Two years ago, I wrote a column in the Hill concerning a “fact checker” column by the Washington Post. At the time, I was surprised by the column by Glenn Kessler in criticizing White House Press Secretary Sarah Huckabee Sanders over her references to James Comey and his actions following his termination. I had written a column about the lack of objectivity in the media just before the article. As if on cue, the Washington Post assigned Sanders two “Pinocchios” for saying that Comey’s actions “were improper and likely could have been illegal.” I used the article as an example of the bias in reporting on these controversies. Those comments have now been reaffirmed by the Inspector General in its recent report. Will the Post now issue its own correction with the removal of two noses? More is at issue than political cosmetics in correcting the record on Comey’s conduct.
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.”
As I said at the time:
“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.”
What is interesting is that the Post relied on the views of CNN legal analyst and Brookings Institution fellow Susan Hennessey who maintained, “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.”
The Post indicated that it had reviewed my prior writings. Those columns list a variety of rules violated by Comey. They were not difficult to find. The FBI website warns employees that “dissemination of FBI information is made strictly in accordance with provisions of the Privacy Act; Title 5, United States Code, Section 552a; FBI policy and procedures regarding discretionary release of information in accordance with the Privacy Act; and other applicable federal orders and directives.”
One such regulation is § 2635.703, on the use of nonpublic information, which states, “An employee shall not engage in a financial transaction using nonpublic information, nor allow the improper use of nonpublic information to further his own private interest or that of another, whether through advice or recommendation, or by knowing unauthorized disclosure.” While this provision covers current employees and would not likely to be applied to Comey on these facts, FBI forms and rules barring such use of FBI information extend to former employees. What is clear is that the FBI has overlapping prohibitions on the type of disclosure made by Comey.
The standard FBI employment agreement bars the unauthorized disclosure of information “contained in the files, electronic or paper, of the FBI” that impact the bureau and specifically pledges that “I will not 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.”
Nevertheless, the Post concluded that Sanders lied by simply saying Comey’s actions “were improper and likely could have been illegal.”
Now the IG has released its report (citing the very same sources that I discussed previously) and concluded that Comey violated federal laws and regulations. It states conclusively that the memos were “federal records” subject to express protections from removal and disclosure.
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.
IG Michael Horowitz described Comey’s conduct as so outrageous that it created a “dangerous example for the over 35,000 current FBI employees — and the many thousands more former FBI employees — who similarly have access to or knowledge of non-public information.” The report describes Justice officials as “stunned” and “shocked” by his conduct.
It is now established that Comey’s actions were clearly “improper” and that the statement that they “could have been illegal” is accurate. While the Justice Department (as I previously predicted) declined to prosecute, the report clearly establishes that he committed the very violations previously discussed — and ignored — by the Washington Post.
At the time of the Post article, I noted that, even if the Post was going to take the view of analysts like Hennessey, if should at least recognize the grounds for reasonable disagreement. Indeed, the Post itself admitted 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.
Now a correction is in order on those two Pinocchio noses. Call it journalistic rhinoplasty.