Published by The Lawfare Institute
in Cooperation With
Fox News personality Gregg Jarrett is making some waves with a short piece making the remarkable claim that Jim Comey may have himself have broken the law with respect to his now-famous memo recording President Trump's request that he find a way to end the investigation of Mike Flynn. The piece appeared on Fox News Opinion yesterday, and this morning the folks at Fox & Friends gave it a hearty endorsement.
So what exactly are these people claiming? Here are Jarrett's words:
Under the law, Comey is required to immediately inform the Department of Justice of any attempt to obstruct justice by any person, even the President of the United States. Failure to do so would result in criminal charges against Comey. (18 USC 4 and 28 USC 1361) He would also, upon sufficient proof, lose his license to practice law.
This is nonsense. Let me explain.
Let's start with the first of two statutes Jarrett cites: 18 USC 4. This is the general "misprision of felony" statute. It's one of the oldest crimes in the federal criminal code, I believe dating back to 1790. In its current form it provides:
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both. [emphasis added]
There are two obvious reasons why this statute does not apply to Comey's situation.
First, note the word "concealment." This is a stand-alone element of the offense, not just a superfluous verbal flourish restating the point that one must report. Just look at any federal pattern jury instruction: affirmative steps to conceal are required, not just the fact of failing to report the crime. See, e.g., Lancey v. United States, 356 F.2d 407, 4010 (9th Cir. 1966) (silence alone, without affirmative act of concealment, is insufficient). There is no basis for claiming that Jim Comey took affirmative steps to conceal any alleged obstruction by Donald Trump. To argue that Comey somehow affirmatively concealed something by taking care with who got to see his memo entirely collapses this distinction, and would extend liability for misprision to just about every criminal investigator and prosecutor in this country (given how routine it is for both investigators and prosecutors to create but limit circulation of documents with evidentiary content in this sense).
Second, and more fundamentally, Jarrett's op-ed implies that the obligation to report runs specifically to Justice Department prosecutors. That's not what the statute says, however, and of course the more obvious recipients for any such notificiations would be...the FBI. Jim Comey was, of course, FBI Director at all relevant times, and deeply engaged in supervision of existing, related criminal (and probably also counterintelligence) investigations. It's more than a stretch to suggest that the misprision statute somehow creates a "two-person" requirement for knowledge of possible federal crimes, such that it is not enough for one FBI person to be aware of the possible criminal behavior. A "crooked cop" scenario would of course be different, but no one is alleging (nor could they) that Jim Comey was in cahoots with a plan to obstruct the Flynn investigation.
Third, even if misprision concerns required Jim Comey to convey knowledge of Trump's actions to others at FBI, it remains quite possible that he did exactly this.
Well, enough about misprision. It's a bogus argument. What about the other statute Jarrett cites?
I'm at a loss here. The statute—28 USC 1361—provides federal courts with jurisdiction to issue writs of mandamus. All lawyers in the U.S. will recall the writ of mandamus from good ol' Marbury v. Madison: it is a name for an order that obliges a government official to perform some non-discretionary act. Needless to say this is not a criminal law at all, and its application here is a bit of a mystery to me. I suppose he has in mind some notion that the FBI Director has a non-discretionary obligation to contact DOJ prosecutors when there is evidence of obstruction or any other crime, posthaste, and thus one might in theory follow the path of William Marbury, filing a petition for a writ of mandamus to make the Director do so. You can see that this makes no sense in this context.