Below is my column in The Hill Newspaper on the the case against former FBI Director James Comey for leaking FBI information to the media. There has been an effort to confine the question of Comey’s actions in terms of criminality. There are laws that could be relied upon for a formal charge in court but that is unlikely and would counter prior prosecutorial practices. However, the disclosure clearly violates a host of federal rules and regulations that bar such use of FBI information. It is therefore unlawful and unprofessional. It is also potentially unethical under bar rules.
Here is the column:
The testimony of James Comey proved long on atmospherics and short on ethics. While many were riveted by Comey’s discussion of his discomfort in meetings with President Trump, most seemed to miss the fact that Comey was describing his own conduct in strikingly unethical terms. The greatest irony is that Trump succeeded in baiting Comey to a degree that even Trump could not have imagined. After calling Comey a “showboat” and poor director, Comey proceeded to commit an unethical and unprofessional act in leaking damaging memos against Trump.
Comey described a series of ethical challenges during his term as FBI director. Yet, he almost uniformly avoided taking a firm stand in support of the professional standards of the FBI. During the Obama administration, U.S. Attorney General Loretta Lynch gave Comey a direct order to mislead the public by calling the ongoing investigation a mere “matter.” Rather than standing firm on the integrity of his department and refusing to adopt such a meaningless and misleading term, Comey yielded to Lynch while now claiming discomfort over carrying out the order.
When Trump allegedly asked for Comey to drop the investigation of Michael Flynn or pledge loyalty, Comey did not tell the president that he was engaging in wildly inappropriate conduct. He instead wrote a memo to file and told close aides. He now says that he wishes he had the courage or foresight to have taken a stand with the president.
However, the clearest violation came in the days following his termination. Comey admits that he gave the damaging memos to a friend at Columbia Law School with the full knowledge that the information would be given to the media. It was a particularly curious moment for a former director who was asked by the president to fight the leakers in the government. He proceeded in becoming one of the most consequential leakers against Trump.
Comey said that he took these actions days after his termination, when he said that he woke up in the middle of the night and realized suddenly that the memos could be used to contradict Trump. It was a bizarrely casual treatment of material that would be viewed by many as clearly FBI information. He did not confer with the FBI or the Justice Department. He did not ask for any classification review despite one of the parties described being the president of the United States. He simply sent the memos to a law professor to serve as a conduit to the media.
As a threshold matter, Comey asked a question with regard to Trump that he should now answer with regard to his own conduct. Comey asked why Trump would ask everyone to leave the Oval Office to speak with Comey unless he was doing something improper. Yet, Trump could ask why Comey would use a third party to leak these memos if they were his property and there was nothing improper in their public release.
In fact, there was a great deal wrong with their release, and Comey likely knew it. These were documents prepared on an FBI computer addressing a highly sensitive investigation on facts that he considered material to that investigation. Indeed, he conveyed that information confidentially to his top aides and later said that he wanted the information to be given to the special counsel because it was important to the investigation.
Many in the media have tried to spin this as not a “leak” because leaks by definition only involve classified information. That is entirely untrue as shown by history. Leaks involve the release of unauthorized information — not only classified information. Many of the most important leaks historically have involved pictures and facts not classified but embarrassing to a government. More importantly, federal regulations refer to unauthorized disclosures not just classified information.
Comey’s position would effectively gut a host of federal rules and regulations. He is suggesting that any federal employee effectively owns documents created during federal employment in relation to an ongoing investigation so long as they address the information to themselves. FBI agents routinely write such memos in investigations. They are called 302s to memorialize field interviews or fact acquisitions. They are treated as FBI information.
The Justice Department routinely claims such memos as privileged and covered by the deliberative process privilege and other privileges. Indeed, if this information were sought under the Freedom of Information Act (FOIA) it would likely have been denied. Among other things, the Justice Department and FBI routinely claim privilege “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”
Of course, Comey did not know if there was a privilege or classification claim by either the Justice Department or the White House because he never asked for review. He just woke up in the middle of night upset about Trump’s name calling and released the damaging information. In doing so, he used these memos not as a shield but a sword.
Besides being subject to nondisclosure agreements, Comey falls under federal laws governing the disclosure of classified and unclassified 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 warns employees that “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.”
One such regulation is § 2635.703, on the use of nonpublic information, which states, “An employee shall not engage in a financial transaction using nonpublic information, nor allow the improper use of nonpublic information to further his own private interest or that of another, whether through advice or recommendation, or by knowing unauthorized disclosure.” While this provision covers current employees and would not likely to be applied to Comey on these facts, FBI forms and rules barring such use of FBI information extend to former employees. What is clear is that the FBI has overlapping prohibitions on the type of disclosure made by Comey.
The standard FBI employment agreement bars the unauthorized disclosure of information “contained in the files, electronic or paper, of the FBI” that impact the bureau and specifically pledges that “I will not reveal, by any means, any information or material from or related to FBI files or any other information acquired by virtue of my official employment to any unauthorized recipient without prior official written authorization by the FBI.”
Had Comey taken the minimal step of seeking clearance, the department would likely have said that this was FBI information and not personal information. Comey instead decided to ask forgiveness rather than permission.
Comey is also subject to bar rules on releasing information inimical to the interests of his former employer. For example, under professional rule 1.6, lawyers need to secure authority to release information that “(1) reveal a confidence or secret of the lawyer’s client; (2) use a confidence or secret of the lawyer’s client to the disadvantage of the client; [or] (3) use a confidence or secret of the lawyer’s client for the advantage of the lawyer or of a third person.”
Comey actually showed both how to and how not to disclose such information. When Comey released the information, he knew that he was going to be called to Congress where he could disclose this information properly after giving the White House a chance to claim privilege. Instead, he decided to release the information early. Why?
Comey gave two equally implausible explanations. First, he suggested that he wanted to get the information to investigators. However, he knew not only that he was likely to testify but that these memos would inevitably be demanded by both congressional and federal investigators. Second, he said that he wanted to ensure the appointment of a special counsel. However on that Monday, many of us were saying that such an appointment was virtually inevitable. More importantly, he could have given the memos to investigators and properly laid the foundation for a special counsel.
The fact is that the leaking of the memos worked to the advantage of James Comey, not Robert Mueller. Comey was able to take over the narrative and news cycle after Trump had publicly belittled him and his record. Special counsels do not like leaks of this kind. It would have been far better for the special counsel (or Comey’s own former investigatory team and congressional investigators) to have the memos confidentially.
The greatest value of the memos would be to question Trump and other potential targets without their knowing of their existence. The memos could then have been used to establish false statements and pressure cooperation. Instead, Comey told possible targets, including Trump, about the evidence against them in the memos.
Donald Trump continues to show a remarkable ability to bring out the worst in people — supporters and critics alike. In this case, he was able to bait Comey with his tweets and cause Comey to diminish his own credibility. If the comments of Trump were grossly inappropriate, Comey’s response to those comments were equally inappropriate.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He has served as defense counsel in national security cases involving classified information and alleged leaks to the media.
What Trump has going for him is that every middle-class Joe and Sally knows Comey and his ilk are a huge part of the Washington swamp, which got its foothold during the Reconstruction Era, before which time political contributions from corporations were illegal. You’re not going to drain the swamp without first draining the money from special interests.
Jim 22……..Jan 20 2017 12:01…………..Emolument clause
When the information leaked is about wrong doing by higher ups, it’s called whistle blowing and the far right (correctly) loves it when the subject is (depending on the meaning of the word IS) a Demorat. No longer born of treachery, It comes from a long tradition that started with a revolution against the laws of the King in favor of a more universal law that protects the common man and woman from abuses of power.
But the shoe can find itself on the other foot (or tribe as it were) and then these gentle souls with naught but sweetness towards all, love it not so much and find it not so fair.
“Comey is an honest man,”
Thanks for the Monday morning laugh.
Once the dust settles two things become apparent. Firstly, almost no person of position, Comey in this case, is devoid of ethical imbalance and a shortage of common sense. Comey wished he had done it differently but spilled the beans, all the beans regarding what went on. Comey painted a less than flattering picture of himself in doing so. The legal, ethical, and other perimeters for Comey’s releasing/leaking memos is open for translation. A Trump supporter takes one extreme view. Any one against Trump stays silent and waits for the legal determination.
Turley’s portrait of Comey misses some very important strokes. Comey came out with honesty and openness. Trump has no such qualities. Trump is the consummate liar and runs a chaotic closed ship. Writing a quasi legal essay on Comey and his part in this does not give anything positive to Trump. It only exposes the morass that is the system and the criminal that is Trump.
At this point, after what has been disclosed, it is clearly obvious to anyone who has an ounce of objectivity that Comey included points in his favor as well as points not in his favor in his testimony. Comey is an honest man, not without fault, but an honest man. One could believe what Comey said. There is no way whatsoever that any one with an ounce of common sense could believe anything that Trump says. The man is a pathological liar. Where Comey’s umbrella, over his career and actions may cover good and bad aspects of human nature in collision with activities in which the average person could never partake, Trump’s umbrella covers a lifetime of lies, bankruptcies, tax manipulation, pandering to the mega rich, megalomania, and a host of other shortcomings that seem to some make him the perfect leader. That Comey has some shortcomings does nothing to relieve Trump of his disgusting persona.
Comey works for the friggin FBI. Don’t you think he can calculate a few steps out further than DJT?
To say he felt queasy when he was asked by AG Lynch to refer to the Clinton email investigation as a “matter’ and then knowing how to railroad thru an independent council investigation while not choosing to advise the newbie President says much about his so called integrity.
He can’t be the savior of law enforcement and then play stupid.
Trump voters are getting what they want.
Namely Washington insiders are being abused and being exposed for their own incestuous games.
FBI versus the mobsters..
Roscoe Coltrane – do you think a guy who has built several casinos has not put together a long-term schedule before?
I see that JT got the republican talking points memo. How is it that republicans wanted charges put to Obama if he left the toilet seat up, and they were ready to impeach Hillary even before she took office now say nothing to see here with Trump.
Please explain in detail what there is to see?
I missed the toilet seat fluff up. Could you fill us in?
The President speaks publicly about the meeting in a way that is quite different that Comey remembers and he can’t respond with an unclassified memo? Oh, that’s right, if the President does it, it’s ok.
When his family got off the boat at Ellis Island, two generations back, they came from Comey, Russia. They had Mafia last names from Sicily so they switched the name of their home town to their last name on their “papers”. His real name is Corleone. Do not call him “Comey” anymore.
Actually, Comey is Irish, and they are known to be fighters, so when Trump fired him, he should have known that he was going to hit back.
lol!
(music to tune of the Armour Hotdog Song)
“Memo”!
What’s a “Memo”?
What kind of people release “memos”?
Fat kids, skinny kids, …
Kids who climb on rocks.
Fat dorks, weeny porks,
Dogs who dwell on chicken pox…
Play with “Memos”…
Vile “Memos”!
The dogs, kids, like….
To Bite!
I agree with all the arguments.
Beyond my pay grade. I had thought we had a government by the people, of the people, for the people…
Ha ha ha. We have a government of lawfare artists. See Roe v. Wade and Obergefell. Prog-trash are happy with that so long as they get what they want.
Reblogged this on 1EarthUnited.
Best practices for law enforcers should be to ignore politics and enforce the law as the legislative intent allows and the courts restrain. It makes for less worry and doesn’t backfire as easily on the LEO. Unfortunately for Mr. Comey he hasn’t adhered to such practices and we now see and read the results.
Yes that is. Recall that Henry Petersen told John Dean in 1971 that at no time in his tenure in the Criminal Division of the Department of Justice (he having been hired in 1951) had an investigation been closed at the instruction of the White House (Peterson: “the lawyers in this division would walk out.” Dean: “I know Hank, but no one there has ever worked here…”). Recall Robert Bork’s defense of the professionalism of the DoJ when he was arguing that the independent counsel law was unnecessary. Bork was remembering the Department he worked for ca. 1975.
George McGovern is dead, Nat Hentoff is dead, Henry Peterson is dead, Alan Dershowitz is 79 years old and Dianne Feinsten is 85. When subsequent age cohorts got their hands on instruments of the law, they ruined them.
Agreed.
What is “professional rule 1.6?” I thought it meant the ABA Model Rules of Professional Conduct, but that is not the language of Rule 1.6. Which jx Bar rules would apply? Also, what “client” was Comey representing with respect to the necessary attorney-client relationship? Thanks in advance.
Comey has a law license but he wasn’t in lawyer-client relationship with Trump or anyone else. He was the FBI Director, and thus a high-level government administrator. The reference in JT’s piece to attorney-client privilege is utter nonsense, and he should know it.
The fact that Comey still walks free is just more confirmation that this is a third world banana republic. Where the heck is Jeff Sessions in all this?
At the absolute least, Comey should lose his law license permanently and his pension, so he can go work for Cantor Fitzgerald, where Jesus Obama’s AG Eric Holder and Holder’s then-DOJ first Lt. Lannie Breuer now work.
CF is the largest US defender of White Collar (Bank) criminals. Yes, the same CF that paid Jesus Obama $400k for a little recent speech. And yes, the same two guys Holder and Breuer are the ones who concocted felony lies to Congress defending the Goldman Sachs bankers who raped the world of about $4T in stolen finances, and got away scot free. You can’t write fiction as good as this:
http://topdocumentaryfilms.com/veneer-justice-kingdom-crime/
When I first read this, I thought the Democrats’ response to this article would be, “Yeah. But, Trump!”
I see I was right.
Squeeky Fromm
Girl Reporter
Here’s the meat from Andy McCarthy’s take:
“Comey maintains, as he did in the July 2016 Clinton-e-mails press conference, that there is a “public interest” exception to the Justice Department rule against commenting on investigations. But public interest is the very reason for the no-comment rule. The point is to avoid smearing people who have not been charged with a crime. Such a smear happens only if the public is interested in the case. More fundamentally, what is the “public interest” in misleading the public? If you know that what you are about to say is going to lead people to believe the president of the United States is under investigation (as it did), and you know for a fact that the president of the United States is not under investigation (as Comey did), why make the statement? And if it was important enough to tell Congress that Trump was not under investigation so that Congress would not be misled, what conceivable reason is there not to tell the public — especially when you must know that withholding this critical detail will make it much more difficult for the president to deal with foreign leaders and marshal political support for his domestic agenda?
Read more at: http://www.nationalreview.com/article/448513/trump-james-comey-fbi-director-russia-investigation-fired-misleading-public
It’s not President Trump who is bringing out the worst in people, they’re doing quite fine on their own.
It’s counter aggression and apparently some folks can’t help themselves.
Comey “leaked” his own unclassified writing. Big deal.
Why discuss Flynn with Comey when there are active cases involving IS in all 50 states.
“I hope” = euphemistic obstruction.
That would be a worthwhile post if there was such thing as “euphemistic” law and punishment, which there is not, so it isn’t.
More Progressive Soros-inspired Deep State fail.
It’s pretty bad when lifelong Democratic stalwart Dianne Feinstein wants Congress to investigage Jesus Obama’s AG LOW-reta Lynch for Obstruction of Justice:
http://www.zerohedge.com/news/2017-06-11/feinstein-congress-should-investigate-if-lynch-pressured-comey-cover-hillary-clinton
My co-worker used to be Dianne’s chauffeur, and was in SF City Hall when Dan White killed Mayor Moscone and Harvey Milk. .
You’re trying awfully hard to bend federal laws and regs to apply to a situation for which their application is highly debatable — if not downright absurd. I realize you pride yourself on your reputation as a political independent, but I do have to wonder what your real agenda is here.
Agreed.
Ridiculous and pathetic. You are the one with an agenda. Turley states his position and backs it up with crystal clear language from the law, and states the law numbers and FBI regulations.
If Comey’s notes are/were his personal property, pray tell, why did he not himself walk or email the info directly to the NYT, and appear on TV talking about it, or Tweet like that idiot POTUS Trump?
If Comey’s notes are/where his personal property, then exactly how do you differentiate those notes from notes typed by any other FBI agent on an FBI computer, same as Comey? And if there is no difference (there is no difference), then every single one of those notes are public property, and the FBI would have to turn those notes immediately over to any suspect.
You are either an idiot, not realizing how these notes by their very nature must remain confidential and not given to suspects and the public, or a troll operating for Comey. You most certainly are the latter, or Comey himself.
Fail, fail, fail.
BTW, at least Turley signs his name, “Peter Principal.”
I have personally busted Deep State Agents on this blog. Snowden docs proved the government pays trolls on social media to present and enforce Deep State positions. I noticed these slime balls can not help themselves but to select the most offensive, in your face type user names, exactly like your chosen “Peter Principal.”
Your post and “Salt Peter Principal’s” post look to me like more of the same Deep State BS.
Agreed.
I agree completely with Peter Principle. Comey broke no laws and violated no ethical rule.