More on Comey: did he commit an indictable offense? and other observations
Somewhat lost in the Comey shuffle for some analysts: Comey’s admission that he was the memo leaker.
Jonathan Turley wonders about the possible legal consequences:
One of the most interesting new disclosures today in the Comey hearing was the admission by former FBI Director James Comey that he intentionally used a “friend” on the Columbia law faculty to leak his memos to the media. Comey says that he did so to force the appointment of a Special Counsel. However, those memos could be viewed as a government record and potential evidence in a criminal investigation…
The admission of leaking the memos is problematic given the overall controversy involving leakers undermining the Administration. Indeed, it creates a curious scene of a former director leaking material against the President after the President repeatedly asked him to crack down on leakers.
Which by the way sheds some light on Trump’s questioning Comey’s “loyalty.” Maybe we could paraphrase that as Trump’s asking, “Are you planning to betray me?” And if Comey was going to be honest (or “honestly loyal”), he probably should have answered “Only if you fire me.”
Besides being subject to Nondisclosure Agreements, Comey falls under federal laws governing the disclosure of classified and nonclassified information. Assuming that the memos were not classified (though it seems odd that it would not be classified even on the confidential level), there is 18 U.S.C. § 641 which makes it a crime to steal, sell, or convey “any record, voucher, money, or thing of value of the United States or of any department or agency thereof.”
There are also ethical and departmental rules against the use of material to damage a former represented person or individual or firm related to prior representation…
Comey’s statement of a good motivation does not negate the concerns over his chosen means of a leak. Moreover, the timing of the leak most clearly benefited Comey not the cause of a Special Counsel. It was clear at that time that a Special Counsel was likely. More importantly, Comey clearly understood that these memos would be sought. That leads inevitably to the question of both motivation as well as means.
In his testimony yesterday, Comey continually guessed at Trump’s motives. I suppose turnabout is fair play and we are free to guess at Comey’s. In view of that, Marco Rubio had an excellent question for Comey:
“Do you ever wonder why, of all the things in this investigation, the only thing that’s never been leaked is the fact that the president was not personally under investigation, despite the fact that both Democrats and Republicans and the leadership of Congress knew that and have known that for weeks?” Rubio asked Comey.
Comey responded “I don’t know,” adding that “matters briefed to the gang of eight are pretty tightly held,” referring to the eight lawmakers who have access to the most highly classified information.
But since Comey himself was the leaker, the implication is that he could have leaked it, and that he held back because that’s the item that would have helped Trump rather than hurt him. Therefore his answer here seems to me to be quite obviously disingenuous; he’s omitting himself from the picture.
Another point that emerged from the Comey testimony, particularly regarding Loretta Lynch (see this), is that Lynch as AG asked Comey to cover up the news that the FBI was investigating Hillary Clinton, and he complied with her request; whereas Trump asked Comey to reveal that he, Trump, was not under FBI investigation, and Comey refused to comply while simultaneously revealing other things that would reflect poorly on Trump.
This tweet makes a related observation: “Unlike Clinton, where Comey laid out why she was guilty and then let her off, he lays out Trump’s innocence, and concludes he is guilty.” Good point.
And Frank Lutz points out that there were two major “anonymously sourced BOMBSHELL[s]…that [were] debunked by Comey’s on-record testimony. Reporters must do better.”
My response is that it depends what you think the reporters’ goals were in printing those anonymously-sourced anti-Trump stories in the first place. If you think the reporters were trying to get at the truth, then of course they must do better. But I think they had a different goal. I think they were trying to print damaging stories about Trump, while covering their butts by speaking to people off the record who held positions close enough to Trump and the story that, if ever challenged, the reporters could claim that they had every reason to believe their sources were reliable. The goal is to harm Trump, and it was done with the knowledge that a lie gets halfway around the world before the truth has a chance to get its pants on.
[NOTE: See this for a discussion of the provenance of that quote at the end of my post.]