Wednesday, May 2, 2018

Comey v. Comey: How New Disclosures Could Put Just One Week Between Comey and Perjury

By Jonathan Turley - May 02, 2018 at 02:30PM

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Former FBI Director James Comey continues to market his book – and himself – as a lesson in “ethical leadership.”  However, the historical record is proving increasingly at odds with Comey’s account and image. After months of spins and swerves by defenders, a consensus is emerging that Comey is indeed a leaker. The most damaging evidence, however, comes not from Comey’s critics but Comey himself.  Indeed, Comey v. Comey could be the most telling conflict in this still unfolding scandal. However, at issue, is not simply whether Comey will be viewed as a leaker or a liar, but a perjurer.

Comey’s crumbling defense was most evident in his interview last week with Anderson Cooper when Cooper challenged his self-serving definition of a leak as only involving classified information. That is manifestly wrong, as Cooper correctly pointed out, since leaks often involve unclassified but still non-public information.

Agency rules (including most notably the FBI’s rules) ban the release of non-public agency information whether or not it has been classified. Indeed, many leak investigations (including some under Comey) do not involve classified information, such as leaks about White House meetings or non-public statements. The FBI, including Director Andrew Wray, confirmed that the Comey memos were not his documents (as he continues to implausibly maintain) but rather FBI material subject to rules of nondisclosure. Nevertheless, Comey gave at least four memos to Columbia University law professor Daniel Richman to leak information to the media.

However, in the ongoing Inspector General’s investigation into his conduct, Comey’s defense could ultimately collide with Comey’s own (prior) interpretation.  In the last two weeks, the divide between Comey and his former deputy (and acting FBI Director) Andrew McCabe widens.  McCabe has claimed that Comey knew about his giving non-public information to the Wall Street Journal. McCabe’s counsel directly challenged Comey and said that the public should not buy Comey’s “white knight” account of his own conduct. Comey responded by publicly stating that McCabe was found to be a liar by the IG and that he was the one who called for an investigation into the “leak.” That’s the problem.

McCabe is not accused (unlike Comey) of revealing classified information to the Wall Street Journal. Rather it was an unclassified exchange concerning the Clinton investigation. It was reported as between McCabe and a high-ranking DOJ official where McCabe asked, “Are you telling me that I need to shut down a validly predicated investigation?” Comey was determined to find the leaker and notes from a meeting quote Comey as demanding action “to get our folks to understand why leaks hurt our organization.”

In other words, before he himself became a leaker, Comey did not qualify leaks as confined to classified information. He promised Trump to root out such leaks while assuring Congress that he would never countenance such misconduct.

During testimony before the Senate Judiciary Committee, Comey was asked by Committee Chair Sen. Chuck Grassley if he’d “ever been an anonymous source in news reports in matters relating to the Trump investigation or the Clinton investigation.” Comey responded “Never.”

He was then asked if he had ever authorized anyone else at the FBI to be an anonymous source on these topics. Again, Comey was clear and unequivocal: “no.” He was then asked if any classified information “relating to President Trump or his associates” had been declassified and shared with journalists. Comey responded “Not to my knowledge.”

That was May 3. He was fired less than a week later. Since Comey is now accused of doing all three things, Grassley must be wondering if his questions proved more suggestive than probative for Comey.

Some of Comey’s staunchest defenders appear now to recognize the implausibility of his denial of being a leaker and have moved on to a more technical defense: that Comey was allowed to leak even classified information because he has “original classification authority.” In other words, he can leak classified information legally by simply declaring it to be unclassified. This defense is flawed for two reasons.

First, Comey presumably told Richman to leak the information after he was fired as FBI Director. At that point, whatever authority he had was gone. Comey told Congress that he did not release the memos through Richman until after he was fired: “I was worried. The media was camping at the end of my driveway at that point, and I was actually going out of town with my wife to hide, and I worried that it would be like feeding seagulls at the beach.”  While widely accepted as common sense by the media, it actually makes little sense. Comey portrays the only choice as secretly giving the memos to a friend (who leaked the material anonymously) or throwing himself into a media mosh pit. Apparently, email and the Internet were not available that week. Nevertheless, Comey used a surrogate to leak to the “seagulls” without attribution to either himself or Comey.

Comey has not confirmed when he sent the memos to Richman. The fact is that Comey had no authority to make that judgment on the actual release of the non-public information after he was fired. It is like an FBI agent keeping case material after retirement. You still have the obligation to clear the release of non-public information, particularly since the status of material can change. There is no indication that Comey subjected the documents for formal review before he decided to release them as a private citizen.

Second, it would still be a serious abuse of authority. There was no public interest purpose in this disclosure. Comey’s memos were written from January to April 2017. The final memo was dated three weeks before his May 2017 testimony. The Comey memos were already in the hands of FBI officials, including Andrew McCabe, and were part of the investigation. The leak was designed to help James Comey personally. Indeed, it undermined the value of the memos for investigators by alerting the White House of their existence. It was disclosed recently that Comey conveniently made Richman a “special government employee” without pay. He then used Richman to leak the memos. This raises serious questions for Richman who may still have been a special employee of the Justice Department when a former employee told him to leak information to the media.

Ironically, the media has been hammering away at Trump for a year in arguing that, even if he had authority to fire Comey or pardon associates, it could still be a crime if done for improper or personal purposes. I agree with that position. Yet, the assumption from these same commentators is that Comey could use his authority to serve his own interests with absolute impunity.

Comey’s memos were written from January to April 2017. By May 3, Comey admits that he had already written the memos as a type of insurance against a move by Trump against him. However, he leaked the memos a week after he swore that he never leaked or authorized anyone to leak or declassified material to leak. It was like waiting for Monday to have an affair so you could go to confession on Sunday with a clear conscience. At best, just a week now likely stands between Comey being a leaker or a perjurer. That is hardly a comfortable margin for someone teaching “ethical leadership” by example.

Reprinted with permission from JonathanTurley.org.

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