As far as I have read, the arguments that Comey violated laws in revealing his memos to Professor Dan Richman or to the press are remarkably weak. I am chiefly responding to Trump counsel Mark Kasowitz’s letter and Jonathan Turley’s post. The bottom line is that there’s nothing to these arguments. It’s a legal error to keep referring to Comey’s conduct as “leaking” unless one can establish that any of the information was classified or secret. The word “leak” might seem broad, but it has a specific meaning. It’s not revealing uncomfortable details if those details were not legally established as secret.
- Let’s start with the ambiguous suggestion that the conversations were privileged. It’s striking that Kasowitz never specified which privilege in his letter, but if he’s referring to executive privilege, then Trump clearly waived that privilege. Trump first referred to those particular conversations in the public statement on firing Comey on May 9th. Then he tweeted about tapes the next day. By referring publicly to their conversations and this content, he waived his claim for privilege and secrecy of those exchanges. Moreover, the Trump administration did not invoke the privilege before today, so they are trying to slam the door on the barn after the horse has already run away, as they say. It’s not only a practical problem, it’s also a legal problem. Courts are not going to take this claim seriously when the President had notice of the testimony and did nothing at the appropriate time. It’s just an empty “make-weight” argument. It’s legal noise without substance. Moreover, executive privilege is not absolute. The Supreme Court in U.S. v. Nixon, the major Watergate case, held that executive privilege must be balanced with the public right to know. The Court rejected Nixon’s argument that he had an “absolute, unqualified Presidential privilege of immunity.” Even if Trump had asserted the privilege earlier, a court would have followed U.S. v. Nixon and find that the public interest outweighs the interests of the executive. And that’s why the administration never asserted the privilege in time: they knew it was a lose-lose situation.
2. Was Comey’s memo classified or did it contain any classified information? Comey himself said that he wrote these memos deliberately to avoid being classified, so he never included any classified information. He carefully gave written and live testimony to avoid divulging classified information.
3. Jonathan Turley suggests that Comey’s memo looks like an FBI “Field 302 form” as part of an investigation, and thus would become an official FBI record. A Field 302 form really is a form, not surprisingly. First, it would be odd for Comey to focus so deliberately on avoiding classified information, but somehow would turn his memo into a form that would limit his use of it. Second, the Trump administration keeps holding on to the fact that Comey had told Trump that he was not personally under investigation, so it’s odd to suggest that Comey’s memo of conversations is actually part of a personal investigation. Can they claim it was informally part of the investigation of others? That seems to be a stretch. One can take notes of conversations and retain his personal possession of those notes, even if they are written on an FBI laptop.
4. Turley suggests Comey violated 18 U.S.C. 641, a statute covering embezzlement, theft, and misuse of government property and records. The statute says: “Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority … conveys … any record … of the United States or of any department or agency thereof… shall be fined… or imprisoned…”
Turley is suggesting that Comey’s memos are official government records or exclusively government property. There’s no clear legal argument for that position. But even if it were a government record, I haven’t read anything that suggests this statute would apply. This article by David Berry, counsel to the NLRB, explains that the statute was based upon the common law crimes of larceny and conversion, and nothing is Berry’s description of the statute’s use seems to fit this case. Moreover, Berry explains that First Amendment values are a check on applying this statute too broadly as a chill on free speech.
5. Turley implies that the memo is covered by the Privacy Act, but again, the memo is not an official government record, nor does it include any information covered by the Privacy Act, as far as I have read. Turley also suggests the memo must be kept undisclosed under FBI policy, but I didn’t see any specific FBI policy addressing personal memoranda or notes. I’d like to see more specifics on this assertion.
6. Turley suggests that the FBI director had signed a non-disclosure agreement. That would be news. The FBI has internal rules, but is there any evidence of separate non-disclosure agreements? This seems speculative and unlikely.
The threat to discipline Comey for disclosing his own notes so far seems to meritless, and the filing of complaints against Comey could constitute “abuse of process.”