President Donald Trump twice branded James Comey as a “leaker” Friday, taking shots at the ousted FBI director over Comey’s admission that he had an intermediary give the press memos about his conversations with the president.
“No obstruction. No collusion. He’s a leaker,” Trump said Friday at a Rose Garden news conference.
Earlier in the day, Trump broke a prolonged Twitter silence to brand Comey a leaker — and to declare his testimony had vindicated him.
Trump’s lawyers threatened, though as of Friday evening, had not yet filed, official complaints against the ousted FBI director. Comey’s disclosures may have violated bureau policies, and could lead to him being rebuked by the FBI or Justice Department. But agencies have little other recourse against former employees in these circumstances, legal experts said.
A finding that Comey breached FBI rules could do some damage to his reputation. However, there’s no history of cases like this being prosecuted criminally, lawyers said.
“For Comey, the greatest danger is not one of criminality, but of credibility,” said George Washington University law professor Jonathan Turley. “What Comey did was grossly unprofessional. He actually, in my, view, hampered the investigation.”
FBI policy does appear to prohibit former employees from disclosing work-related records without advance clearance from the law enforcement agency.
“All information created and acquired by current and former employees … in connection with official FBI duties, as well as all official material to which FBI personnel have access, is the property of the United States,” FBI policy says. “FBI personnel must surrender all materials in their possession that contain FBI information upon FBI demand or upon separation from the FBI.”
The FBI’s standard employment agreement reads: “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.”
During his riveting appearance on Capitol Hill Thursday, Comey said he asked a law professor friend convey the memos to a New York Times reporter in a bid to spur appointment of a special prosecutor to investigate alleged Russian meddling in the 2016 election. The ex-FBI chief suggested it was permissible to disclose the memos because they amounted to nothing more than what was in his own head.
“My view was that the content of those unclassified, memorialization of those conversations was my recollection recorded,” the ex-FBI chief said.
However, that approach seems inconsistent with the tight reins the FBI tends to keep over its records.
“I would be astonished if the FBI supported Comey in terms of his handling of this information … If they accepted this, you would have a virtual collapse of a wide array of regulations governing dissemination of information.”
Several federal criminal laws could potentially apply, including some that prohibit disclosure of various types of classified information. However, Comey insists the memos he shared are unclassified.
One statute involving theft of government property has sometimes been used to charge government employees who disclose the names of informants, confidential contract bids, or even information about changes to Medicare reimbursement policies. The law has been invoked even when the information wasn’t really stolen or removed, but merely copied or relayed.
However, a Justice Department policy appears to bar use of the law when “the defendant obtained or used the property primarily for the purpose of disseminating it to the public.”
“Under this policy, a government employee who, for the primary purpose of public exposure of the material, reveals a government document to which he or she gained access lawfully or by non-trespassory means would not be subject to criminal prosecution for the theft,” the U.S. Attorneys’ Manual says, while acknowledging that other laws could apply, including those for classified information.
In the Comey case, “the content of the conversations is not the property of the government. It’s only even an issue because he wrote it down,” argued University of Texas law professor Stephen Vladeck. “This is not a memo that is independently valuable. It does not reflect some conclusion that Comey wasn’t already aware of….If the conversation was about a top secret intelligence program then sure, memorializing that and disclosing it would trigger the Espionage Act, but that’s not what this is.”
Comey is already under scrutiny as part of an ongoing Justice Department Inspector General investigation into whether the FBI chief violated Justice Department policies through his public statements and disclosures to Congress related to the Hillary Clinton email probe.
A source close to Trump’s legal team indicated Friday that Trump lawyer Marc Kasowitz plans to file a complaint about Comey’s disclosures with the inspector general and with the Senate Judiciary Committee this week. However, as of Friday afternoon a spokesman for the Senate Judiciary Committee said no complaint had arrived from Trump’s legal team.
While Comey denied releasing any classified information, Kasowitz suggested Thursday that he had admitted to it. In any event, it appears the Trump team plans to try to link Comey’s admitted leak to a slew of other recent leaks that did involve national security secrets. Many of those disclosures were also politically damaging to Trump.
Kasowitz also leveled another allegation at Comey, faulting him for “unauthorized disclosure of privileged communications.”
The Trump lawyer didn’t specify what legal privilege was involved, but it appeared to be a reference to executive privilege. That claim seems to be a non-starter with lawyers, who note that executive privilege hasn’t been historically used to require officials or ex-officials to keep silent, but to allow them to avoid sharing information when they don’t want to.
“Executive privilege is a shield, not a sword,” Vladeck said. “It’s a protection against compelled disclosure, not against voluntary disclosure.
Allowing Trump to use executive privilege to block testimony or public statements by former officials would amount to a dramatic shift from historical precedent, which has left such people free to write memoirs that disclose presidential conversations—provided they don’t veer into classified topics.
There are also questions about whether Trump’s public statements waived whatever privilege Kasowitz was alluding to. It’s also unclear how Trump can maintain that Comey is lying about the episode but also breaching some confidence.
“Imaginary information would not be privileged,” said Steven Aftergood, a Federation of American Scientists expert on controls on government information.
The most damaging aspect of Comey’s admission may be that it seems to be in tension with his straight-shooter reputation as well as his history of publicly railing against leaks, although he was typically referring to those of the classified variety.
“It is unusual and it’s really odd coming from a former FBI director,” said Aftergood.
Still, Comey’s frankness about the leak when asked Thursday about the issue, may redound to his benefit, at least in the eyes of some.
“In the short term, he made himself a target, but it may play well in the longer term,” Aftergood said. “He took responsibility for his own actions. He said he did this. If there’s some penalty for it, people know where to find him…..I find it to be an admirable act of self-incrimination. Some people like it when you say, ‘I did this and I’m willing to accept whatever the consequences are.’”
Darren Samuelsohn contributed to this report.
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