The Case Against James Comey

440px-Comey-FBI-PortraitBelow 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.

116 thoughts on “The Case Against James Comey”

  1. So if the President of the United States clears the room of his top advisers, and speaks privately to a high ranking employee, that is not considered classified in any way???

  2. Robert Mueller’s history reveals a close relationship to the Bush dynasty and the “establishment.”

    Robert Muelller and James Comey were colleagues and friends.

    Robert Mueller has both apparent and defacto conflicts of interest in this investigation.

    Robert Mueller should never have been assigned as Special Counselor.

    Robert Mueller should recuse himself.

  3. Straight up guilty….just like Hillary. There are others as well, but will any prosecution happen? History says no but I still have hope for some reason.

  4. “Deja Vu”
    _______

    Barr recounts Robert Mueller as saying,

    “Bob, don’t go too hard on these guys. We know most of them, and they’re good people.”

    According to former Georgia Congressman Bob Barr, now special counsel Mueller said nearly the same thing to him during the 1995 Congressional investigation into the 1993 stand-off in Waco, Texas that resulted in the deaths of 76 members of the Branch Davidian cult.

    Barr, writing in his 2011 book, “The Meaning of Is: The Squandered Impeachment and Wasted Legacy of William Jefferson Clinton,” recounted a phone call with Mueller, who was then working at the Justice Department, in which he asked Barr not to “go too hard on these guys.”

  5. I don’t get why any of you Trump supporters are worried. President Pence will give all of you millionaires tax breaks and free up Wall Street so you can hide more of your money. Just think, he will mandate all Trump voters to go to reeducation camps and conversion work shops to pray only to his God. Just think of the freedom. Think of the freedom you will have in paying tolls to go on roads that you already have payed for, think of the freedom you can have with only Pat Robertson news 24-7.. think of the freedom of your doctor saying NO…So go to sleep tight, cause President Pence is soon to be on the JOB.

    1. Have you heard about the “infrastructure” deal involving Saudi Arabia and Blackstone? Talk about freedom, everyone is going to be free to pay through the nose after public assets are given away to private businesses. See this link : https://theintercept.com/2017/05/27/trumps-america-first-infrastructure-plan-let-saudi-arabia-and-blackstone-take-care-of-it/ . Trump- draining the swamp so that his friends in Blackstone and Saudi Arabia can make lots of money building an even bigger swamp.

  6. So is he lying? or leaking. He’s leaking about a lie? No, that’s Trump’s job. Oh, he’s lying about the leak? No that’s Trump’s job again. Anyway you look at it, nobody but nobody can lie like Trump and the American people know it.

  7. James Comey is a proven liar and protector of criminal conduct. But, unfortunately, nothing will happen to him. He will always be protected. Comey has been a loyal tool of the Elite Establishment and the Deep State government apparatus. They always take care of their own. That’s why nothing happened to Hillary Clinton either.

    1. Haha…”Deep state.” Everyone should invest in tin, right now; tinfoil hat demand going up…

  8. Mr Turley:

    Are you able to tell me why the post on President Obama (It now seems clear that Barack Obama was a corrupt machine politician…..) no longer appears on your blog site? I would appreciate knowing what happened to the post.

    Thank you, Joe Ferrari

    Sent from Mail for Windows 10

    1. All roads lead to Obama.

      America is not allowed to go there.

      The “deep state” ruling class shadow government ensconced the very ineligible, half-white, son of a foreign citizen for purposes of multicultural affirmative action in pursuit of the collectivist, one-world government and the destruction of all national sovereignty.

      Nothing will be permitted to dampen that effect or alter that course.

  9. ” He simply sent the memos to a law professor to serve as a conduit to the media.”

    He knew, or should have known that the release by another would mean what was released would be aimed to cause harm, in this case harm to the President.

    I think the intent to cause harm with subsequent harm occurring should be prosecuteable both in the civil and criminal arena’s. It is slander at the very least and more because of the position Comey wielded that exists to protect the nation.

  10. Why is JT so convinced Comey released the information because he was miffed at the president’s attacks on his performance when Comey himself said it was in response to the President’s tweet that there might be tapes.

    1. Because the head of the FBI isn’t supposed to go around leaking information. Why is that so hard for you to get through your head? If Comey thinks it was “legitimate/legal” to release the info, then why not just do it himself out in public?

      Sooo, what is the best GUESS, why a supposedly “professional” person like Comey went and done it??? My opinion is, that his little FBI panties were in wad.

      Squeeky Fromm
      Girl Reporter

  11. Apparently, Comey forgot some of the basic rules of thumb. Don’t play politics, call them like you see them,
    call them when you see them. He has managed to mismanage everything he touched, all the while trying to have us believe he occupied the moral high ground. What resulted were a series of unbelievably incompetent acts. We refer to these collective administrative gaffs as “The fecal touch.”

  12. Hmmm. Well it looks to me like if Comey makes $10 million off a book deal, there was a whole ‘nother motive for him to act as he did. MONEY! He basically set himself up to be controversial. Or, he is just some kind of nut.

    Squeeky Fromm
    Girl Reporter

    1. Because the one with the daily, 6am Twitter rants couldn’t possibly be the crazy one here.

      1. Not if he truly has something to rant about at 6:00 AM. And it looks to me like Trump has plenty to rant about.

        Oh, I guess Trump could slip a little memo to a friend somewhere, for the friend to leak to the New York Times. Yeah, that’s the ticket! Trump could learn to be a sneaky little b*tch just like Comey! Instead of just coming out and saying what he had to say.

        Squeeky Fromm
        Girl Reporter

  13. Taking a bird’s eye view of the situation, one could paint Comey and his accomplice adviser, Daniel C. Richman, in an even darker light. Richman debuted in the media as Comey’s “adviser”, shortly after Comey’s ham-handed, public announcement that the Clinton email investigation was being re-opened ten days prior to the 2016 election. It seems that the duo, according to Hillary Clinton, and other media observers, directly caused a drop in Clinton’s poll numbers and handed the election to Trump. According to Comey, he wanted to instigate a Special Counsel and it took all of one day after his “friend’s” leak to have one appointed. It seems that Comey and his friend had ambitions both to act as King-makers and dethroners-zealous and ambitious to the core!

    Richman wrote a law review article arguing, that there is no need for Special Prosecutors, as the D.O.J. has zealous, “apolitical” lawyers and investigators that can competently handle the job. Well, it sounds like Robert Mueller is just the man they were looking for!:

    https://www.researchgate.net/publication/228124320_Of_Prosecutors_and_Special_Prosecutors_An_Organizational_Perspective

  14. The character of Jim Comedy is “nauseous ” . This was the director of FBI when Russia had informed us of the Boston bombers and the killers were still free to carry out their evil intentions . Same with Orlando and San Bernadino killers . Whoever hired him showed his own character !

  15. You are one of the only voices presenting this with objectivity, Jon, thank you. I agree, Comey is as much a tool as any of the rest.

  16. [eye roll]

    Fretting about whether he did or did not commit a misdemeanor is a waste of time.

    By all appearances, the man is a somewhat deceitful poseur / careerist who really should not be occupying a place of public trust. The one justification for having him in office would be that the quality of the political class is now so poor that he’s the best you can do.

    1. “Shall be fined under this title or imprisoned not more than ten years, or both . . .”

      Potential imprisonment for ten years is a felony.

  17. Comey was acting in his capacity as a government official, not as a lawyer, in his dealings with Trump so attorney-client privilege does not apply. Trump himself declassified the details of their dinner meeting by virtue of making his version of events public. And as Comey himself confirmed to Trump, there was at the time no active investigation into the conduct of the President. USC 641 applies to unauthorized release of records but again no active investigation, no attorney-client and the fact that Trump himself publicized their dinner meeting not only declassified that meeting but effectively relinquished any claim of executive privilege from the instant he started talking to the media. Gotta say, any shred of respect you still had, Jonathan, you just lost with this convoluted, desperate, and legally baseless attack against Comey.

    1. So there is no there there regarding this particular “there”:
      “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.”

      So Comey’s conveyance to the Columbia law professor of his conversation is what,
      whistleblowing?

      1. The full text of the code reads:

        “Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or

        Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—

        Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.

        The word “value” means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.”

        First, from reading the full text, the code strongly suggests that “converts to his use or the use of another” requires a monetary value that can be assessed. This is reinforced by the last two paragraphs of the code. Secondly, the use of the term “converts.” If there was no active investigation, then Comey’s memo was nothing more than personal recollections so he’s not converting them from anything else. Lastly, the issue of “without authority.” With no investigation, classification, or executive privilege and the fact that the President himself publicized the details of the meeting, there’s really no case to be made that Comey required authorization to relate his side of events.

        1. “[V]alue” doesn’t have anything to do with Mr. Turley’s argument. His argument goes to unauthorized conveyance of property of the Department of Justice. Comey didn’t have legal title to his memo, which was work product. The Justice Department did.

          “[C]onvey” is simply to “to cause to pass from one place or person to another . . . ”

          https://www.merriam-webster.com/dictionary/convey

          “[R]ecord” means “a body of known or recorded facts about something or someone especially with reference to a particular sphere of activity that often forms a discernible pattern . . .”

          https://www.merriam-webster.com/dictionary/convey

          “[V]alue means “relative worth, utility, or importance . . .” or “something (such as a principle or quality) intrinsically valuable or desirable . . .”

          “[P]roperty means “the exclusive right to possess . . . and dispose of a thing . . .”
          merriam-webster.com/dictionary/property

          Comey caused to pass from one person to another a body of recorded facts about something or someone, especially with reference to a particular sphere of activity that often forms a discernible pattern, of which the Department of Justice had the exclusive right to possess and dispose.

          Comey’s guilty of violating 18 USC 641, but I guess he knows of no reasonable US Attorney who would prosecute him.

      2. He conveyed government property without authorization. He’s guilty of violating 18 USC 641.. Value doesn’t have anything to do with it.

        And with the violation, he’s committed a crime of moral turpitude which unleashes ethics issues.

        1. Don’t know why that is so hard to understand as both you and Professor Turley have laid it out.
          The latest Nicole Wallace thread to follow is the GOP platform committee changing the language to be more favorable to Russia during the convention. This looks an avenue to question why the favorable treatment after Romney’s comment and the overall new feelings of Putin love, by a party that despises everything Vlad.

          I have a question.
          Which is going to prove a more fatal act, the Russian collusion by the Trump team or the Iran deal from Obama and Kerry?

        2. Steve Groen – we now know why no leakers were pursued. Comey was the leader of the pack.

          1. No matter that I think everything exiting Trump’s mouth is specious, Comey’s FBI legacy may be: “It was extremely careless . . . Although there is evidence of potential violations . . ., our judgment is that no reasonable prosecutor would bring such a case . . .”

            No wonder Comey had bags under both eyes this past Thursday. He’s up all night praying his own legacy saves him.

            1. Steve Groen – I have this feeling that Comey has dropped more missives than he has admitted. The Special Counsel may need to widen his scope. Do you think Mueller would take down a friend?

              1. I’d guess not, especially when there’s a bigger fish to fry or at least look like he wants to fry, and there’s always the prosecutorial-discretion fall-back position.

                1. Steve Groen – now that we know that Mueller and Comey are golfing buddies, Trump might be wise to get rid of him. The Clintons would just arrange a suicide.

              1. Just Me – opinions can be wrong and wrong–headed. When you are older and wiser you will realize this. 🙂

                1. Ok, well, you may have the last word. This is a kindergarten-type exchange and pointless, too. Have a wonderful day. And enjoy your opinions! I know I am enjoying mine! 🙂

    2. L Silver – so Trump meets with a foreign leader and has dinner, half the conversation is casual,half is classified. Trump talks about the casual part. That automatically declassifies the rest of the conversation?

      1. That’s not what we have here. From all accounts, the three items of discussion were 1) the issue of loyalty 2) Trump requesting that Comey take it easy on Flynn and 3) according to Trump, Comey begging to keep his job. There’s absolutely zero indication that anything else was discussed and definitely not anything classified since Trump isn’t even supposed to be talking to the head of the FBI in the first place, especially about ongoing investigations.

        1. L Silver – as head executive of the executive dept of the gubermint (remember 8th grade civics) he has the right to discuss whatever he wants with whomever he wants in the executive dept. That includes the FBI. And given Comey shows a talent for being in it for himself and being a coward, Comey came out and showed his true colors.

    3. Excellent analysis. Thank you for that. Turley’s defective analysis re a supposed attorney client relationship between Trump and Comey leads to the conclusion that Prof. Turley is more interested in casting aspersions on Comey than anything else. (Not that Comey is above criticism for other things he has done in the past, BTW.)

      BTW, the Ninth Circuit just (mostly) upheld the Hawaii District Court in the “Travel Ban” appeal in an opinion just issued today. Link is here: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/12/17-15589.pdf .

      I know, the entire world is conspiring against Donald Trump, anyone who doesn’t support him must be a secret agent of Hillary, and the Russians, Putin in particular, deserve to be our friends because, like Trump, they never lie and are always right.

      1. Thanks! And yeah, the ban will probably go to the Supreme Court. If I had to guess, I’d say it gets knocked down with Kennedy being the deciding vote.

    4. It is disingenuous, at best, to state that there was no investigation of Trump being conducted in relation to whether or not Comey’s Memo was, or was not a public document. Comey’s memorialized a conversation in which he believed that Trump demanded loyalty and expected him to drop an investigation into Flynn. This would normally be put into a standard FBI 302 memorandum, and, therefore would be FBI property.

      1. From news reports, it appears that Comey did not transcribe his notes into a 302 memorandum. Did he realistically expect the details of that dinner meeting to become court testimony in a future investigation against the President? Such an expectation would require him to fill out a 302. From accounts, at the time he did not. While feeling uneasy enough to write down what happened, every indication leads to the conclusion that he thought (wrongly) that he could minimize the severity of what happened, that it didn’t warrant reporting to the AG. Only after he was fired and his integrity was impugned by Trump did he feel that he needed to get out his side of the story.

        1. The 302 memo is a routine FBI practice. In fact, it’s called “potential witness testimony”. If you review FBI 302’s, released via F.O.I.A., they are often just briefing memo’s that are mundane, and I’m sure many are not used for court proceedings. As a lawyer, Comey was on notice that Trump’s behavior was in a grey area. As a career FBI/DOJ employee, Comey should have known that his notes were the functional equivalent to 302 information.

        2. –“Did he realistically expect the details of that dinner meeting to become court testimony in a future investigation against the President?”–

          Hard to take your analysis seriously when Comey himself admitted he memorialized the conversations to protect himself and leaked those memos in the hopes of causing the appointment of a Special Counsel.

    5. I dunno. Evidence of what Comey himself thought was obstruction of justice, which he subsequently discussed with his senior staff wasn’t just his personal musings on a private dinner date with the president. It was government property, obtained while he was contractually obligated to the FBI. In fact, it was so important that he contemplated telling the DAG (or US Attorney) if I recall his testimony correctly. He testified he decided after consulting his staff to withhold the evidence for the time being. It wasn’t his evidence to publish to a third party outside of DOJ without its authorization..

      Mr. Turley pointed out that it matters not whether it’s classified material. It’s still government property.

      Comey should have made his record and kept it in-house. As it is, it appears he was just trying to vindicate/protect himself after being humiliated by Trump.

  18. Liberals have loved and hated Comey more than Bill Clinton has an intern.

      1. SWM, I do indeed remember Trump lovin’ Comey. There are no heroes in this Shakespearean tragedy/comedy.

          1. LOL! Anyone even w/ a pea brain can discern it is conclusively SWM. Figure it out and I’ll give you a cookie.

            1. Anyone with a pea brain also knows that you and Darren love outing commentators while offering no substantial input to JT’s blog.

              How’s Minneapolis?

            2. Knowing it — and stating it outright — are two different things, entirely.

              1. Angry, old timers. Don’t you folks have those blogs you fled to any longer?? LOL! SWM is not a whiner like you loser[s]. She can take care of herself and doesn’t need help from your ilk.

    1. Nick – I don’t think Bill Clinton loved anyone. He was more like Jimmy Carter. He lusted in his heart after many. And acted on his primal urges.

      1. Paul, Agreed. But, I bet he tells all the thousands of bimbos that he loved them big time!

        1. Nick – at least some of them. Monica thought they were going to sail off into the sunset together.

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