Below is my column in The Hill Newspaper on the legal analysis surrounding the disclosure by former FBI Director James Comey that he leaked damaging information against President Donald Trump in memos to the press. I have been surprised by the analysis which has been both artificially narrow or outright erroneous on the underlying legal issues. There was an early effort, for example, to judge the lawfulness of Comey’s actions solely on the basis of whether it was a crime. If these memos were government property, a claim for criminal conduct could be made but it would be unlikely under existing precedent. However, that does not mean that Comey’s conduct was either lawful or professional. Neither is true. In the rush to lionize Comey, the media is ignoring the fact that others have been punished for releasing non-public information to the media. Moreover, Comey and the FBI was tasked with finding leakers in the Administration. Yet, after being fired and publicly insulted by Trump, Comey became himself a leaker (despite a readily available and lawful avenue for disclosing the memos in a matter of weeks). I have stated from the outset that criminal charges are unlikely (and in my view unwarranted) as the facts currently stand with regard to this one leak. However, the leak was in my view unlawful and unprofessional. Comey allowed himself to be baited by Trump and proceeded to discard his professional judgment to strike back through a third party. His conduct should not be judged solely on the basis of whether it might land him in jail. Moreover, if the FBI wanted to pursue the violation, it could drag Comey to court and seek various remedies outlined in the agreement that all FBI agents sign as a condition of their employment.
The column below explores some of the misleading conclusions being advanced in the coverage. As I state in the column, I agree that legal commentators can have good-faith differences on such questions. However, it is useful to lay out both the conclusions and the countervailing arguments. These issues will become far more acute for Comey (including the possibility of criminal violations) if, as suggested by the White House, there were more leaks stretching back months.
Ever since the inauguration of President Trump, Washington seems stuck on the spin cycle with every figure and fact reworked to fit competing political narratives. James Comey is perhaps the greatest example of that process of translation. What is surprising is the degree to which legal experts have reached diametrically opposing views on what should be objective legal questions. Of course, even legal elements are subject to good-faith interpretive and jurisprudential differences of opinion. Yet, the chasm that has emerged in legal commentary is striking and frankly unsettling.
I have already addressed how the memos on Comey’s interaction with Trump were FBI information, not personal records like some diary entries. Comey clearly violated federal rules in the disclosure of the information without informing the Justice Department. Indeed, when still director, Comey never applied such loose notions of disclosure and ethics to his subordinates.
Yet, there has been a full court press to show that Comey’s conduct somehow fell outside of long-standing legal — and even grammatical — rules. Here are five such examples.
1. Comey could not have been a “leaker” because leaks by definition are limited to classified information.
Various experts have come forward to categorically dismiss allegations against Comey as a leaker by declaring that “leaks” are confined to the disclosure of classified information. This categorical statement was made by Claire Finkelstein, director of the Center for Ethics and Rule of Law and professor of law and philosophy at the University of Pennsylvania Law School, as an established fact on National Public Radio. Finkelstein insisted “this is not a leak” and said that “the term leak” generally involves classified information.
She is not alone. Former Robert Mueller aide and CNN legal analyst Michael Zeldin insisted on air that Comey was memorializing the meetings, saying, “This is not classified. There’s no leak. It’s not definitionally a leak. Leak is something completely different.” Likewise, Fordham law school professor Jed Shugerman insisted, “This should not be called a leak. The word ‘leak’ refers to revealing secret and classified information.”
Of course, this was a leak. A leak is the release of unauthorized information, not classified information. This widely used definition appears in federal laws dealing with a myriad of unauthorized disclosures. For example, the Justice Department manual defines a violation under 18 USCS § 1905 as covering federal employees “disclosed confidential information that the employee knew was confidential “in the sense that its disclosure is forbidden by agency official policy (or by regulation or law).
Likewise, 18 U.S.C. § 641 prohibits unauthorized disposition of “property” and “things of value of the United States or of any department or agency thereof” which a couple of courts have extended to confidential information leaked to the media.
Moreover, as I have discussed earlier, this leak was in direct conflict with the agreement that Comey signed (and all agents sign) at the FBI that makes material generated in relation to investigations “FBI information.” Many of the most famous leaks in history have been unclassified information ranging from expenses accounts of government officials to embarrassing pictures. Finally, as discussed below, this leak violated clear federal rules and regulations.
Yet, attorney Brad Moss is quoted as saying, “So long as he ensured the FBI had its own copy of the memos, and so long as the memos were not classified, Comey’s actions appear to be entirely lawful.” That would suggest that FBI regulations prohibiting the unauthorized disclosure of information are negated so long as you make or leave a copy. There are a host of privileges asserted by agencies, such as the deliberative process privileges. Imagine what would happen to that system if employees were told that they were in the clear if a document is not classified and they were considerate enough to leave a copy.
During Comey’s tenure, his bureau adopted exceptionally broad definitions of various privileges against disclosure of material from the FBI, including cases in the last year where the FBI barred the disclosure of any “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”
The agreement he signed clearly encompassed these memos as FBI material and he swore to comply with their bar on “unauthorized disclosure” — not just during his time at the FBI but “following termination of such employment.” He also agreed that violation would terminate his security clearance and subject him to both criminal and civil liability, including injunctive relief.
Comey’s effort to describe his decision as the result of waking up in the middle of the night may reflect his concern that this was an obvious and unlawful leak. At the time, he was already aware of the call for his testimony and he could have waited a couple of weeks to give the memos to a committee in a lawful and professional way. Instead he elected to leak through a third party, and in doing so, reduced the value of the memos to federal investigators including his former team.
The existence of the memos were most valuable if left confidential and not disclosed to Trump and his aides. They could then have been used to contradict statements and put pressure on potential cooperating witnesses. Comey used the information from his file at the FBI to change the narrative and strike a blow against Trump. In light of the lawful alternative avenue for disclosure, Comey is not only a leaker, but a leaker who appeared to leak out of ego or animus or both.
2. Comey could not have violated federal rules and regulations because the memos were read to reporters.
Experts have also maintained that, even if Comey is a leaker, he is not in violation of federal law or regulations because his friend only read the contents to reporters. For example, in a report by The Hill, attorney Stephen Kohn is cited for the proposition that “Comey shielded himself from any administrative repercussions by making the disclosures orally [and] … asked [Daniel] Richman to disclose “the content” of the memos, not the memos themselves.”
It is certainly true that there is no formal procedure to review oral disclosures as there is for book drafts or other publications. However, there are still a host of regulations requiring authorization for disclosures of any kind of FBI information. There is no Aesop exception that allows for unauthorized dissemination of information so long as it is in the form of a story.
Moreover, Comey appears to have given the memos to Richman and thus did disclose the memos themselves to a third party. It was also disclosed for the purpose of dissemination of the information. Again, the regulations refer to the disclosure of FBI information, not simply documents. Otherwise, anyone could become a leaker by just dictating the contents to a third party.
3. Comey satisfied bar rules or those rules did not apply to him.
Various experts have also dismissed legal ethical concerns over Comey’s conduct. Lawyers are not allowed to simply release damaging information without authorization. Yet, The Hill and other newspapers cite multiple lawyers as dismissing any legal ethical issues. For example, Kohn is quoted as saying “[e]ven in the context of lawyer-client privilege, if a client attacks the lawyer publicly, the lawyer can self-defend. So even assuming [executive privilege] was there, Comey had the right to self defense.”
First, the question is not simply about executive privilege. There are a host of privileges that can apply to FBI material, such as deliberative process privileges, as well as confidentiality protections that can be invoked by the government. Second, assuming the representational rules apply, Trump was not Comey’s client. D.C. Bar Rule 1.6 states, “[T]he client of the government lawyer is the agency that employs the lawyer.” Comey’s client was the Justice Department and ultimately the United States of America.
This material was generated as part of an FBI investigation, and that is the party that has to release the information (with the approval of the Justice Department). Again, the implications of this relaxed rule for Comey is staggering. It suggests that whenever a government attorney is criticized by a president or some other high ranking official, suddenly confidential or nonpublic information can be weaponized for use in the media.
D.C. Bar Rule 1.6 also states that protected information includes not only information within the attorney-client privilege, but also “other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.” While bar charges may be unlikely, there is no waiver of Comey’s bar obligations in this matter.
4. There is nothing that can be done to Comey because he waited until he left the FBI to leak the information.
Some experts have insisted that, even if Comey acted unprofessionally, any complaint or action against him is virtually frivolous or meaningless because he waited until he left government employment. Kohn, for example, said that a complaint with the FBI does not “mean anything. It is public relations.”
Some regulations (like 5 CFR 2635.703 on the use of nonpublic information) are directed at current employees. However, other laws bar the removal and use of government material, and this position ignores the fact that the FBI has continuing interest in FBI information being disseminated by either current or former employees. Indeed, the FBI could accuse Comey of unlawful possession given the FBI policy that “FBI personnel must surrender all materials in their possession that contain FBI information upon FBI demand or upon separation from the FBI.”
It can seek an injunction in court and further ask congressional committees to treat the information as privileged or confidential. The FBI could seek an index of all material that Comey removed from FBI computers or files. It can even seek authority to search his office and home if there is evidence of unauthorized disclosures or dissemination. The FBI employment agreement signed by Comey expressly accepts such post-employment measures.
Regardless of the absence of a criminal charge, the FBI can determine that Comey acted unprofessionally and the bar can determine that he acted unethically. That is not meaningless, particularly when Comey’s allegations depend greatly on his credibility. If these memos are government property as senators like Susan Collins have recognized, complaints against Comey are hardly a matter of sheer “public relations.” Indeed, most of us have too much respect for Comey to believe that he would treat such complaints as meaningless.
5. None of this matters because Comey is a whistleblower.
In disclosing this information, Comey was not acting as a protected whistleblower and he has not claimed such a status. FBI whistleblowers are required to make objections internally, and the process has been widely criticized as less than that afforded at other agencies. If these memos constitute FBI information (as they appear), Comey had no authority under whistleblower laws to remove them and disseminate the information. Indeed, had an agent made such disclosure while Comey was director, he would not likely have been so forgiving or casual toward the disclosures.
Many of us consider Comey’s allegations to be highly disturbing, and we supported the appointment of a special counsel. I do not consider Comey to be a liar and I continue to respect his service to this country. I also do not believe that criminal charges would be warranted in this circumstance. However, our view of the different characters in this unfolding drama should not blind us to serious professional and ethical lapses.
Comey was wrong to leak the information to the media. He became the very thing that he has spent his lifetime fighting against after being baited by Trump. After being fired and called names, Comey picked up the phone and became a leaker himself to strike back at the president. That does not make his allegations untrue, but we do not need to retroactively change the meaning of leaks or the scope of professional rules of conduct to protect Comey from his poor decisions.
Assuming that Comey’s account in these memos is true, history will show two national figures — not just one — acted in highly inappropriate ways for highly personal reasons.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He has served as counsel in national security cases and whistleblower cases, including allegations of the leaking of unauthorized information.