One of the negative features of our daily double/triple/quadruple media outrage cycle is that many people lose the context and history in which these events occur.
There was a lot of heavy breathing from the media this week after it was leaked that a grand jury had been impaneled by special counsel Robert Mueller — just one of many illegal hostile leaks that have emerged from inside the administration targeting President Trump.
The person tasked with investigating those leaks — until he was fired — was FBI Director James Comey.
But it bears reminding that the only reason why a special counsel was appointed was that Comey himself illegally leaked memos of his conversations with the president to the media for the purpose of having a special counsel appointed days after he was fired.
Comey leaked his own memos to contradict Trump, spur special prosecutor https://t.co/cZmQgYYIVI
— The Washington Times (@WashTimes) June 8, 2017
Don’t take my word for it. Here is Comey testifying on June 8 in response to questioning by Sen. Susan Collins that he leaked the memo of his conversations with the president specifically to provoke the appointment of a special counsel (beginning ~1:48):
Collins: Did you show copies of your memos to anyone outside of the Department of Justice?
Comey: Yes.
Collins: And to whom did you show copies?
Comey: The president tweeted on Friday after I got fired that I better hope there’s not tapes. I woke up in the middle of the night on Monday night because it didn’t dawn on me originally, that there might be corroboration for our conversation. There might be a tape. And my judgment was I needed to get that out into the public square. And so I asked a friend of mine to share the content of the memo with a reporter. I didn’t do it myself for a variety of reasons but I asked him to because I thought that might prompt the appointment of a special counsel. So I asked a close friend of mine to do it.
Collins: And was that Mr. [Benjamin] Wittes?
Comey: No. No.
Collins: Who was that?
Comey: A good friend of mine who’s a professor at Columbia law school.
Comey’s friend, Columbia law professor Daniel Richman, later admitted that he was the conduit for Comey’s leak.
Columbia Law Prof Daniel Richman confirms to @ZCohenCNN that he is the friend that provided excerpts of the Comey memo to reporters.
— Ryan Nobles (@ryanobles) June 8, 2017
Comey’s defenders claim that there was nothing improper or illegal because the memos were his private property and he was free to leak them. That explanation doesn’t quite fly.
Deputy AG Rod Rosenstein: Comey violated FBI policy by leaking memos to press https://t.co/8de2Dm0X9n pic.twitter.com/zsGgYysCDx
— Washington Examiner (@dcexaminer) July 19, 2017
Here’s what former federal prosecutor and PJ Media contributor Andrew McCarthy had to say about the claim that the memos weren’t the property of the FBI and U.S. government:
The memos were written by an FBI official, apparently on FBI equipment, and related directly to FBI investigative business. Indeed, the fact that investigative business was central to Trump’s conversations with the former director is what induced Comey to write the memos: He perceived the president’s statements as political intrusion into law-enforcement investigations and intelligence probes. The memos were thus government property, and the then-director was obliged to make sure they were retained in government files.
That does not mean it would have been improper for Comey to keep a copy of them for himself. But doing that would not change the character of the memos as government property, and it would not relieve Comey of the obligation to comply with all government disclosure restrictions on the contents of the memos. At the Federalist, Bre Payton reproduces a copy of the standard FBI employment agreement, making a persuasive argument that Comey’s memos are government property and that the former director’s disclosure of information in them to unauthorized persons violated the employment agreement’s terms.
Nor would the memos’ status as government documents turn on whether or not the documents were physically placed in the government’s files. Nor would their storage outside the government’s filing system relieve the government of any disclosure obligations in a criminal case; a court would simply rule that the government constructively possessed the documents through Comey, who was its agent when he made and retained them. The government would be responsible for securing them and complying with its disclosure obligations.
Sen. Collins: Comey’s Memos Are ‘Not His Private Papers’ – Sen. Susan Collins (R-Maine), a member of the intell… https://t.co/wzYdBLtc1L
— CNSNews.com (@cnsnews) June 9, 2017
It was later revealed that four of the seven memos contained classified information.
More than half of Comey's private Trump memos contain classified information https://t.co/ckEeRZT44b pic.twitter.com/lChdzOPQDs
— The Hill (@thehill) July 10, 2017
Comey’s defenders claim that the memo he leaked to the New York Times didn’t contain any classified information, so there was nothing improper or illegal about intentionally leaking it to the press.
But as George Washington University professor Jonathan Turley explains, whether the information is classified or not doesn’t determine if it’s illegal to leak:
Many in the media have tried to spin this as not a “leak” because leaks by definition only involve classified information. That is entirely untrue as shown by history. Leaks involve the release of unauthorized information – not only classified information. Many of the most important leaks historically have involved pictures and facts not classified but embarrassing to a government. More importantly, federal regulations refer to unauthorized disclosures not just classified information.
Comey’s position would effectively gut a host of federal rules and regulations. He is suggesting that any federal employee effectively owns documents created during federal employment in relation to an ongoing investigation so long as they address the information to themselves. FBI agents routinely write such memos in investigations. They are called 302s to memorialize field interviews or fact acquisitions. They are treated as FBI information.
The Justice Department routinely claims such memos as privileged and covered by the deliberative process privilege and other privileges. Indeed, if this information were sought under the Freedom of Information Act (FOIA) it would likely have been denied. Among other things, the Justice Department and FBI routinely claim privilege “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”
Of course, Comey did not know if there was a privilege or classification claim by either the Justice Department or the White House because he never asked for review. He just woke up in the middle of night upset about Trump’s name calling and released the damaging information. In doing so, he used these memos not as a shield but a sword.
As Turley notes, whether the information was classified or not, anyone leaving government service — including Comey — would have been required to submit the memos to the Justice Department for a classification review before releasing them to the media. Comey didn’t.
In fact, government watchdog Judicial Watch is having to sue the Justice Department to obtain the memos under FOIA because they won’t release them.
JW believes it's a scandal that we have to sue in court for a memo Comey gave to a friend who leaked it to @nytimes.https://t.co/1X9r6s6oZi pic.twitter.com/OG4Lb7jRVo
— Judicial Watch 🔎 (@JudicialWatch) July 22, 2017
Comey and his defenders contend that the creation of the memo of his conversation with Trump was to document Trump’s supposed interference in the FBI investigation.
If that’s true (and at this point, we only have Comey’s claim), then why didn’t Comey immediately inform the attorney general of the interference, as he was obligated to do?
If his leak was so heroic, why did he use a cut-out to leak the memo to the New York Times? If he wanted to get the information into the public square and the information was his to leak (it’s not), why didn’t he do so publicly?
And was this the only leak that Comey made to the media?
As FBI director, Comey was in charge of investigating the illegal leaks against the administration. And yet by his own admission, he was one of the leakers.
Who is investigating James Comey? His good friend Robert Mueller?
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