Criminal Justice & the Rule of Law Executive Branch Intelligence

In Sharing Memos, Comey Did Nothing Wrong as a Former Official and Everything Right as a Whistleblower

Timothy Edgar, Susan Hennessey
Friday, June 9, 2017, 1:00 AM

The world has waited for Donald Trump’s response to yesterday’s stunning testimony from former FBI Director James Comey. Trump’s uncharacteristic restraint in holding back from tweeting yesterday apparently didn’t last long. This morning he wrote:

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The world has waited for Donald Trump’s response to yesterday’s stunning testimony from former FBI Director James Comey. Trump’s uncharacteristic restraint in holding back from tweeting yesterday apparently didn’t last long. This morning he wrote:

The notion that Comey confessed to something untoward yesterday by acknowledging that he shared memos with a confidant and directed their disclosure to press sources is getting quite a bit of traction, particularly in conservative media. Trump’s personal lawyer, Marc Kasowitz, accused Comey of “leaks of [] privileged information” and went so far as to suggest that “the appropriate authorities” might determine there was criminal conduct worthy of investigation. Kasowitz has now indicated that he plans to file a complaint with the Justice Department’s Office of the Inspector General on Comey’s disclosure of the memo. (It’s not clear what the result of such an investigation would be given that Comey is no longer a government official.)

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There’s just one problem with this line of critique: Comey didn’t actually do anything wrong. In fact, there is nothing to suggest his actions were illegal, unethical, immoral, or otherwise inappropriate.

Let’s start with a bit of background. On February 14—the day after National Security Advisor Michael Flynn had been forced to resign—President Trump had a disturbing, and possibly criminal, conversation with the FBI Director. After pointedly dismissing other advisors and senior officials from the Oval Office, Trump told Comey, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” Comey told the committee that he “took [this comment] as a direction” to drop the investigation into Flynn and memorialized his alarming conversation with Trump in an unclassified memo, sharing the details with FBI senior leadership. The group was “shocked” and “troubled” but, without any way to corroborate the one-on-one conversation, they struggled with what to do about it.

Then, on May 9, a Tuesday, Trump suddenly fired Comey. On May 12, that Friday, Trump tweeted:

On May 15, the following Monday, Comey testifies that he awoke in the middle of the night with the realization that these alleged tapes might corroborate his account of the February 14 meeting. According to Comey:

I asked a friend of mine to share the content of the memo with a reporter. Didn't do it myself for a variety of reasons. I asked him to because I thought that might prompt the appointment of a special counsel. I asked a close friend [now confirmed to be Columbia Law Professor Dan Richman] to do it.

On Tuesday, May 16 the New York Times reported the contents of a memo detailing the alarming Oval Office meeting. The following day, Wednesday, May 17, Deputy Attorney General Rod Rosenstein appointed Robert Mueller as Special Counsel.

Comey stated that he decided to disclose the memo because, among other reasons, “I thought it might prompt the appointment of a special counsel.” Clearly, he was effective in doing so. But the defense of Comey’s conduct is not that he achieved some greater good with an illegal leak. It is that he had no obligation to keep confidential the memo in question at all. Let’s walk through a few claims emerging as lines of critique and why they don’t hold up.

Claim #1: Comey knew the “leak” was wrong and that’s why he tried to hide it using an anonymous intermediary.

Consider the original New York Times story reported at the time that “Mr. Comey shared the existence of the memo with senior F.B.I. officials and close associates. The New York Times has not viewed a copy of the memo, which is unclassified, but one of Mr. Comey’s associates read parts of it to a Times reporter.”

The most significant revelation from yesterday was that the Comey personally directed the information be shared with the press.

As a former official, Comey does not have to get permission to speak to the media or coordinate his statements. He can speak to the press directly on whatever terms he likes: on the record, on background, or off the record. He can also share information indirectly, by asking a friend to contact the media on his behalf, as long as there is no duty to keep the information secret. There are many legitimate reasons for sources to request anonymity. Indeed, the First Amendment protects such interactions.

But in evaluating the way Comey went about things, it’s especially worth noting that it would have been extraordinarily easy for Comey to avoid personally directing the leaks. He could have developed an understanding with close associates regarding their level of discretion in talking to press, as well as the general conditions under which he might personally believe press disclosures to be appropriate. He could then, entirely consistent with the law, say under oath that he had not directed the release of this information. This is an especially common practice among people who know they might one day be on the receiving end of congressional subpoenas.

But Comey didn’t attempt to insulate himself. He surely knew he would soon be under oath about the matter and went about it in a way to accept personal responsibility. He didn’t just honestly answer the question, he actually volunteered information he wasn’t asked—including that he had directed the disclosure and done so in order to encourage the appointment of a special counsel. A great deal of criticism has focused on his decision to use an intermediary and of that intermediary’s having provided the information to the Times anonymously. Given the way the information was provided to the media, it seems entirely plausible that this was intended to be a temporary situation until Comey was himself called to testify; as soon as that happened, he volunteered precisely what he did.

In fact, Comey was directly asked about his decision to go through a third party. He explained: “The media was camping at the end of my driveway at that point. I was actually going out of town with my wife to hide. I worried it would be feeding seagulls at the beach if it was I who gave it to the media.” Comey believed the information needed to get to the public expeditiously. His story to the committee makes clear the precise chain of custody, instead of being vague and creating the perception that any number of people who might have seen the memos (including current FBI officials) might have been the source.

Claim #2: It’s illegal.

This is an easy one. No, it isn’t.

Comey expressly testified that the document in question was unclassified. Comey wrote memos following each of his nine one-on-one conversations he had with Trump. He said, “I knew there might come a day when I would need a record of what had happened, not just to defend myself, but to defend the FBI and our integrity as an institution and the Independence of our investigative function.” While some of those memos were classified, he took special care to ensure this one was not. In yesterday’s hearing, Senator Mark Warner observed “I found it very interesting that … you made clear that you wrote that memo in a way that was unclassified… [W]as that because you felt at some point, the facts of that meeting would have to come clean and come clear … in a way that could be shared with the American people?” In response, Comey confirmed that he wrote the document so as to “make[] it accessible” because he anticipated a future need to share it. The information wasn’t classified. It didn’t plausibly include any “national defense information.” Therefore, the Espionage Act is inapplicable.

As Steve Vladeck notes, the only even remotely plausible statute under which Comey’s conduct might be criminal is 18 U.S.C. § 641, barring the conversion of government property. But, as Vladeck also notes, in U.S. v. Morison (as well as Carpenter v. U.S.) courts determining whether information qualifies as property focus on the financial value. There’s no argument at all here that Comey’s memos had financial value.

In an exchange with Senator Roy Blunt, Comey suggests the memos weren’t government documents at all:

BLUNT: So you didn't consider your memo or your sense of that conversation to be a government document. You considered it to be, somehow, your own personal document that you could share to the media as you wanted through a friend?

COMEY: Correct. I understood this to be my recollection recorded of my conversation with the president. As a private citizen, I thought it important to get it out.

We’re less convinced by this part of the argument. It is clearly right that recorded recollections of conversations with a president are not necessarily government property. But if Comey wrote these memos about official meetings, on official computers, on official time, that probably makes it hard to argue they aren’t government records. That said, Comey could certainly reproduce the content in his personal capacity without the documents qualifying as government records.

To our mind, the better argument is that Comey had explicit or implicit permission to retain these memos, because other officials knew he had them and was using them to prepare his testimony. Comey retained the originals and returned them to the government (in the form of special counsel Robert Mueller) when asked.

In any event, the argument this qualifies as conversion of government property under § 641 is laughably thin, regardless of whether the documents qualify as government records or not.

Claim #3: It violates executive privilege.

There has been some suggestion that, by sharing the details of presidential communications, Comey violated “executive privilege.” Executive privilege is a rather murky concept, but it doesn’t really apply to this situation. This privilege is the asserted right of the President to withhold certain documents or information from legislative subpoenas, judicial proceeding, or public requests for information. Its applicability to the situation of sharing communications with a confidant and then the press is not at all obvious. And to the extent the privilege does apply, it isn’t absolute and can always be overcome by a showing of need. In any event, the D.C. Circuit has held, in In re Sealed Case (Espy), when considering the deliberative process element of executive privilege, that it is waived “when there is any reason to believe that government misconduct has occurred.”

This is all to say that there isn’t much of an executive privilege argument in the legal sense. Instead, people are using the term “executive privilege” to denote some broader, non-legal obligation of confidentiality for presidential communications.

It’s true that Trump clearly had some expectation of confidentiality in his communications with his FBI Director. By disclosing the conversation outside the executive branch, Comey violated that expectation. But if Comey acted unethically, then so have hundreds of former officials who have written about their communications with presidents. In fact, in contrast to many officials who disclosed such communications merely in the course of memoir writing, Comey’s disclosure aimed to get highly relevant information about serious presidential misconduct to the public. And Trump engaged in precisely the kind of misconduct that undercuts confidentiality and privilege claims generally; the crime-fraud exception moots attorney-client privilege where the privileged communications themselves further a crime, for example.

Beyond this, Trump’s expectation of confidentiality simply wasn’t reasonable. The president does not have a reasonable expectation of confidentiality when he fires someone, lies about the reasons he did so, and then publicly defames and threatens that person.

Claim #4: Comey is a hypocrite.

It is true that Comey has strongly condemned unauthorized disclosures in the past. We could quibble over whether the term “leak” appropriately applies here or not, but that is mostly semantics.

In the Washington Post, Steve Vladeck shares our analysis regarding the absence of illegality, but he writes that Comey’s actions deserve censure anyway:

Of course, none of this means that Comey acted “appropriately” in orchestrating the leak of his memos. Not for the first time, it appears that Comey took it upon himself to breach important norms governing the conduct of senior law enforcement officials—an offense that, perhaps ironically, would have unquestionably justified his termination, if he hadn’t already been fired before doing it.

But both that position, and the argument Comey is hypocritical, miss some key points.

Within the executive branch, the actual “norm” is less about not having outside communications as it is about not having outside communications the President would deem contrary to his interests. As a practical matter, agency heads get a lot of discretion about what kind of kind of information to share and how they share it. As a practical matter, if Comey had done so while still serving, he would certainly have been fired.

But Comey wasn’t the FBI Director any more. He had been summarily fired. There was simply no obligation at that point to act in a manner consistent with the Administration’s direction.

Moreover, Comey didn’t condemn unauthorized disclosures on the basis of some unitary executive theory. He did so on the ground that such disclosures harm national security or law enforcement interests.

There is a substantial variation in judgements regarding whether particular leaks are justified or not. Most people feel top FBI official Mark Felt, the famous “deep throat” of Watergate fame, was right to blow the whistle on Nixon’s crimes. Conversely, most recognize that J. Edgar Hoover’s use of leaked information, including from the FBI’s wiretapping of Martin Luther King, Jr. constitutes an egregious abuse. Between those extremes, reasonable minds differ, and one has to balance interests.

But in this case, there actually isn’t anything to balance. There just wasn’t national security or law enforcement damage from the disclosure. To the contrary, the manner in which Comey disclosed this information is actually precisely how we should want a whistleblower to act.

The conduct in question was exceptionally serious and consequential to the nation. Comey was careful to not disclose anything that might risk harming national security or law enforcement interests. He shared the information within the government to determine if there was some way to address it. In open testimony, he declined to provide such information in a public forum even where the facts may well have helped his case. He is cooperating with the Senate Intelligence Committee on classified materials. He is cooperating with Special Counsel Robert Mueller. And he volunteered information regarding his involvement and made himself available for questions.

Over the course of this long and storied career, Comey has been an exceptional public servant. He was a good prosecutor, a good Deputy Attorney General, and a good FBI Director. He turns out to be a pretty good whistleblower too.

Timothy H. Edgar teaches cybersecurity and digital privacy at Brown University and Harvard Law School. He is the author of Beyond Snowden: Privacy, Mass Surveillance and the Struggle to Reform the NSA. He served as a privacy official in the National Security Staff and in the Office of the Director of National Intelligence, and was a legislative counsel for the American Civil Liberties Union.
Susan Hennessey was the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She was a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.

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