Below is my column in the Hill Newspaper on the news that former FBI Director James Comey will be teaching a course at William & Mary on “ethical leadership.” While I believe that having their alum teach a class would be a terrific opportunity for their students, this particular subject is obviously controversial. Moreover, it seems to fit an agenda by Comey to address criticism over his ethical choices. There is nothing in Comey’s past that would have made this an obvious choice for his expertise that clearly encompasses national security, surveillance, privacy, and other area of constitutional and criminal law. Curriculum should not be a vehicle for public relations.
Here is the column
Curriculum changes at the College of William & Mary usually are not national news, but a recent entry on the course selection was something of a surprise: The college will offer a new fall course on “ethical leadership.”
That in itself is unremarkable but the professor is one James Comey, former director of the Federal Bureau of Investigation. While Comey has much to offer students, given his background and knowledge, it is a bit premature to view him as an expert on ethics, given the allegations concerning his conduct after his termination. Indeed, his record at the FBI would make for a compelling case study of what not to do as an ethical leader in government.
Before Comey’s termination by President Trump, many had called for his removal due to his questionable judgment during the investigation of Hillary Clinton for the use of an unsecured personal email server to handle classified State Department information.
Indeed, Deputy Attorney General Rod Rosenstein wrote a blistering memo that called for Comey to be fired for “serious mistakes” and noted that both Democrats and Republicans were united on the need to get rid of him. Rosenstein cited a long list of former attorneys general, judges and leading prosecutors who believed that Comey “violated his obligation to ‘preserve, protect and defend’ the traditions of the Department and the FBI.”
Rosenstein and these former prosecutors said that Comey “violated long-standing Justice Department policies and tradition.” Rosenstein added that, despite the wide range of opinions condemning his actions, Comey “refused to admit his errors.”
Comey’s choice for an ethics course, however, is more curious when considering what occurred after his termination. Comey, who was tasked with finding leakers in the Trump administration, immediately became a leaker himself when it served his purposes. He removed seven memos that he had written about the Russian investigation and his troubling interactions with President Trump.
Despite efforts to rehabilitate Comey by experts at the time of his firing, those memos were clearly FBI material — not, as suggested on cable networks like CNN, some type of personal diary or journal entries by Comey — and potentially classified. The FBI later confirmed that, indeed, the memos were FBI material and Comey was barred under FBI rules from simply removing the material.
When Comey decided to become a leaker, it was not (as, again, was suggested) to guarantee that a special counsel would be appointed. Many of us had already called for such an appointment. Moreover, Comey knew that he would called within days to testify before Congress and the Senate Intelligence Committee would inevitably demand these memos. The more obvious reason is that Comey is an old political hand in the Beltway and wanted to control the narrative of coverage, particularly in changing the focus from the Rosenstein memo and those who previously called for his termination.
More importantly, Comey decided to leak the information by passing the memos to his close “friend,” Columbia University Professor Daniel Richman. Now, the FBI has confirmed that four of the seven memos that Comey removed are believed to be classified. He reportedly gave four memos to his friend to leak to the media.
That would suggest that at least one memo given to Professor Richman was classified, meaning that Comey not only removed classified material from the FBI without prior disclosure or approval but then sent the memos to an unauthorized third party for the purpose of disclosures to the media. That is not only demonstrably unprofessional and unethical, but potentially criminal.
Now, the conservative website The Federalist reports that Richman is claiming to be representing Comey. The website also states that Richman refused to say when his status changed from being the “friend” described by Comey in his testimony to “counsel” for Comey. The status change could create barriers for those seeking answers about what Comey said and sent to Richman. However, the addition of a claim of representational status could create new ethical issues regardless of when that status began.
Representing individuals is not a license to violate federal law. Indeed, the use of such status as a shield for unlawful conduct could add an ethics violation to a potential criminal violation. In fairness to both men, it is unlikely that the memos were marked as classified. However, this is due to the fact that Comey appears to have failed to go through the required process of review before removing the material from the FBI.
What Richman knew was that he was being used as a conduit to disclose information to designated journalists. It is not clear if he sought to confirm the status of this material before serving in this capacity. While he would not be the first lawyer to leak information or go “on background” with reporters, he was in possession of material from the FBI and was being asked to secretly distribute it. That is not the role that many lawyers would feel comfortable performing without confirming the details, such as whether the material was reviewed and released by the FBI.
If representational status will be cited to refuse to answer questions, it is a gamble that neither Congress nor Robert Mueller will actively investigate Comey for federal violations. There is a “crime-fraud” exception to attorney-client privilege to such claims of confidentiality.
It is not clear if any or all of this will be material for Comey’s new course on ethics. It is rare for lecture powerpoints to include potential statements against interest by the professor, but this is one course that many people might want to audit.