Whistleblower or Wrongdoer? Comey Defenders Ignore The Former Director’s Own Misconduct

440px-Comey-FBI-PortraitBelow is my column in the Hill Newspaper on the allegations raised by the White House over the alleged misconduct of former FBI Director James Comey.  It is clear that Comey violated FBI rules and regulations — offenses that would have likely cost any of his subordinates their jobs at the Bureau when he was director.  However, there remains a virtual news blackout on the obvious violations and their implications.

Here is the column.

This week’s press conference has caused a media frenzy after White House press secretary Sarah Huckabee Sanders suggested that former FBI director James Comey committed federal violations in his leaking of memos related to the Russia investigation. The press and various politicians were aghast at the very suggestion that Comey could have violated the law. As I have previously observed, it is a serious mistake for the president and his staff continue these ad hoc comments about the investigation and its key figures. However, Comey has taken on an inviolate image in the media that ignores glaring questions over his own misconduct, an important story that has been largely ignored in most of the coverage.

At the heart of the alleged violations are a series of “memos to file” about Comey’s meetings with President Trump. Comey now admits that he gave at least one of the memos to a friend to leak the information to the media. He insists that he was merely trying to disclose material information to the public. However, when he was fired, it was clear that Comey would be asked to speak to congressional investigators in addition to FBI investigators. Moreover, many of us were already calling for the appointment of a special counsel, which seemed all but certain. In other words, Comey knew that both congressional and federal investigators would be obtaining the memos in short order.

There was, however, an obvious personal benefit to releasing the information. Before he was fired, both Democratic and Republican leaders, as well as former FBI officials, denounced Comey’s prior conduct as director. In addition, Rod Rosenstein, the respected and nonpartisan deputy attorney general, had already concluded that Comey should be fired due to his record at the FBI. That is not the narrative that Comey relished after being fired by President Trump. So he changed the narrative.

In so doing, Comey disclosed key evidence that undermined, rather than assisted, investigators. The value of these memos to investigators was to have the evidence without the White House knowing about their existence. In later interviews, any conflicting statements could be charged as false statements under 18 U.S.C. 1001, the most successful grounds for prosecutors in past Washington scandals. Moreover, Comey damaged his own value as a witness. Comey was tasked with finding leakers in the administration but then immediately became a leaker himself when it served his purposes.

Comey’s defenders have scoffed that the notion that Comey even acted unprofessionally, let alone illegally. Two fellows at the Brookings Institution, Susan Hennessey and Comey friend Benjamin Wittes wrote, “It’s hard to even understand the argument for how Jim Comey’s memory about his conversation with the president qualifies as a record, even if he jotted it down while in his office.” It is actually hard to understand how it is not. Comey prepared seven memos to the file about nine meetings with the president of the United States as the FBI director about an investigation that could target the president himself. That is something more than “jotting down” thoughts on your day at work.

Comey prepared these memos in the course of that investigation on a secure FBI computer. He then shared the information with his staff and discussed whether the information should be given wider distribution at the bureau. If FBI agents could simply release their views of potential targets from their “personal recollections,” there would be little left of the extensive FBI rules and regulations on the confidentiality of such information. The FBI has since confirmed that these documents are FBI material and that four of the seven memos were classified.

Likewise, Rosenstein indicated that the release of the material was improper and insisted “when we have memoranda about our ongoing matters, we have an obligation to keep that confidential.”

New York Times reporter Peter Baker also took exception to Sanders’s remarks and tweeted during the briefing that Comey never physically handed over any memos to the New York Times. However, Comey has confirmed that he did hand over at least one memo, and possibly more, to a Columbia law professor tasked with leaking the information. It is also still a violation to release FBI information whether by reading it aloud or handing over the document. (In fairness to Baker who is a widely respected journalist, he was objecting to the fact that Sanders indicated that the memo itself was leaked and was objecting on accuracy grounds).

This is precisely why all FBI agents sign an agreement against “unauthorized disclosure” of information and promise not to “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.” It adds that “all information acquired by me in connection with my official duties with the FBI and all official material to which I have access remain the property of the United States of America.” FBI employees are repeatedly warned that they can be charged under a variety of laws including those governing the removal or release of classified information as well as laws like the Privacy Act.

Some have questioned whether Sanders is correct that a criminal charge can be brought under the Privacy Act or whether it is common to do so. Indeed, violations of the Privacy Act can result in a criminal charge under Section III of the law. While it is true that such charges are rare (and in this case unlikely), this does not mean that the underlying conduct cannot be treated as criminal. Indeed, there has been little concern over the investigation of Trump figures like Paul Manafort or Michael Flynn for violations of laws like the Foreign Agents Registration Act, which is rarely actually prosecuted. Indeed, there have been only seven prosecutions under Foreign Agents Registration Act since 1966, when the law was revised.  Since we do not know what is in the Comey memos, it is still unclear whether any of the information falls within the Privacy Act.  For that reason, this is a possible but still unestablished violation.

Comey insisted that he wrote the memos as a type of shield, but he then used them as a sword once he was fired. None of this means that Comey’s actions warrant a criminal charge or that those actions exonerate others in the investigation, including President Trump. But at the end of the day, the White House is correct that Comey’s conduct can constitute violations of federal law and regulations.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

108 thoughts on “Whistleblower or Wrongdoer? Comey Defenders Ignore The Former Director’s Own Misconduct

  1. It’s also curious how the public has all but forgotten Mueller’s bungled investigations and documented instances of negligence, over-reliance on bully tactics, & misuse of power.while serving as FBI director. Why was a no-knock warrant executed in this case? How many documents were at risk of destruction during the brief period between knocking & entry? One small post-it note? It also signals to LE that dangerous no-knock warrants are not limited to drug crimes &/or dangerous suspects.

    Thank you for being a voice of reason, JT!

    Jane

  2. Mr. Turley,

    Perhaps I missed it, for the life of me I cannot understand why you have not commented on why the US Department of Justice dropped the case against Prevezon Holdings in US Southern District of New York last May – so conveniently the same week that Mr. Trump was hosting Russian politicians.

    I keep returning to your blog in the hopes you have written something about the facts in evidence over Trump’s financial dealings. Nope. Nothing.

    Yet, you continue to criticize Mr. Comey who is privy to knowledge, to which you are not, about Trump and how he operates. Trump tried to convince Mr. Comey to stop certain investigations.

    Comey is motivating by justice, rule of law and good character. Trump? We know he is motivated by making money any way he can, even if it means doing business with Russian money-launderers.

    Good grief. Why haven’t you burned your GOP membership card already?

  3. Whistleblower or wrongdoer? Yes–meaning both. There’s no mutually exclusive disjunction between whistleblowing versus wrongdoing. Whistleblowing does not excuse wrongdoing–if there is any wrongdoing. Whistleblowing is not, in and of itself, wrongdoing–unless there is no other wrongdoing upon which to blow the whistle.

    The question, itself, is a red herring.

  4. (1) The article correctly quotes the FBI Employment Agreement, “all information acquired by me in connection with my official duties with the FBI and all official material to which I have access remain the property of the United States of America.”

    (2) It would be my understanding that any documentation concerning that information — Comey’s “memos” — would constitute a government record that is “property of the United States of America,” concerning which the legal requirement is to turn such government property over to the government at the time of leaving office — that the right to possess government records expires when government employment expires. It’s really just a simple property issue — or perhaps a theft issue if the records are not turned over to the government.

    (3) However Comey continued to maintained apparently secret, unlawful possession of his “memos”/government record after being fired. This unlawful possession might be excused by the abruptness of the firing and his not having had time to return the records to the FBI, however his intentional USE of those government records after being dismissed from the government raises the issue of INTENT to unlawfully possess records he had no right to possess, and to use those unlawfully-possessed records to influence the actions of the government, not necessarily limited to appointment of a special counsel.

    (4) The FBI Employment Agreement also states that the employee can be held criminally culpable for unauthorized disclosure(s). I believe he can also be held criminally culpable for failure to return his “memos” to the FBI after being fired and/or BEFORE USING THEM FOR HIS OWN PURPOSES.

    (5) There’s also a question of Comey’s statements to Trump and, I believe, Congress that Trump was not personally being investigated. To me those statements are directly contradicted by the existence of Comey’s “memos” and his stated purpose for generating them, which is that he didn’t trust Trump. I don’t see how Comey’s conduct can be construed as anything OTHER than his own personal, off-the-record investigation of Trump. The “memos” were being kept as potential evidence of misconduct. That’s what an investigation is — collecting potential evidence of misconduct. I’d have to go back and review Comey’s testimony before Congress to see if he claimed under oath that Trump wasn’t being investigated, but I do recall that he testified that he told Trump that he wasn’t being investigated — and yet Comey, himself, was investigating Trump.

    Summary: Comey should be in very deep legal trouble, just based upon publically-available information.

    • Is it actually a surprise that former FBI Director, Comey, would change his own narrative? Is such an attempt not intended to salvage his own bogus narrative & reputation? Is it any wonder why many Americans distrust the existing ESTABLISHMENT? Yet, the ESTABLISHMENT is not unruffled by ordinary thinking Americans. WHY? Is it possible our political & financial elites protect themselves? Did the 2008 financial debacle not teach us anything? Did any malefactor of our financial system face questioning or a court of law for malpractice? In short, our anointed class of plutocrats have engaged in all sorts of extortion while claiming to be common citizens.

  5. I read in the NYT that Mueller “is also investigating whether Mr. Trump tried to obstruct justice when he fired James B. Comey…”

    Can anyone explain how Mueller, who is close friends with, and has a long history with James Comey, could possibly open an obstruction investigation without first recusing himself?

    My understanding is that Mueller is too close to Comey to conduct an objective, independent obstruction investigation and would have to recuse himself before even opening an official obstruction investigation. Am I wrong?

    • TBob – you are not wrong. Mueller could not investigate anything doing with Comey, they are friends. However, the rumor mill is that Mueller gave Comey blanket immunity for his testimony.

      • Paul – thanks, that’s what I thought…so I find it misleading when NYT reports that ‘Mueller is investigating obstruction.’ I heard the immunity rumor too and my guess is that Comey is in some trouble with or without immunity.

    • Clearly that is how incestuous the relationships are in Washington DC.

      Time to decentralize the govt.

      No need for our representatives to be physically present in Wash DC where they are unduly influenced by nefarious characters and criminals.

      Telecommunications and the internet should allow ‘our’ representatives to remain in their districts and still have access to all documents and testimony relevant to their jobs.

  6. Corruption in America must be contained.

    If investigation of it goes too far, most of the Western world will be brought down.

    Violating international sanctions, Sec. of State Clinton illegally approved the “Veropharm” deal as pay-for-play.

    The corrupt actors at this level are “Too Big To Jail.”

    If Hillary is prosecuted for the crimes she obviously committed with regard to e-mail and “private servers,”

    Obama will be convicted for his manifest and indefensible participation.

    The prosecution is off, folks.

    All roads lead to Obama.

    And we ain’t goin’ there!

  7. I’m not sure why Prof Turley & AG Sessions are letting the tratiorous American hating trash, Clintons, Bushs, Comey, Mueller, Rosenstein, etc. off the hook???

    Listen below to two lawyers, Lionel & Ortel explain just a few of their crimes against our country.

    • Hilarious! You ignorant clowns are the lowest information voters on the planet, brainwashed and buried under a mountain of denial. You can hire some shyster lawyer to claim the moon is made of green cheese or the Red Pill was a suppository. It was, you know? How’d it taste? Smells like real desperation in here. Up to your knees in flop sweat. Oh, wait… you are all your knees already. Ankle deep then.

  8. Whistleblower or Wrongdoer? Comey Defenders Ignore The Former Director’s Own Misconduct

    Poor J. Edgar Comey he hoisted himself with his own petard.

    Boo-Hoo.

  9. When Mr. Comey went after HRC he was a hero, when Mr. Comey goes after Trump well, that’s it, way over the line right? While JT and most of his readers are digging up money for General Flynnghzi, I hear he needs legal expense money, I hear he takes rubles, maybe just maybe JT will stop with this LIE, SPIN, DISTRACT ,DEFLECT, and repeat crap. Maybe JT will look into his heart and see the the General DID do one tenth of what he is accused of and spend his time LOCKING HIM UP.

    • He never ‘went after HRC’ and was never called a ‘hero’ by partisan Republicans. He let her skate on charges that would have gotten an ordinary person prosecuted. He did so indubitably because the matter would have been buried had it been referred to Loretta Lynch for prosecution. He did one thing that was inconvenient to HRC, and that was to answer an inquiry made by a congressional committee, informing them they were investigating certain related matters having to do with computers in the possession of Huma Abedin’s estranged husband, Anthony Dickpix Weiner. Partisan Democrats evidently believe he should have stonewalled the committee, because that’s what partisan Democrats do when a piece of information is inconvenient to the Democratic Party.

      • frankly, I cannot see where this is related to this topic. Maybe you meant to post it to another thread? And I also don’t see your point, anyway. Are you wishing that Flynn would be bankrupted by the expense of defending himself?

  10. I went through the various news sources again just to sure. One article but buried under a deluge of whatever…

    What would you tell the Framers?
    Chris Stirewalt
    By Chris Stirewalt, Fox News

    That one mentioned the Constitution.and Constitution Day

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