‘Ethical’ James Comey is under investigation for unethical acts

One day after the disclosure that the Justice Department inspector general has recommended criminal charges against former FBI deputy director Andrew McCabe, it has been confirmed that fired FBI director James Comey is under investigation by the same office for leaking information to the media. This disclosure followed the release of the Comey memos, which seriously undermined both Comey and his cadre of defenders. Four claims by Comey are now clearly refuted, and the memos reaffirm earlier allegations of serious misconduct.

James Comey was a leaker

For more than a year, various media experts have advanced dubious defenses for Comey, including the obvious problem that the man charged with investigating leaks became a leaker himself when as it suited him. Clearly, Comey removed the memos and did not allow for a predisclosure review of the material. Moreover, the memos were withheld by Comey’s surrogate, a Columbia University law professor, who reportedly read the information to the media.

{mosads}If taking and disclosing memos were perfectly proper, why the surrogate and subterfuge? More importantly, Comey did not disclose the memos to Congress or hold copies for investigators. If Comey was not a leaker, then any fired FBI agent could do the same with nonpublic investigatory material. If the inspector general agreed with that position, then federal laws governing FBI material would become entirely discretionary and meaningless.

The memos were FBI material

Various media experts and journalists also defended Comey by portraying the memos as essentially diary entries. When I argued that the memos clearly were FBI material subject to limits on removal and disclosure, the response was disbelief. Legal expert and former FBI special agent Asha Rangappa said that these constituted “personal recollections,” and CNN legal expert and Brookings Institution fellow Susan Hennessey wrote, “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.”

The plain fact, then and now, is that it’s hard to understand that it would be anything other than a record under federal rules. These were memos prepared on an FBI computer, in the course of an FBI investigation. All FBI agents sign a statement affirming that “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” and that an agent “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 memos themselves now confirm their obvious status. 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.

There was no need to leak

In past columns, I have questioned Comey’s claim that he had to remove and leak the memos in the public interest. When Comey took the memos, he knew he was certain to be called before Congress within weeks. He simply could have told Congress about the memos, or even given copies to one of the intelligence committees. More importantly, he knew copies already were in the hands of other FBI officials and were certain to be reviewed by investigators.

Instead, Comey removed seven memos and gave four to his friend, Columbia University law professor Daniel Richman, to leak information to the media. If the memos already were in the hands of other FBI officials, including McCabe, then why leak them? It would not assist the investigation. To the contrary, by disclosing the information, Comey alerted President Trump to the record of their conversations, making it less likely that Trump would contradict such a record.

Why? The reason is obvious: It benefitted Comey. He was able to control the media narrative after his firing and shifted the focus to Trump’s conduct rather than his own. The inspector general recently concluded McCabe leaked information for his personal interest, not that of the public. It’s difficult to envision how the inspector general could come to any other conclusion about Comey’s leak.

The memos were classified

The memos clearly reveal that Comey was aware they likely contained classified information. Comey wrote in a Jan. 7, 2017, memo that “I am unsure of the proper classification so I have chosen secret.” He then left it to his staff to correct that classification. As director, Comey had authority to determine what was classified, although he leaked the FBI documents after he was fired. It turns out that four memos, including two given to his friend to leak to the media, were later found to be classified.

So Comey was no longer director when he removed the memos from the FBI without review. He then gave four memos, including classified ones, to an uncleared individual specifically to leak to the media. Among other people prosecuted for such conduct, former FBI agent Terry Albury is now looking at a sentence of four to five years in prison in an unrelated case.

In his new book, Comey writes, “Ethical leaders choose a higher loyalty … over their own personal gain.” Yet, he opted for personal advantage in the leaking of his memos. He also rushed his book to print, even though the investigation he once headed is ongoing and he is a key witness. Even more remarkably, he never conferred with special counsel Robert Mueller, if nothing else as a courtesy, and especially since Comey’s public references to both disclosed and undisclosed evidence is obviously not beneficial to that investigation.

Comey insists he wrote his book because he believes the country desperately needs “ethical leadership” — his, apparently — and that ethical leaders “don’t hide from uncomfortable questions.” If true, Comey will be a busy man when the inspector general comes calling.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.