber answer questions before.
Such perception, is quite unusual in men. He nailed The Orange One’s character.!!!
Didn’t TRUST him… BOY, DID HE GET THAT RIGHT.!!
Don’t trust Comey? Wow your right
Put Trump under oath and let’s see what he says.
Guiness— You have nearly as high an opinion of Comey as Comey has himself. Not quite, but you’re working on it.
There is some very good comments here but I don’t think that anyone has mentioned Executive Privilege. Granted this is a fluid area of the la but one thing is certain the privilege does not belong to Comey it belongs to Trump. I do not believe that anyone can dispute that a private conversation between the FBI Director and the President is not a privileged conversation regardless of what they were discussing but especially true in this instance when they were discussing matters specifically related to an investigation involving the Executive Branch. This precedent goes all the way back to Jefferson and the Burr Conspiracy. Only the President can waive that privilege and since that never occurred here Cokey no doubt violated his ethical duties as a lawyer. This violation not only calls into question his credibility but suggests something more ominous regarding the underlying motive for even leaking this information in the first place. The idea of setting the record straight to protect the so his ethical reputation from defamatory statements is hogwash. First, Mueller would get the memos anyhow. Second, they would likely come out in his report with or without finding of criminal conduct by Trump or others in campaign.
Besides Executive Privilege is the question of who owns the Memos the Government or Comey? I suggest that the answer does not hinge on what device they were created or how they were created, the answer arises from the fact that they were created by Comey in his official capacity as FBI director concerning a subject matter related to ongoing investigations about the Executive Branch and these documents memorialize his thoughts, concerns and observations regarding possible evidence that could be related in some fashion to those investigations. In fact he admitted just how deeply the memos were connected to ongoing FBI work when he stated he met with and discussed the substance of his conversations with high level personnel in the FBI. Thus, I believe that the memos are unquestionable confidential and classified regardless of Comey splitting hairs about their creation. In fact his loosey goosey reasoning sounds remarkably similar to HRC’s story about why her private emails were not classified. So much so that one could get the impression that it was Comey and not Lynch who came up with the whole “matter” vs investigation concept.
So I believe that Comey was well aware at the time this information was leaked that he was violating not only ethical duties but was looking likely committing one felony and possibly admitting to the commission of a second felony – that being that if he truly believed Trump had overstepped his bounds in attempting quash the Flynn investigation then Comey had an absolute duty to take than to the appropriate channels. But he did not?
I have my theory which could be way off or dead on. First I was puzzled why Comey would even testify since he could be a potential witness to either criminal case or impeachment matter. Next, I was bothered by the leaks which in their detail led me to think they were coming from Comey or someone Very close to him. I ruled out McCabe after he testified this week. Anyhow, the leaks were also not really substantive but more directed at damaging Trumps credibility. My antennae has also been pinging lately over what I see is bizarre direct efforts by both Clapper and Brennan to insert themselvess personally into Trumps issues. What I mean is that these two old men have testified before Congress and that should be that but they there are for last several weeks blasting “Trumps” credibility and repeatedly saying the Trumps Collusion issue and the Flynn issue “would dwarf Watergate.” In my mind, I began to suspect that these two old men have a personal stake in the outcome of whatever was going in in the whole house of cards.
Next I was at first baffled as to why Mueller would even let Comey testify since Comey may be a future witness. Then I heard that Comey met with Mueller – Comey testified Mueller did not preview his testimony (also odd but explained in a few lines) – which is not unheard of in such circumastances. Before Comey testified I took this meeting and that fact that Comey was even going to show up and absolute proof that Trump himself was not the target of Muellers work. But then—-Comey testified.
I was jaw dropped at Comeys testimony. Not about anything he substantively said because from criminal or impeachment stand point he said nothing of substance. I was blown away by the rampant never ending admissions by him of his own unethical conduct and possibly criminal conduct. Further, his validation of Trumps “he told me 3 times” claim utterly destroyed every possible truth to what Clapper and Brennan have rampantly gabbing about all over the media for weeks. The he drops the Lynch bombshell and I think I passed out for some short time in shock :).
But seriously, these 3 aspects is THE STORY from the Comey show. But why? Would Comey do this? Maybe I am wrong but Comey’s dead pan candor and blatant admissions leads me to believe that he has reached an immunity deal with his long time friend Mueller who he wanted appointed as special prosecutor which he leaked the memo for that very appointment.
If I am correct the what in world would Comey need immunity for? It can’t be for Russia Collusion that is debunked. It could be for not reporting obstruction of justice but that charge is very weak here at best and if there was anything to it Comey would have acted right away on it?
Hmmmmm. Clapper, Brennan, Lynch, Hillary Clinton, a tarmac, private email criminal investigation, Steele Dossier, FBI Requests for FISA warrant 3x twice denied, Susan Rice, unmasking, Obama Januar 2017 Ex. Order regarding dissemination and oddly enough our newbie Winner the leaker. And suddenly I thought OMG Comey exchanged his testimony regarding the underlying unmasking probe in exchange for his testimony regarding those involved.
Then I took my tin foil hat off. And my theory still held water in that i believe that Clapper, Brennan and Lynch used intercepted intelligence involving Trump campaign people and Russian people as both a retaliation against Putins hack of DNC and Podesta and as an effort to somehow blunt the damage those leaks did to HRC campaign. Maybe this was politically motivated or maybe it was just their way of balancing out the election but I am pretty sure that none of them ever believed the Trump would actually win the election and as such whatever they had done to unmask this stuff would be forever buried in the Clinton administration.
In my mind if the above is within the realm of reality I still hold out hope for Comey which is why I think he may have struck an immunity deal. I think Comey was under intense pressure to get a FISA warrant and even though he thought the evidence with Dossier was as weak he’s a company man and he did what Lynch told him to do. And the FISA warrant was a must have if what Russia Collusion narrative was going to have even an inkling of credibility. After the election everybody is gone home but Comey and now he looks around has this uh oh moment and starts to try to figure out how to close the door. He stalls for time by not telling Congress what he already knew that Trump was not under investigation.
But then Trump cans his ass and now Comey is no longer in the position to maneuver the matter so he has to act and he has to act fast to CYA.
I, too, suspect this is MUCH bigger.
You made some very good points, and you may be right. But I have another theory. Negative headlining. I think many people just tend to read headlines, so if you are a Democratic Party operative type, and you want to attack and possibly hamstring an opponent, do you really have to have a true and credible basis for your various allegations? No, you don’t. Any old stupid and nonsensical thing will do.
Thus, Russiagate works in that sense. There is no evidence the Russians even did anything, much less that Trump or his comrades colluded with them, whatever “collusion: means in this sense. Yet, the Democrats and their MSM Propaganda Korps have had about 6 months fun with it so far. Do most people know CNN has had to make retractions or corrections? Do most people even know that Comey sank the whole Russiagate thing yesterday, or do most people even care?
The Democrats have gotten their negative headlines, they have inflated Putin up to be a monster, and Trump his partner in crime. Plus, they have wasted a bunch of Trump’s time. It’s a win for them. Will anything ever come from it? No, but they will keep milking the cow for all it’s worth.
Squeeky Fromm
Girl Reporter
I think you’ve got their number. I doubt there’s anyone of consequence at the Times the Post or CNN who has any integrity at all.
Just curious, what does the presidents legal team have cooked up for legal action(law suites).
He appears to be a weak man in the world of Washington politics. Being employed in our federal government is not a job for the squeamish.
Interesting information, but too general. Surely Mr. Turley could nail down Comey’s conduct/misconduct with a bit more specificity. And aside from more specific information about the legality of the disclosure apart from motive, I’d be interested in the legality of leaking information for the stated purpose of influencing a decision to appoint a special counsel.
Is that actually within the purview of the FBI Director? — leaking information to the press in order to force the Justice Department to appoint a special counsel?
And there’s a long history of questionable conduct by Comey, such as allowing Hillary to maintain unlawful custody of government records/criminal evidence long enough to destroy the records/evidence — the excuse for allowing that conduct/continued unlawful possession of government records being that Hillary had mingled those government records in with her own personal correspondence. I don’t think that excuse has legal merit, any more than a bank robber could refuse to return stolen money after being caught by claiming that the stolen money was mixed in with the robber’s own money.
Same with the alleged hacking of the DNC — Comey allowed the DNC and it’s hired private firm to control the evidence — which is how this entire Russia-conspiracy nonsense got started.
I’d think Mr. Turley is capable of reviewing a LONG history of Comey’s conduct which bends to the law in favor of allowing democrats to essentially launch and run investigations while simultaneously controlling the evidence, and in the case of Hillary’s emails, destroying the evidence.
Your comments about Comey are important information in bring him to justice! If another rightful citizen took Comey’s approach to try to influence the government to hire special counsel to fight against President of the United States, they would already be incarcerated. Thank you!
My God you people here are pathological.
Mr. Turley is seldom on the right side of the law with his interpretations of the law. He’s a left-leaning media consultant.
I hope Comey is prosecuted and gets what he deserves. Corrupt scumbag.
A medal?
They give medals for bad writing and worse judgment?
LOL, keep wishing for that pony, snowflake;.
#LockHimUp
James Comey is a disgrace to the FBI. Trying to be relevant after his rightful firing as it’s director! Comey always seeking fame; now even as a criminal of the USA constitution.
Under the federal records act, federal employees are entrusted w determining whether records are primarily personal or primarily federal records. Comey testified that Trump was not a “target” of any investigation he was working on. Trump loves Putin who disappears political opponents. Trump/Trump’s people lied about why Comey was fired. On an undeniably PERSONAL front, Comey needed the memos to vindicate the bureau & his reputation against assault from Trump’s lies. Comey was IMMERSED in the parameters of the Fed Recs Preservation requirements in handling the Clinton investigation…he knows exactly where the separation is between personal and FedRecs is, committed no crime, and is also protected by whistle-blower statutes.
Pretty sure whistle blower statutes don’t protect you if you leak to the press. They protect you if you report wrongdoing to the proper chain of authority.
As a private citizen I can leaks my own notes made as a private citizen.
As a private citizen I can leak my own notes made as a private citizen.
The memo under discussion was not created during the period Mr. Comey was a private citizen. At the time, he was the Director of the FBI.
As a private citizen I can leaks my own notes made as a private citizen.
Frank,
Have you ever held a security clearance? If you have one I’d use that statement to revoke it and if not, I would use that statement to never give you one.
That comment would be construed by any rational person to mean whatever you have rummaging around in your head is your property to disclose to anyone you see fit. I could argue from a natural rights perspective that is true. Your knowledge is property you own. The question is how did you acquire that property? Let me give you an example:
In my 20 years in the Navy as a Sonar Technician I held a Secret clearance. I had to learn and memorize a vast amount of information to do my primary job; Anti-Submarine Warfare. That means I have highly sensitive, classified information rummaging around in my head. I became Fleet Reserve in 1999 and then went on the Retired rolls as of 2009. I am a private citizen. If I were to believe what you believe, I would be okay communicating whatever I want to whomever I want, and I would be legally justified in doing so.
One would have to be an enemy of the state to even consider that as a good idea. Not only would that information put lives at risk, it would threaten our national security. Imagine every government employee or even private contractor for the government that suddenly finds themselves working in the private sector as a private citizen. Using your logic, every one of them would have the right to disclose whatever knowledge they had to anyone they wanted to.
Please tell me I’ve read your comment wrong, because that is exactly the argument you made.
https://twitter.com/blakehounshell/status/873139010784440320
I am wondering about the statement by Kasowitz that Comey leaked something in March, before he was fired. What was that about?