The Idea That James Comey’s Leaks Were Non-Criminal Is Falling Apart

The Idea That James Comey’s Leaks Were Non-Criminal Is Falling Apart

Now that the memos have been perused, the theories of a number of legal commentators have unsurprisingly proved to be full of errors, irrelevancies, and overstatements.
Robin Ridless
By

When former FBI director James Comey disclosed at a congressional hearing last June that he had disseminated memos to a friend, his defenders scrambled to make excuses for him. The mainstream media launched either fake news or a series of legal justifications to whitewash his violations of a litany of federal rules and laws protecting his private conversations with the president.

Now that the memos have been perused, the theories of a number of such legal commentators, which were based on sketchy information to begin with, have unsurprisingly proved to be full of errors, irrelevancies, and overstatements. Rather than walk back their defense of Comey’s leaks, however, they have doubled down on heroizing him.

No, Comey’s Memos Are Not His Personal Property

Last May, the Washington Post called White House Press Secretary Sarah Sanders a liar for saying Comey leaked privileged information. At the time, legal professor Jonathan Turley wrote eloquently in her defense. Today, he confirms his position, arguing that the media continue to allow their bias to overwhelm their objectivity in reporting on Comey’s culpability.

The release of the actual memos (albeit redacted) resolves a number of points of contention. The first is whether they were government records. If they were produced in the course of government employment, they constituted confidential information subject to both internal Justice Department rules restricting their removal and disclosure as well as federal statute. More on the latter presently, but in the meantime, it is important to note these restrictions would apply whether the material released was classified or not.

When Comey said under oath that he regarded the memos as his personal property, the commentariat immediately latched onto this workaround, calling the memos “diary entries,” not government records. Susan Hennessey, the executive director of Lawfare and general counsel of the Lawfare Institute, wrote last May, “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.” (Turley cited this quote, but the link has since been removed.)

As Turley points out, however, the publication of the memos last week confirms the memos cannot be anything but a “record” under federal rules.

These were not memos ‘to the file’ or to Comey himself. He wrote them to the FBI as part of the investigation, specifically addressing the disclosures to McCabe, FBI general counsel James Baker and chief of staff James Rybicki. FBI Director Christopher Wray has confirmed these were FBI documents. While Comey continues to maintain these were personal papers, it is demonstrably untrue on the face of the memos themselves.

Looking back, we have to wonder why a legal expert like Hennessey would opine on the property status of the memos with such certainty when she’d never seen them. If the memos were just Comey’s personal reflections, why would they have had any significance to the obstruction scenario?

Specifically, why would they afford a basis for Hennessey to say the president had a “disturbing, and possibly criminal, conversation with the FBI Director” if they were rank hearsay, with no more evidentiary weight than Trump’s memory of the events?

Yes, Comey Outright Lied to the President and His Team

Another issue the memos’ release has cleared up is Comey’s dissembling. Hennessey argued that while Trump had an expectation of confidentiality, there was no reciprocal obligation on Comey’s part to honor it. Many presidential memoirists, she pointed out, invoke recollections of presidential conversations later in print.

We now know this defense is laughable. Comey didn’t violate some hazy, unfounded expectation but expressly misled Chief of Staff Reince Priebus, and thereby Trump, when on February 8 he assured the former in response to a direct question that, yes, theirs was a “private conversation.” Remember, Comey knew he would be recording what transpired and sharing it with FBI “associates,” which, by the way, exacerbated the possibility of leaks the president was patently worried about. As Eric Felten put it, “Exactly how is a conversation ‘private’ if it is being written down and disseminated?”

But the dishonesty at work may have been even more deeply embedded. Felten also examines several internal inconsistencies in Comey’s classification notations, which were never reviewed by an independent official and of course Hennessey hadn’t seen at the time of her excessive vindications of Comey’s disclosures.

Feltin notes, for example, that after labeling a series of his memos SECRET or CONFIDENTIAL, Comey inexplicably switched to UNCLASSIFIED//NOFORN for the very meeting at which Trump allegedly expressed his hope that Comey could see his way to letting the Flynn matter go. Comey and the commentariat made much of this alleged “criminal” request when Comey publicized it. But in his June testimony before the Senate Intelligence Committee, Comey admitted he wrote the document to be “accessible” in order to share it with the American public.

In other words, although Comey today maintains he released the memos as a private citizen, he admitted to strategizing how to leak the presidential conversations long before his firing, and indeed, was plotting to do it at the very same time he was assuring the president he was trying to stop the leaking.

This is not the first time, either, that the notion has cropped up that Comey anticipatorily structured his actions, as well as his writings, to frame Trump, at least with his enemies, while sanitizing his own role in the frame-up. Let’s go back to Hennessey’s above-cited piece from June 9, 2017.

There she claims Comey didn’t have to use an intermediary to make public the contents of the Flynn memo. He could have done it by hinting to close associates their indiscretion with the press would be welcome. That he didn’t do this (he is, after all, no “weasel,”) but took responsibility because he “believed the information needed to get to the public expeditiously” made him, in her view, a model whistleblower.

This construction of what Comey might have done ignores Comey’s cherished role as drama queen in the entire affair, to say nothing of the fact that, as Turley underscores, if he was so concerned, he could simply have passed copies of the memos to Congress. Additionally, had he lost control over the information’s dissemination by leaking it anonymously rather than through his friend, the memos wouldn’t have been eligible for Exemption 7(A) under the Freedom of Information Act statute. They would’ve been considered already in the public realm, and Comey and the Left would not have been able to use the aura of documents no one in the media had ever seen while immunizing themselves against rebuttal.

The Jury Is Still Out on 18 U.S.C. § 641

One reason Comey and his allies are putting so much emphasis on the memos being Comey’s personal property is the above-cited conversion statute. This law imposes criminal penalties on anyone who “steals, purloins or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States of any department or agency thereof. . . .”

Later language sweeps in any “property made .. . under contract for the United States or any department thereof.” You see the point. As Turley identified last June, if the memos were government documents, which we now know they indisputably are, they would fall within the purview of this criminal law.

If the memos were government documents, which we now know they indisputably are, they would fall within the purview of this criminal law.

This application was at once shot down by Steve Vladeck in the Washington Post. He first acknowledged there is an “open question” in the Fourth Circuit as to whether “pure information” rather than tangible property might be considered “property” for these purposes. The case he cites, however, U.S. v. Morison, was decided in 1988. The understanding of intangible property such as information and how it becomes monetized has advanced immeasurably in the courts since then, to keep pace with the rise of intellectual property as well as its ubiquity as a source of economic value.

Then Vladeck baselessly asserted “the crux of the issue here is the content of the memo, not the physical memo itself” (emphasis in the original). Clearly, however, from the first disclosure in the New York Times, it was the mystique of the memos themselves, the physical objects, that garnered attention and elevated Comey’s hearsay claims. Until last week, it was the phantom memos, not the information Comey spun off them, that gave false heft to the Left’s obstruction narrative.

As I’ve written before, moreover, this difference between secondhand information and the memos themselves, the memos that were government documents that Comey removed and disclosed without permission, was expressly affirmed this year by a DC district court judge. Now that the memos have been made public, the Left’s dismissal of the statutory basis for conversion has become untenable. Not coincidentally, the monetary value of the memos, which Vladeck also denied, has become perfectly obvious with the publication of Comey’s tell-all and the publicity surrounding it and the role of the memos as props in Comey’s histrionic disclosures.

It is for this reason that leftist legal academics are punching up the panegyrics for Comey The Whistleblower, implying Comey had an unselfish excuse for flouting rules and norms. But as the Morison court stated, “To use the first amendment for such a purpose would be to convert the first amendment into a warrant for thievery.”

Robin Ridless is a lawyer in New York City.

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