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Comey’s Choice: Congress or the Press

Former FBI Director Jim Comey’s decision to “leak” (a word which itself has generated controversy in this connection) the contents of his memos of conversations with President Donald Trump to the New York Times has led to much pontificating, but indulge me while I engage in a little more. My interest focuses on the question of why Comey chose to make his revelations first to the media, rather than to Congress.

Much of the commentary seems designed to attack Comey’s credibility by demonstrating that the disclosure to the Times was illegal or improper or, conversely, to bolster his credibility and undermine his critics by arguing the opposite. But the legal and ethical questions surrounding the “leak” (last time in quotes, I promise) are sufficiently murky that their relevance to the believability of Comey’s underlying testimony (particularly if that testimony is supported by contemporaneous memoranda) seems somewhat tangential. Frankly, under the circumstances I can understand how Comey would have been sorely tempted to bend the rules regarding disclosure if that were the only way to get his side of the story out.

Put yourself in Comey’s shoes. It is May 9, 2017, and you have just received a letter from President Trump, along with two enclosures, a letter from Attorney General Jeff Sessions and a memorandum from Deputy Attorney General Rod Rosenstein. The Rosenstein memo explains that you made “serious mistakes” in your handling of Secretary Hillary Clinton’s emails, as a result of which “the FBI’s reputation and credibility have suffered substantial damage” and “the entire Department of Justice” has been affected. The memo, while not quite explicitly recommending you be fired, concludes by saying “the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them.”

The one paragraph letter from Attorney General Sessions to President Trump recommends that Trump remove you as FBI director. Sessions explains that “[b]ased on my evaluation, and for the reasons expressed by the Deputy Attorney General in the attached memorandum, I have concluded that a fresh start is needed at the leadership of the FBI.”

Last but not least, Trump’s own letter informs you that he is accepting the “recommendation” of the attorney general and deputy attorney general, and “you are hereby terminated and removed from office, effective immediately.” The president goes on to elaborate (graciously, he no doubt thinks): “While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau.”

For purposes of discussion, we will assume you are well aware that many, many people have criticized your handling of the Clinton email investigation, and not a few of those have urged you be removed as FBI director. But you believe that this is not at all why Trump decided to fire you. And you have the evidence to prove it, in the form of contemporaneous memoranda recording a series of meetings and telephone discussions with the president over the past 5 months. These documents show (at least in your view) that Trump fired you because of your handling of the Russia investigation, including the failure to show adequate personal loyalty to Trump in the conduct of that investigation, the failure to “let go” of an inquiry into certain activities of former National Security Advisor Michael Flynn, and your unwillingness or inability to “lift the cloud” which the Russian investigation had cast over the Trump administration.

I think you can understand that anyone in this situation would feel impelled to come forward and bring these memos to the attention of the public and the proper authorities. What I find more difficult to explain is why Comey thought it necessary to have a friend anonymously leak the story to the New York Times, when he could have simply informed the relevant congressional committees, including the Senate Select Committee on Intelligence, that he was in possession of the memos and prepared to testify about their contents.

There are situations where press coverage is needed to attract public and congressional attention to a particular issue, but this was certainly not one of those. Even Michael Schmidt, the New York Times reporter who first wrote about the Comey memos, acknowledged as much on the day Comey was to testify before SSCI:

Q. Has Comey been called to testify in front of the Senate today because of your reporting?

Schmidt. It was certainly a catalyst, but Comey was going to have to go up there at some point and they were going to want to hear from him.

N.Y. Times Podcast, The Daily, 6-8-17 at 9:08.

With this background, let’s look at the legal and ethical issues raised by Comey’s leak to the Times.

Legal and Ethical Issues

 Criminal Violations. Professor Jonathan Turley and others have suggested that the leak may have violated a criminal statute, 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.” The theory seems to be that the Comey memos were records of the United States and that Comey violated the law by “conveying” them to the New York Times. I suppose it is possible that someone could also argue that Comey “stole” the memos by keeping them (or copies of them) after he left the FBI, although I am not sure that anyone has actually made that argument.

While I am no expert on this statute, I am skeptical that the mere fact a former government official has copies of government documents and/or shares these documents or their contents would be sufficient to establish a criminal violation under this statute. Professor Steve Vladeck suggests in this tweet that DOJ’s interpretation of section 641 may be broad enough to cover such conduct, but he points out that the DOJ manual states “it is inappropriate to bring a prosecution under 18 U.S.C. § 641 when (1) the subject of the theft is intangible property, i.e., government information owned by, or under the care, custody, or control of the United States; (2) the defendant obtained or used the property primarily for the purpose of disseminating it to the public; and (3) the property was not obtained as a result of wiretapping . . ., interception of correspondence . . ., criminal entry, or criminal or civil trespass.”

Whether or not it is possible to make a technical argument in favor of section 641’s applicability, it does not appear to be directed at the kind of conduct at issue here. As Vladeck notes, the intent of the statute seems to be to prohibit the theft or conversion of items of monetary value, not simply information of public interest. Moreover, because the statute itself does not set a disclosure standard, as this article from the Inspector Generals’ Journal of Public Inquiry explains, section 641 has been interpreted so that “[i]n addition to proving the disclosure of information, the government must also prove that the disclosure of information was affirmatively prohibited by other federal statutes, administrative rules and regulations, or longstanding government practice.”

Another potential criminal law issue would arise if the Comey memos contained classified or “national defense” information within the meaning of the Espionage Act. Comey has testified that he wrote the memos with the intent that they be unclassified, and there is no reason to doubt that he did his best to avoid including incorporating in them anything that might be deemed classified or national defense information. However, the Russia investigation that was the subject of Comey’s discussions with the president undoubtedly involves a good deal of classified and national security sensitive information. As Andrew McCarthy points out, the mere fact that Comey did not mark the memos as classified is not determinative of their status, and it is possible that the memos contain or arguably contain classified information, even if Comey thought they did not. Without seeing the memos themselves, it is difficult to assess whether the disclosure of their contents would pose any substantial risks under the Espionage Act or related laws.

Civil violations. Although the leak to the New York Times probably did not violate any criminal law, and almost certainly was not the type of act that would be ordinarily be prosecuted, this does not necessarily mean it was either legal or proper. As Comey’s own July 5, 2016 press conference announcing the end of the Clinton email investigation illustrates, not committing a prosecutable crime is a low bar for a public servant. Comey explained then that “[a]lthough there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.” He went on to caution, though, that this was not an exoneration of Clinton’s conduct: “To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions.”

One could make a similar point about Comey’s conduct. It seems very likely that an FBI official who disclosed to the press the contents of confidential conversations with the president regarding a sensitive national security investigation would face sanctions, even if none of the information in question was classified.

As Bre Payton of The Federalist explains here, the standard FBI employment agreement contains extensive nondisclosure provisions. Of particular relevance are paragraphs 2 and 3, which provide:

2. All information acquired by me in connection with my official duties with the FBI and all official material to which I have access remain the property of the United States of America. I will surrender upon demand by the FBI, all materials containing FBI information in my possession.

3. 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.

The agreement purports to bind the FBI employee even after the termination of employment. Thus, the agreement concludes with the statement that “I agree to comply with these provisions both during my employment in the FBI and following termination of such employment.”

It also identifies the categories of information that are most sensitive from the FBI’s perspective. These include “[i]nformation that relates to any sensitive operational details or the substantive merits of any ongoing or open investigation or case” and other information “the FBI would have discretion to withhold from public disclosure” in civil litigation or pursuant to statutes such as the Freedom of Information and Privacy Acts. The categories would seem to cover the Comey memos. Moreover, the FBI’s policy with respect to disclosure is clear: if an employee has any doubt as to whether disclosure is appropriate, she should seek written permission first.

None of this is to suggest that the applicability and enforceability of the nondisclosure provisions are beyond dispute. I have some concerns about the breadth of these provisions, which read literally would require an FBI employee to get written permission before she could tell her spouse she received a promotion. As we have discussed in another context, there are First Amendment issues when the government uses broad nondisclosure rules or agreements to muzzle former employees. In addition, I don’t know if Comey signed an FBI employment agreement or if the provisions of this agreement are intended to apply to the FBI director.

Nevertheless, it seems that there are at least questions about the legality of Comey’s disclosure to the New York Times. And assuming that the nondisclosure provisions were technically inapplicable or unenforceable here, they still cast doubt on the propriety of that disclosure. If the FBI would have enforced these provisions against a rank and file agent who made exactly the same disclosure (and it seems highly likely that it would), it is hard to argue that Comey’s leak was entirely proper.

Finally and importantly, the employment agreement acknowledges exceptions to the nondisclosure obligations. These include communications to Congress, reporting of illegality, waste or abuse to an Inspector General, and “any other whistleblower protection. Not mentioned are disclosures to the media.

Executive Privilege. As noted in my last post, the communications with the president memorialized by the Comey memos were at least presumptively subject to the presidential communications privilege. Eric Columbus has argued that this privilege has no applicability to Comey’s decision to voluntarily disclose the contents of his memos, whether in testimony to Congress or through communications with the press.

Columbus’s position has both a procedural and a substantive aspect. Procedurally, he correctly notes that there is no mechanism to prevent a former executive official from writing or speaking about their time in office, including sometimes revealing “none-too-flattering conversations with the big boss.” From this he infers that “as a society” we have made the substantive judgment that there is greater value in allowing or encouraging such disclosures by former officials than in permitting attorneys to reveal privileged communications with their current or former clients.

However, the reason an attorney is more likely to hesitate than a former executive official before voluntarily revealing privileged (or arguably privileged) information is because the former faces a more robust and formal set of sanctions for any alleged violation (i.e., the attorney could be sued for malpractice and/or face a disciplinary proceeding). These legal and practical differences have to do with how the legal profession is regulated; it is not clear that they reflect any comparative societal judgment on the merits or importance of the privileges.

I tend to think there is a norm against former executive officials deliberately breaching confidences of the president, particularly while the president is still in office. It is theoretically possible that such individuals could face the kind of security and administrative sanctions referred to by Comey in his July 5, 2016 press conference, but it is more likely that the sanctions would be informal in nature (e.g., public criticism and loss of trust by presidents and others in the future).

As Columbus notes, this norm has been violated on a number of occasions by, for example, the writing of “tell-all” books, but there still seems to be a sense that the norm exists (see this piece by Jim Geraghty with regard to the controversy surrounding the book written by former Secretary of Defense Bob Gates). Geraghty observes that the theory underlying the presidential communications privilege is that “both the president and his advisers need to be able to speak to each other and discuss matters of state with confidentiality.” Without some sense that these advisers are honor-bound not to voluntarily disclose these communications, the legal privilege is not worth much.

Professor Keith Whittington argues that voluntary disclosures of confidential conversations do not implicate do not implicate the purposes of the presidential communications privilege because “[n]o executive branch official can be deterred from offering frank advice to the president by the possibility that that same official will at some point want to tell the story of what happened in the meeting.” But this analysis overlooks the president’s interest in confidentiality. If the president doesn’t believe his advisers will keep his confidences, he will hesitate to seek their candid advice. Or he will limit his circle of advisers to those he knows to be slavishly loyal. (Perhaps this explains why President Obama had only one substantive conversation with Comey during the prior administration).

This is not to say that Comey’s memos should ultimately be found to merit protection under the presidential communications privilege. For one thing, they raise an interesting question of whether there ought to be a self-defense exception to the privilege. After all, even a lawyer is allowed to breach attorney-client privilege in self-defense, such as in a malpractice action or bar complaint brought against her by her client. By analogy, one might argue that Comey should be able to defend himself against the president’s misleading explanation for why he was fired.

This strikes me as a pretty good argument for allowing Comey to tell his side of the story in some forum. But it is less compelling to explain why that forum should be the press, rather than Congress. And it is less compelling still as a justification for anonymous leaking to the press. If the disclosures are justified under the circumstances, why not make them openly?

As these 10 legal experts explained to Vox, there are a number of other reasons why the presidential communications privilege might not apply to Comey’s discussions with Trump. The strongest of these, in my judgment, are (1) that the president has waived the privilege in one manner or another and (2) that the need for the information is sufficient to overcome the privilege here. These arguments, however, are best evaluated in the context of an official proceeding, such as a congressional hearing. In that context, one can say with some assurance (in my opinion) that the need of the Senate Select Committee on Intelligence for Comey’s testimony outweighs the president’s interest in confidentiality. But one cannot make that judgment when the information is given to the New York Times.

Comey’s Defenses

Personal documents. Comey himself has maintained that his memos were his personal property or records, rather than the property or records of the FBI or the US government. If this were so, it would bolster Comey’s defense against some of the charges made against him (e.g., the alleged violation of 18 U.S.C. § 641 relating to conversion of US government property or records). On the other hand, it would not necessarily help him with regard to whether he violated the FBI employment agreement or breached the presidential communications privilege.

Figuring out whether these memos should be considered government records turns out not to be so easy. Had Comey simply made notes of his recollections of his conversations with the president and kept those notes at home or in a personal file, they might not qualify as agency records for purposes of the Freedom of Information Act. But if he created them during work hours, wrote them on FBI computers, and/or shared them with others in the FBI leadership, it becomes difficult to categorize them as personal records. Even some of Comey’s most ardent defenders are not persuaded of his argument in this regard.

It should be noted that Judicial Watch has brought a lawsuit against the FBI contending the Comey memos are “agency records” and therefore subject to FOIA. We may therefore ultimately get a judicial ruling on this issue.

Whistleblower status. A number of Comey’s defenders have maintained that he is not a “leaker,” but a “whistleblower.” To the extent that this is meant to imply that Comey would be legally entitled to whistleblower protection for disclosing the memos to the press, it is clearly wrong (as Tom Devine, one of the leading authorities on whistleblower laws, explains here).

More plausibly, Eric Columbus argues that Comey is entitled to a kind of “moral whistleblower” status (my term). Columbus suggests that Comey’s actions would have been covered by the Whistleblower Protection Act except for the “wrinkle” (his word) that the Act explicitly exempts the FBI from its protections.

Strictly speaking, that’s not right either, but let’s not quibble. I can accept that Comey’s disclosure of information regarding his discussions with Trump falls within the spirit, if not the letter, of the whistleblower protection laws. But such laws generally require that reporting of improper or illegal conduct occur within proper channels, unless it is apparent that those channels are ineffective or unresponsive. As the FBI employment agreement indicates, Congress and the Inspector General are recognized as official channels for reporting misconduct. The press is not.

Furthermore, there was no reason to believe that Congress would ignore Comey’s testimony or memos. Prior to his termination from the FBI, Congress was already investigating Russian involvement in the 2016 election, and indeed Comey had testified before Congress on that subject. Clearly he knew that if he informed Congress of the existence of the memos, it would want both copies of the memos and testimony regarding their contents. Had Comey simply notified the chairmen and ranking members of the House and Senate intelligence and judiciary committees of the existence of these memos, there would have been no reasonable possibility the information would have been ignored.

Comey explained that his motive for disclosing the contents of his memo to the Times was the hope that “it might prompt the appointment of a special counsel.” This pro-Comey Lawfare article explains that “Comey believed the information needed to get to the public expeditiously.” But whistleblowers don’t get to provide information to the press just because they worry the proper authorities won’t themselves provide it to the press fast enough. (In any event, the rapid leaking that followed Comey’s October 28, 2016 letter to Congress regarding the Clinton investigation suggests that this was an unwarranted fear.)

A desire to influence the appointment of a special counsel also seems like a suspect justification for “moral whistleblower” status. If for some reason disclosure to Congress was less likely to lead to the appointment of a special counsel (let’s say because Congress would be seen as taking the lead on the investigation), it is not the prerogative of the whistleblower, in my opinion, to decide that question.

Conclusion

While there is no reason at this time to believe that Comey’s disclosure to the Times violated any criminal law, there are grounds to question whether this disclosure complied with other federal laws, regulations and standards. Reasonable people can differ on these issues, but Comey had to know that leaking the memos to the press was more legally and ethically problematic than providing them to Congress. Unless Comey had inside information to suggest that releasing the memos to the press would result in the immediate appointment of a special counsel (which would raise a host of other issues), it is hard to understand why he thought this was a preferable route to take. At best, he needlessly provided his critics and opponents with impeachment material (in the cross examination sense) for use in the court of public opinion and/or in the event he should testify in another type of judicial proceeding.

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