Below is my column on the recent Inspector General report on the conduct of James Comey in removing and disclosing FBI material after he was fired.
Here is the column:
Two years ago, former FBI Director James Comey came out with a book that celebrated himself as a paragon of “ethical leadership,” a subject that he later taught at the College of William and Mary. Comey declared, “Ethical leaders lead by seeing above the short term, above the urgent or the partisan, and with a higher loyalty to lasting values, most importantly the truth.” If that is the case, the new Justice Department inspector general report released on Thursday establishes that Comey is the very antithesis of the ethical leader he described. Comey was found to have violated both federal law and regulations for his own gain, and he made critical decisions that put personal over institutional interests.
Nevertheless, Comey released a statement portraying the scathing report as a type of victory and encouraged his critics to send their apologies to him. It was a “Captain Queeg” moment when myth borders on madness. Rather than rave about who stole his strawberries, as Queeg did in “The Caine Mutiny,” Comey claims someone stole a reputation that he tossed away two years ago. The report states that Comey not only knowingly violated rules governing all FBI employees, but his decisions “set a dangerous example for the over 35,000 current FBI employees.”
It details how Comey removed FBI memoranda and then used his friend, Columbia Law School professor Daniel Richman, to leak the contents of one memo to The New York Times. Several of the memos were later found to contain privileged, sensitive or classified information. The FBI seized the memos and had to “scrub” the computer of Richman to remove the unauthorized material provided by Comey. The report also says Comey later acknowledged that some of the classifications were “reasonable.”
Of course, facts are largely immaterial in matters of mythology. When Comey removed FBI material and arranged for a leak to the media, the coverage stayed positive despite some of us noting that the “memos” removed by Comey were FBI material and potentially classified. At a minimum, he violated clear rules against leaking such information to the media, a curious decision for the person tasked previously with finding leakers. I noted that such leaks were entirely unnecessary, given other options for getting this information to investigators and to Congress.
Those points were met with furious objections from analysts who insisted that the memos were personal writings akin to diary entries. Legal expert and former FBI special agent Asha Rangappa said they constituted “personal recollections,” and Brookings Institution fellow and CNN legal analyst Susan Hennessey wrote that it is “hard to even understand the argument” for how his “memory about his conversation with the president qualifies as a record, even if he jotted it down while in his office.” When I wrote that the memos were covered by the Federal Records Act and by Justice Department rules barring their removal or disclosures, the arguments were dismissed by the experts on various cable networks.
When former White House press secretary Sarah Huckabee Sanders described the conduct of Comey as “improper and likely could have been illegal,” she was given two “pinocchios” as having falsely accused him. Comey then turned to social media, much like President Trump, to further pump up his record. He started with tweets under pseudonyms but later put his own name on tweets showing him walking through forests or standing alone while quoting sources like the Bible, “But let justice roll down like waters and righteousness like an ever flowing stream.”
Comey was building a personal brand, just like Trump, that culminated in his publishing his sensational book “A Higher Loyalty.” Once again, the media was as unrelenting as it was uncritical. Few outlets mentioned the concerns over a former FBI director rushing out a book soon after leaving office in a sharp departure from his predecessors. Comey became an instant millionaire with a book tour where he was essentially met with palm fronds and cries of “hosanna.” He knew that any final reckoning on his conduct would not come before months, if not years, of investigation.
The inspector general has confirmed what was clear and obvious. The memos were FBI material, and Comey did violate provisions of the Federal Records Act and FBI rules clearly barring their removal and disclosure. Moreover, the inspector general agreed that it was not necessary to guarantee an investigation into Trump. Investigations were ongoing and the report cites other “options” that Comey refused to use. The report concludes, “What was not permitted was the unauthorized disclosure of sensitive investigative information, obtained during the course of FBI employment, in order to achieve a personally desired outcome.”
Despite Comey’s spin, the Report did confirm that “Memos 2 and 7 contained small amounts of information classified at the ‘CONFIDENTIAL’ level.” In other words, they were classified at the lowest level but still nonpublic, classified material. They were not declassified under 2018. Of course, Comey did not know what classification would apply because he removed them before they were reviewed. Either way, as I said at the time, it was unlikely that he would be prosecuted on such a case and he knew it.
The reason Comey violated these rules was as obvious then as it is now. Leaking the memos was designed to improve his stature in the media, and it worked. Comey transformed himself into a badly needed hero to use against the villain Trump. He knew the memos would change the focus of media coverage to his new role as a federal government whistleblower.
Forgotten were prior calls for Comey to be fired by Democrats and Republicans alike for his poor judgment during the investigation of Hillary Clinton and her use of unsecured servers for communications. There was little need to discuss how the review by former Deputy Attorney General Rod Rosenstein found “serious mistakes” by Comey. It was no longer breaking news that Rosenstein also cited a long list of former attorneys general, federal judges and leading prosecutors from both parties who believed Comey violated his obligation to “preserve, protect and defend” the traditions of the Justice Department and the FBI.
Rosenstein also noted that Comey “refused to admit his errors,” including his obvious violation of “long standing Justice Department policies and traditions.” That was even before Comey decided to remove FBI material and leak information to the press, yet he is still refusing to admit his errors. Shortly after the inspector general report was released, Comey returned to spinning his conduct as somehow vindicated by the findings. He tweeted, “I don’t need a public apology from those who defamed me, but a quick message with a ‘sorry we lied about you’ would be nice.”
Comey is referring to the Justice Department decision not to charge him with releasing classified information and no finding by the inspector general of an intentional release of classified, as opposed to sensitive, information. However, many of us who have been critics of Comey have long said that his prosecution was unlikely. Comey is relying on the fact that his memos were not found to have contained classified or sensitive information until after he gave the information to The New York Times.
The inspector general report says that, following the publication of the New York Times article, a classification review was conducted. The reason is that Comey never asked for such a review, any more than he asked for permission as a fired FBI employee to remove the material or leak it to the media. According to the report, senior officials stated they were “stunned” and “shocked” by Comey removing and disclosing the information.
Comey knows that, ultimately for him, none of this matters. He has magnanimously accepted the apologies that no one has offered and claimed vindication that appears nowhere in the inspector general report. That is simply the benefit of being the author of your own mythology.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.