Checking The Fact Checkers: The Washington Post Concludes Comey Likely Violated FBI Rules But Still Criticizes Sanders For Raising “Possible” Illegality

220px-Washington_Post_buildingBelow is a column that I wrote for the Hill Newspaper in response to a “fact checker” column by the Washington Post.  I have written for the Washington Post and have great respect for the publication.  Indeed, I have objected to the attacks by President Donald Trump on the Post and the New York Times which remain two of our premiere journalistic organizations. However, I was frankly floored by the column by Glenn Kessler in criticizing White House Press Secretary Sarah Huckabee Sanders.  I have discussed previously how there has been a palpable bias in reporting on the Trump Administration.  It is often that case that some journalists are not simply satisfied with disagreeing with the Administration. They sometimes take judgment calls or opinions and declare the Trump side to be simply factually incorrect.  This relieves the need for readers to address the opposing view of controversies like the alleged misconduct of former FBI director James Comey.  Those views are simply dismissed as untrue.  This is a prime example.

Here is the column:

440px-Comey-FBI-PortraitI recently wrote a column about the lack of objectivity in the media in the coverage of the Russian investigation, and specifically, the conduct of former FBI director James Comey. I have raised professional and legal concerns over Comey’s removal of memos from the U.S. Justice Department and his leaking of at least one memo to the media. White House press secretary Sarah Huckabee Sanders this week raised these same concerns in a press conference. As if on cue, the Washington Post assigned her two “Pinocchios” for saying that Comey’s actions “were improper and likely could have been illegal.”

However, the Post awarded two such findings after concluding that Comey did in fact violate FBI rules and regulations. While I have strongly disagreed with the White House attacks on the media, I believe that this is a prototypical example of the bias in reporting on these controversies. As I have repeatedly said, none of this means that Comey should be charged criminally, but it is important that we recognize the underlying violations that he committed in this controversy.

In her Sept. 12 press briefing, Sanders said, “I think there is no secret Comey, by his own self-admission, leaked privileged government information. Weeks before President Trump fired him, Comey testified that an FBI agent engaged in the same practice. They face serious repercussions. I think he set his own stage for himself on that front. His actions were improper and likely could have been illegal.”

Sanders later repeated a litany of laws and regulations to support this claim from FBI employment agreements to nondisclosure rules to the Privacy Act of 1974. Every line of that statement is unassailably true. The FBI has already indicated that these were FBI documents and nonpartisan Justice Department officials has indicated that they should have been treated as privileged or confidential and not disclosed. Moreover, as discussed below, even the Post recognizes that they “could have been illegal” depending on the outcome of any investigation.

The Post begins its analysis by saying that Sanders appears to be relying on my past writings but then omits key portions of that analysis in finding Sanders is being dishonest. Consider four of the more curious “findings” of the Post.

Post Premise #1: Comey violated FBI rules and regulations but it really does not matter

Perhaps the most bizarre aspect of the Post review is that it expressly confirms much of Sanders’s statement. For months, I have been disagreeing with experts who steadfastly denied that this information constitutes FBI material subject to bureau restrictions and control. Many have suggested that the memos are just Comey’s personal recollections like diary entries and fell outside of such regulations.

Just yesterday, I quoted the very expert relied upon by the Post in its fact-checking analysis to highlight this view. Brookings Institution fellow Susan Hennessey 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.” However, when called by the Post, Hennessey is quoted as saying that she “agrees that Comey probably violated his employment agreement. ‘But so what? The remedy is the employer fires you.’” If the memos were not FBI records, why would it have violated his employment agreement?

Hennessey is dismissive of any significant to Comey violating his signed obligation as a former FBI employee and the underlying FBI regulations. Such violations are, at a minimum, unethical and violations of the core rules governing the handling of FBI material. So what? Comey not only agreed to but enforced against others as director. However, the Post joins in dismissing any importance to Comey acting unethically by claiming, “Comey probably violated his employment agreement, but he was already out of the job.”

This ignores that fact that Sanders was saying he violated federal rules and regulations, which the Post indicates is true. Moreover, the Post was recognizing that Comey’s own statements about his proper handling of this information was likely false, and he committed an act that would, at a minimum, have led to his former subordinates being fired.

Post Premise #2: None of the memos taken by Comey were classified because he said they were not

Despite the arguments that the memos were not FBI material, the bureau has confirmed that not only did Comey take FBI material, but four of the seven memos were classified. The Post does acknowledge that some of the memos may have been classified. It then, however, claimed that Sanders spoke falsely by suggesting that Comey’s actions “could have” violated federal law on this and other grounds. Why? Because Comey said that they were not classified.

The Post goes at length in recounting how Comey acknowledged that some of the memos were classified, but that he said that he “made sure that one particular memo was unclassified, and this is the memo that Comey has acknowledged giving to a friend with the express purpose of it getting into the media.” The Post, however, ignores a few glaring problems.

First, news accounts indicate that Comey may have taken multiple memos from the FBI. Moreover, Columbia Professor Daniel Richman reportedly turned over other material to the FBI from Comey. If they included any of the four classified memos, he illegally removed classified material from the FBI. The other three memos or related material may also be classified as confidential or privileged by the FBI according to reports. Second, we still do not know what information was disclosed or memos released to third parties. Third, Comey does not get to decide that question unilaterally.

The reason that we have the disclosure provisions for FBI information, which the Post itself admits Comey likely violated, is for the review of such material to determine their confidentiality or classification. Given his violation of the FBI rules governing such material, there is a good-faith concern that he “could have” violated federal law. While the Post accuses Sanders of making assumptions, it does precisely that in dismissing these concerns by saying that “in fact he leaked a single memo that he has described as unclassified.”

First, Comey described the memos as unclassified. We do not know who was shown any of the other memos by Comey and his description of the unclassified memo is immaterial. Since we know he improperly removed and disclosed FBI information, it is not mere speculation to believe that classified information could have been removed or released. The Post said that whether “it contained privileged information has not been proven.” But as I noted in prior columns, the Justice Department did say that the information was FBI information and all such information is treated as confidential or privileged until released after review.

Moreover, Deputy Attorney General Rod Rosenstein directly contradicted Comey in saying that “when we have memoranda about our ongoing matters, we have an obligation to keep that confidential.” Finally, conversations about an ongoing major investigation between an FBI Director and the President of the United States in the Oval Office are normally treated as presumptively privileged until such privileges are waived by the White House.

Notably, the Post has not shown the same assumptions of legality with other past officials accused of mishandling or disclosure either classified or privileged information. The Post suggested that Rep. Devin Nunes (R-Calif.) may have released classified information by discussing the investigation with the media, but does not appear willing to allow others to raise the same concerns with regard to Comey.

Likewise, the Post wrote exclusively on the need and basis the prosecution of Gen. David Petraeus for mishandling sensitive and classified information. It was not deemed innuendo to suggest that there was a legitimate basis for investigation of possible violations. Other stories show the same willingness to consider possible violations as with the Post’s editorial and journalistic columns on the release of classified information by Scooter Libby, former aide to Vice President Dick Cheney. Yet, Comey’s admitted violation in removing FBI material is considered pure innuendo by the Post.

Post Premise #3: The Privacy Act is irrelevant to Comey because it does not cover this type of information

While not the focus of my prior analysis of the Comey violations, I do mention that such disclosures can violate the Privacy Act, which is incorporated in various FBI agreements and employment documents. The Post however says that this “does not appear to make much sense. The Privacy Act is mostly concerned about the collection and dissemination of information about people that is maintained in government files, such as personnel records or financial and medical information.”

The Post then cites one such Privacy Act reference in the FBI’s National Name Check Program. The Post, however, misses the point. The law prohibits “any record which is contained in a system of records by any means of communication to any person, or to another agency” unless one of a series of enumerated exceptions. (A record is defined as “any item, collection, or grouping of information about an individual” including but not limited to information on a person’s criminal history or identifying information.)

Comey violated FBI procedures for the release of this FBI information. We do not know what information was in the memos because Comey never allowed them to be reviewed before taking them. Moreover, Comey admits that he spoke to Trump about a major investigation and refused to publicly say that he was not under investigation because he thought he could become a target of the investigation. Thus, he was memorializing a series of field meetings with a potential target of a federal investigation.

As I have stated, this is not the most serious potential violation but it is a law referenced in the rules violated by Comey in his removal and release of FBI information. The FBI website warns employees that “dissemination of FBI information is made strictly in accordance with provisions of the Privacy Act” and “FBI policy and procedures regarding discretionary release of information in accordance with the Privacy Act.”

On a related note, the Post misrepresents my prior statement that Comey’s actions conflicts with his ethical obligations as a public official and as a lawyer. The Post stated that while “Turley referred to a duty to a “former represented person” (presumably the president), Comey never acted as an attorney for the federal government and no client-attorney privilege was involved.” The quote is presented in a remarkably misleading way. My column actually states “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 column then goes on to explain that “Comey is also subject to bar rules on releasing information inimical to the interests of his former employer. For example, under professional rules, lawyers need to secure authority to release information that reveal a confidence or secret of the lawyer’s client, use a confidence or secret of the lawyer’s client to the disadvantage of the client, or use a confidence or secret of the lawyer’s client for the advantage of the lawyer or of a third person.

The point is that even government lawyers have ethical obligations to their former employers, in this case the FBI. Comey violated that obligation by (as the Post accepts) ignoring the rules governing the release of potentially classified or confidential or privileged information. The Post also omits that I have expressly denied representational claim in published columns.

Post Premise #4: Sanders is not entitled to judgment calls about the controversy but Comey is

The final premise sums up the problem with all of the prior premises of the Post. At the end of its analysis, one would have expected the Post to say simply that this is a good-faith but contested view of Comey’s conduct. Indeed, the Post admits that “to some extent, the level of possible violations is a judgment call, open to legal interpretation, making it problematic to assign a Pinocchio rating.” That is where it could have easily ended the analysis, even with the omissions and contradictions discussed above.

Instead, the Post went ahead and made precisely that judgment call in favor of Comey by saying “at the very least, Sanders’s spin is worthy of two Pinocchios for its innuendo and incomplete or inaccurate information.” So, the Post insists that no one can reasonably cannot say that Comey may have removed or released either confidential or classified FBI information in violation of federal law. Why? Presumably because it is Comey’s judgment call and by extension the Post’s judgment call. However, Sanders saying that Comey “could have” violated federal law was simply “innuendo.”

The Post concludes that the memos were, despite Comey’s denial, FBI material and that he violated FBI rules in removing and releasing such information. It also accepts that employees under Comey as director could well have been fired for such violations. It also agrees that the memos might have been either classified or privileged, even though there has been no final determination. Regardless, the Post awarded two Pinocchios for Sanders stating that Comey’s actions were “improper and likely could have been illegal.”

I have to give the Post two “Blue Fairies.” (I do not want to steal the Post’s Pinocchio signature motif so the Blue Fairy in the Disney story will do). After all, it was the Blue Fairy who said, “A lie keeps growing and growing until it’s as clear as the nose on your face.”


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

79 thoughts on “Checking The Fact Checkers: The Washington Post Concludes Comey Likely Violated FBI Rules But Still Criticizes Sanders For Raising “Possible” Illegality”

  1. “I have discussed previously how there has been a palpable bias in reporting on the Trump Administration.” And I have noticed a ‘palpable bias in reporting on the Trump Administration’ on this very blog. No posts on the Manafort news?

    1. Looks like the “news” is that Obama “wiretapped” Trump as a political abuse of power – somebody tell “Fake Jake.”

        1. Right…no comment. Manafort was legally and properly wiretapped. And he was the campaign manager! Of course they had phone conversations. Maybe you should instead question why Manafort was hired.

            1. There was a FISA warrant. I’d say that’s pretty good indicia. And the investigation of Manafort dates back to at least 2014. Again, not sure why you’d want someone like that as your campaign manager.

              1. JC, The first wiretappng showed nothing. That means they found nothing despite the wiretap. To date I am not sure what they found when they wiretapped him while he was a manager for the Trump campaign, but if they found nothing the first time why do it a second time except for the fact this was a way they could eavesdrop on the head of the opposite party and soon to be President to find information to destroy him.

                I see you have absolutely no regard for civil liberties or understanding what is or isn’t proper. You should live and work in Cuba where you would be more comforatable. Maybe your boss should do a wire tap on your home and elsewhere so he can know what you are thinking. All he needs is a judge that wants to do him a favor. Maybe he will find you with another person so he can prove infidelity to your spouse even if you did nothing. Copy and paste works miracles.

          1. “Manafort was legally and properly wiretapped.”

            And Hillary was “legally and properly” convicted of crimes by Comey just before he corruptly exonerated her.

            Right. And Oswald was legally and properly convicted and executed for the JFK assassination.

            And Samantha Power, at the UN, needed to “unmask” 300 times.

            And it was legal and proper for Obongo and Rice to “unmask” at all – except it isn’t.

            And it was legal and proper for Hillary to engage in pay-for-play as Sec. of State and accept generous contributions to the “Clinton Foundation” immediatly subsequent to her approval of the Abbott Labs acquisition of the very Russian “Veropharm” during sanctions which precluded and made the “deal” illegal.

            The nature of abuse of the power of government against the People is lost on you. Try this from Wiki:

            “Under color of authority is a legal phrase used in the US indicating that a person is claiming or implying the acts he or she is committing are related to and legitimized by his or her role as an agent of governmental power, especially if the acts are unlawful.”

            The shadow government, Mueller, Comey, Clinton, Bush et al., will do everything it can to break and eliminate Manafort, Trump and everyone around them because Trump and his supporters threaten to “drain the swamp.”

            You didn’t think the swamp would just quietly acquiesce, did you?

  2. I have concluded it’s unreasonable to expect msm “journalists” to be reasonable!

  3. “I have written for the Washington Post and have great respect for the publication.”–Jon Turley

    Translation: “I have to say I respect the Washington Post because they publish things I write from time to time.”

    While some may denigrate the Washington Post by calling it the “Washington Compost,” I too have great respect for their employees. In fact, I have great respect for presstitutes everywhere. While they may be presstitutes, they totally enjoy being presstitutes and presstituting themselves on a regular basis. You have to admire that kind of conviction.

  4. “The Post concludes that the memos were, despite Comey’s denial, FBI material and that he violated FBI rules in removing and releasing such information. It also accepts that employees under Comey as director could well have been fired for such violations. It also agrees that the memos might have been either classified or privileged, even though there has been no final determination.”

    There is a lot of factual information missing. WaPo takes the view that Comey is innocent due to that lack of actual facts. JT doubles down on Comey being guilty in light of the same lack of facts.

    If the remedy for someone disclosing FBI information is loss of job, then Comey already was “remedied”. Disclosure of discussion with the President is classified? The President had already declassified the conversation. This is the only fact. Anything about other memos is guess-work. I will wait for more facts before finding Comey guilty of anything that hasn’t already been “remedied” by his being fired.

    Does JT have a personal interest in Comey being guilty, apart from his previous articles making that declaration?

    Those being skeptical of anything out of the White House have already noted past WH declarations as part of a pattern of lying, obfuscation, and “look at this, not Russia”.

    1. Good points. As to “look at this, not Russia” — here’s a question: has there been any actual evidence of wrongdoing by Trump?

            1. Not true. Mueller’s excellent investigative work has revealed that Donald Trump, Paul Manafort, and Jarad Kushner at each ordered salads with RUSSIAN dressing on October 23, 2016. This could not be a wild coincidence and if anybody can get to the bottom of this, I’m convinced that Mueller can. Mueller and his team of dedicated investigators are reviewing surveillance videos and wiretap recordings at this very moment. I smell not only indictments but convictions! Mueller is definitely worth the $47,352,862.47 that he and his team have spent so far investigating Trump.

          1. Wrong, Bob. Mueller’s excellent investigative work has revealed that Donald Trump, Paul Manafort, and Jarad Kushner had each ordered salads with RUSSIAN dressing on October 23, 2016. This could not be a wild coincidence! Indictments and convictions are certain to follow on this powerful and persuasive new evidence!

      1. Obstruction of an investigation. The statements by H-Sanders could also be considered obstruction if it was the President or others under investigation who instructed to her to make her assertions.

  5. Really? You have respect fot NYT and WaPo? They are horribly biased and frequently produce incorrect or junk articles. They are pretty much worthless for political reporting. Do you really respect them, or just have to say that so that you don’t get to much blow back.

  6. Fact Check: Glenn Kessler, not David, is the name of The WaPo fact checker. If you’re gonna fact check the fact checker, you outta get his name right.

    1. Glenn Kessler is a veteran diplomatic correspondent who writes the popular “Fact Checker” blog for The Washington Post. Wikipedia

      1. Right. Whoever wrote the essay – I assume Professor Turley since it has his name on it – initially incorrectly referred to Glenn Kessler as “David” in the first paragraph.

        Someone has made the editing correction without acknowledging the initial error.

  7. The fact checkers are at best very superficial in their search and at worst they are pure partisans. Added together they become worthless.

  8. And then let’s not forget Mr. Comey who let Hillary slide using the excuse of ‘intent.’ Full well knowing in National Security crimes, especially with an open, public admission ‘intent’ is not , has not been and shows no signs of ever being one of the required elements

    Even Manning who served time and the submarine photo guy could not use the excuse of intent.

    Consequently Clinton is still on the hook along with her staff and supporters James Comey AND Loretta Lynch being two of them.

    But it’s easily investigated. Who was responsible in the State Department for the Security Program and ask for his/her CYA file.

    Same with Mueller on his collusion investigation. All that takes is a one line statement and the investigation is over. Collusion is NOT a crime.

    WaPo among other half assed publications continue to be supporters of a National Security crime and their intent is likewise of no consequence but their fact checking is also of no consequence.

    1. Micheal Aarethun – I think they gave immunity to all of Hillary’s aides and she was interviewed without being put under oath.

  9. Glenn Reynolds has been saying for years that newspaper ‘fact-checkers’ like Kessler were dubious characters. One might wager that newsrooms nowadays are such a sinkhole of Monovox that maintaining integrity and critical distance is just not something they do.

  10. Meanwhile HRC goes on a pity me tour and has anyone heard who the new flag bearer is for the Democrats? Or has anyone heard what the Democrats are doing in the states that might have had their voting systems compromised?
    They just don’t get it. It was not a bad dream.
    Maybe they shouldn’t have pissed off the Bernie Sanders voters.Or possibly looked a little more carefully at whom they elected as a nominee.
    The Republic is still standing. And apparently in need of more military toys to please all of its constituents.
    The funny thing is somehow if her majesty Was crowned POTUS I’m not sure anything would be different than what’s happening now other than real estate deals and jobs for the venal courtesan crowd.

    1. Well, it’s obviously unfair that voters get to know what HRC and her team actually think of them.

  11. The Pinko press moves ever further from good journalistic practices, witness a recent Guardian headline:

    “It’s an alpha male thing: what dominant chimpanzees and Donald Trump have in common

    When it comes to US presidents, we expect to see a combination of prestige and dominance. Donald Trump’s Twitter tirades and demands for fealty show he prefers the latter – an ape-like strategy for success”

    Imagine the (deserved) outcry if Fox News had written that column about Obama.

    I suspect that the shrill howling from the left is pleasing to Pinkos (the core audience of the NYT & WaPo), but grating on average Americans (the few who continue to read the leftist press).

    1. That’s pretty sad Steve. Whenever I hear of the UK, and the Guardian, I instantly think the Guardian would be a good backup band for Nero’s violin. That island’s about had it.

      1. slohrss29 – I know I am nit-picking here, but Nero had a lyre, not violin and there really is no evidence he set the fire. In fact, there is good evidence to show that he tried to help put it out.

  12. Thank you, Professor Turley, for speaking out for honesty and objectivity. It’s so refreshing!

  13. Turley, you have to read the W. Post and then the W. Times. Then read the NY Times and Fox News. Both sides are somewhat biased. What is interesting here is I have yet to read any remarks of yours pertaining to the extreme bias found in the right wing rags. As far as getting a close to unbiased reporting, Reuters and the International Herald Tribune are as close as I’ve read. The exaggerations and lies reported by the W. Post coming from Trump have been bloated somewhat. Instead of well over a thousand lies spouted by our President since January, there have probably only been eight or nine hundred. Still, compared to the W. Times and Fox News, the W. Post and the NY Times are far, far, more credible.

    For a more pertinent critique of newspapers read the W. Times and notice that they simply don’t print the stories that make the right look bad. The front page of the W. Times is mostly about ‘Man bites Dog’ stuff. It is disappointing, however, when the W. Post and the NY Times goes tabloid.

    What could be fueling the W. Post’s sloppy commenting is that Trump has actually slowed down on the blather and lies. He has made some minor smooth moves like making Sessions heel, working with the Democrats and therefore firing a shot across the Republican bow, and talking out of both sides of his mouth-not just the crazy side. Who knows, maybe a working President simply comes with a TV show cavalcade of Jerry Springer type entertainment. Italy had Berlusconi for a long time and is still there. The US looks like it will be able to weather our buffoon.

    1. If that was a rebuttal it failed. But then what else does one expect from an unschooled foreigner.

    2. So much for opinion from the Canuck Clarion – but on the other hand …to be fair the attempts are not entertaining. Personally I don’t believe their is an Isackbaconsandwich it’s just another version of The Collective and machine part. So? No Ad hominem here. That requires the presence of a human.

  14. The Post and NYT are premiere defenders of the status quo for members of the ruling class. As such, they publish opinions that protect and serve the interests of the 1%. Bob Woodward, in his role as an intelligence asset, played a role in what has come to be known as The Silent Coup – which resulted in Nixon’s resignation. As President, Nixon’s views on a guaranteed national income, detente with Moscow, and establishing diplomatic relations with China were all too frightening to the Ruling class at that time.

    1. Bill, please don’t forget other intel stooges Wolf Blitzer, Barbara Starr and of course the infamous Mr. Ignatius.

  15. JT, I do not know why you continue to support both the Post and the Times. It is stuff like this that made many of us stop reading them long ago.

      1. Ken – first I go to Drudge, the Breitbart. Both give me an overview of the news I would not get in the LameStream Press.

        1. Paul, have tried Hotair, the Federalist or Redstate?
          I’ve been reading Ed Morrisey since his Captain Quarter’s days and Molly Hemingway usually has something good at The Federalist.

        2. Paul, yes that provides you with the Faux Neuz version. Why not include RT as well?

          1. David Benson – Drudge is an aggregator so there is a lot of stuff to look at. Yesterday there was an article on renting used sex dolls to try before you buy one. With Breitbart, I probably read two of the 30 or so articles. The rest I just scan the headlines. I used to take the NYTimes, but they started burying the lede in the 8th para, so I stopped reading them. When I have to get to the 8th paragraph to find out what really happened, I know the paper is pushing propaganda.

            1. Paul – there isn’t a single person in Washington DC who doesn’t check Drudge at least twice a day — and also which is another aggregator of articles. I first learned about from Camille Paglia who also checks out Drudge daily. I am always curious as to what David Benson considers Real Newz these days.

              1. I mention Camille Paglia because she is far from a right winger, yet she also skims both Drudge and Lucianne – and probably Breitbart too.

              2. TBob – I know that I am getting to the point where if someone says the sky is blue, I go outside and check. 🙂 They run Fake News for a couple of days and then correct it. Rassumsen reported last week that 91% of the reporting on Trump was negative. And last night’s Emmy programs was another example. However, it did have low ratings, as does the politized NFL and ESPN.

    1. What are the “Post” and “Times?” Are they anything like Pravda and Izvestia…Der Sturmer, perhaps?

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