President Trump, through his press secretary, has recommended that the Justice Department, which answers to Trump, should consider prosecuting former FBI director James Comey. The statements by Sarah Huckabee Sanders were not a model of clarity, and the way they’ve been reported may have confused matters. There is no doubt, however, that the Trump administration is politicizing law enforcement — exactly what it accuses Comey of having done.
Ms. Sanders accused Comey of leaking “privileged information” to the media and giving false testimony to Congress. The disclosure of “privileged information” is generally not a crime unless the information is classified — and Ms. Sanders did not claim that Comey divulged classified matters. The spokeswoman, moreover, failed to specify what the purportedly false testimony was, although she appeared to be referring to statements the former FBI director made to Congress regarding the Hillary Clinton emails probe — the investigation she accused Comey of politicizing.
Sanders was not clear on whether the White House believed Comey had probably committed a crime or merely strayed into a legal gray area, burbling that his “improper” actions “likely could have been illegal.” While paying lip-service to the notion that encouraging a prosecution is “not the president’s role,” Sanders nonetheless asserted, “I think if there’s ever a moment where we feel someone’s broken the law, particularly if they’re the head of the FBI, I think that’s something that certainly should be looked at.”
The press secretary’s description of the former FBI director’s actions may or may not have been accurate, depending on whether her oral remarks have been correctly punctuated in reporting by the Washington Post (whose version is substantially duplicated by The Hill). The Post relates Sanders’s statement as follows (my italics to highlight the possible confusion):
Comey, by his own self-admission, leaked privileged government information weeks before President Trump fired him. Comey testified that [if?] an FBI agent engaged in the same practice, they’d [sic] face serious repercussions. I think he set his own stage for himself on that front.
Obviously, Sanders was referring to Comey’s disclosure to the New York Times of a portion of a memo he had written about a conversation with Trump. According to Comey, during that February 14 conversation, Trump pressured him to drop the investigation of retired General Michael Flynn, the national-security adviser Trump had just fired. The problem with Sanders’s account, as quoted above, is that the leak to the Times happened days after, not “weeks before,” Comey was fired by Trump.
To recap, Comey was fired on May 9. He has recounted that his leak was a reaction to a tweet by Trump on May 12 — three days later. In that tweet, Trump said, “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press.” Comey related (in Senate Intelligence Committee testimony) that a few days after the tweet, it dawned on him that Trump’s allusion to tapes implied the existence of recordings that could corroborate Comey’s version of events. Using an intermediary, he thus leaked a portion of his memo to the Times, which published a story about it on May 16. Comey hoped the leak would “prompt the appointment of a special counsel” — who obviously would attempt to obtain any relevant recordings. Soon afterwards, Robert Mueller, was in fact appointed special counsel. President Trump has since represented that he made no recordings.
If the Post has framed Sanders’s assertions accurately, she was clearly wrong about the timing of the leak. I suspect, however, that the Post’s punctuation is wrong — which obviously can happen when oral statements are transcribed. The phrase “weeks before President Trump fired him” may not have been the end of Sanders’s first sentence (about Comey’s leak); it may have been the beginning of her next sentence (about Comey’s testimony regarding possible FBI leaking). If I am correct about this, Sanders’s statements should have been reported as follows:
Comey, by his own self-admission, leaked privileged government information. Weeks before President Trump fired him, Comey testified that [if?] an FBI agent engaged in the same practice, they’d face serious repercussions. I think he set his own stage for himself on that front.
This would be closer to accurate. Comey has admitted leaking his memo. The information in the memo — a summary of a conversation between the president and FBI director — was clearly sensitive and, even if not classified, should not have been leaked. And, in a May 3 Senate hearing, Comey had testified that there would be “severe consequences” if he found out FBI agents leaked investigative information. (We should note that this was less than a week before Trump fired him, not “weeks before,” as Sanders said.) This seems like a more plausible rendering. After all, the point Sanders was trying to make was that Comey’s leaking of investigative information was condemnable under his own prior condemnation of such leaking.
Of course, hypocrisy — if that’s what this was — is not a criminal offense. Again, there was no criminal leak unless classified information was involved. Comey has said it was not. So far, no one has contradicted him on this point (a matter I addressed in a July 10 column).
Moreover, Sanders’s suggestion that there may be a prosecutable perjury case against Comey is frivolous. The press secretary appears to be referring to Comey’s congressional testimony in which he said that he did not decide against seeking an indictment of Mrs. Clinton until after she was interviewed in early July, just before Comey’s July 5 press conference. This flies in the face of new revelations that Comey began drafting a statement exonerating Clinton months before the investigation was concluded and key witnesses (including Clinton herself) were interviewed. Even crediting the revelations, there is no perjury. Technically speaking, decisions are not made until they are formally announced because they can always be reversed up until that final point — you buy your house at the closing, not months before when you make the purchase decision. More significantly, as I demonstrated in a recent column, the decision to decline prosecution was not the former FBI director’s — technically, it was Attorney General Loretta Lynch’s; in essence, it was President Obama’s.
President Trump, his staff, and his apologists need to internalize the points they have been making in Trump’s own defense: Public officials can misuse their power in unsavory ways without necessarily violating the law. Trump used his executive power over law-enforcement in a heavy-handed way to try to end the Flynn investigation because he believed Flynn had suffered enough. Comey exploited his high-ranking position and the information to which it gave him access to publicize some of that information in an effort to influence the course of an investigation — i.e., to force the appointment of a special counsel. Both were wrong, but both were seeking a just result as they perceived it. Their actions were not commendable, but neither were they illegal.
Public officials can misuse their power in unsavory ways without necessarily violating the law.
Meanwhile, if you were offended by President Obama’s effort to exonerate Hillary Clinton even as she was under investigation — however perfunctorily — by the FBI and Justice Department, you should be equally offended by President Trump’s effort to incriminate James Comey even as his actions are scrutinized in an ongoing investigation. As we’ve pointed out here several times, law enforcement is not an independent branch of government. In our system, it answers to the executive. Presidents must provide enforcement policy guidance. Yet, when they stray into involvement in individual cases, they run a high risk of corrupting the process. The fact that they are constitutionally empowered to do that does not make it a benign practice.
When presidents publicly opine on an individual person’s guilt or innocence, it tells the president’s subordinates how the boss wants the case to go. This can result in an innocent person’s being railroaded, but that is hardly the only danger. As we’ve previously explained, if a suspect actually is guilty, a president’s comments are a boon for him. If the president has said the suspect should be let off the hook, the Justice Department may hamstring the investigators. If the president has signaled that the suspect should be prosecuted, the suspect will claim that he was charged because of politics, not evidence. He will portray the proceedings against him as tainted from the start, the jury pool as infected with bias, and investigators unleashed to pull any dirty trick necessary to frame him. Irresponsible presidential commentary makes it much more difficult to prosecute the guilty.
How hard is it to say, “The White House does not comment on matters that could be under Justice Department investigation,” or “The president has appointed a new FBI director, has nothing further to say about the former FBI director, and feels no need to respond to Steve Bannon interviews”?