White House

Comey Confirms: In Clinton Emails Caper, the Fix Was In

James Comey on his book tour, April 18, 2018 (Reuters photo: Lucas Jackson)
He knew Obama’s Justice Department would sweep Hillary’s violations under the rug, so he played along.

While promoting his memoir, A Higher Loyalty: Truth, Lies, and Leadership, former FBI director James Comey sat for what turned out to be a tough but fair and refreshingly civil interview by Bret Baier, host of Fox News’s Special Report. (See Part 1 and Part 2.) Owing to President Trump’s comparatively unhinged interview earlier in the day on Fox & Friends, the Trump–Comey feud over alleged leaking of classified information is drawing most of the media attention. But something more important is less apparent: Comey has implicitly confirmed what we’ve been saying here for well over a year: In the Clinton emails caper, the fix was in.

Before we turn first to leaking, some disclosure. I am fond of Jim Comey and have been for 30 years. I vigorously disagree with both his handling of the Clinton emails investigation and the manner in which the FBI has conducted what is supposed to be a classified, counterintelligence probe of Russia’s interference in the 2016 election — not a public, government-orchestrated campaign of insinuation that Trump was complicit in Russian perfidy.

No doubt because of my personal regard for him and respect for his high-end ability, I am inclined to cut the former director slack. He was thrust into a no-win situation: It is not his fault that Democrats nominated a criminal suspect, or that Republicans nominated an irregular politician heedless of the norms of discretion and distance that a president should maintain when dealing with his law-enforcement subordinates. Comey aside, I had no better friends in nearly 20 years as a federal prosecutor in New York than Dan Richman, the Columbia Law School prof through whom Comey transmitted information to the New York Times, and Pat Fitzgerald and Dave Kelley, Comey’s lawyers. These aren’t just former colleagues of mine; they are old friends. I haven’t tried to speak to any of them about this matter, but my esteem for them weighs on me — as does my duty to be an honest analyst. How well I resolve that tension is not for me to say; I can just tell you it is real.

Comey Did Not Leak Classified Information
Notwithstanding the president’s insistence that Comey leaked classified information, the known evidence strongly suggests that this is not the case. To be clear, there are significant problems with the former director’s account, but the claim that he committed a crime is specious.

The leak claim centers on a memo-to-self Comey wrote about a White House meeting on February 14, 2017, in which he alleges that the president asked him to drop the investigation of Michael Flynn, the former national-security adviser whom Trump had fired the preceding day. Several months ago, when we first learned that Comey had written memos of his conversations with the president, I observed that they were unlikely to be classified because Comey, who is smart and careful, would avoid including such information. Well, the memos were made public about a week ago, and we now know that the one in question is not classified. (See here, pp. 10–11.) Obviously, unless information is classified, the criminal laws against unauthorized disclosure of such information are inapposite.

As for the rest of the story, the best thing Comey has going for him is Trump. In his over-the-top way, the president publicly accused the former director of a felony, so the controversy is focused on whether Comey is guilty of a crime—which he is not.

But an incident can be disturbing without being incriminating.

Comey’s claim that his memos constitute personal “aide-mémoire” rather than government reports is untenable. Imagine a criminal case, in which federal law requires the government to disclose to the defense all prior witness statements in its possession. An FBI agent joins other investigators in conducting surveillance. Although he was not responsible for writing the official FBI report, the agent realizes he may someday be called to testify. So, when he gets home, he jots down notes of what he observed in a diary. He rationalizes that his notes are his personal memory and his diary is his personal property; they do not belong to the government. Therefore, he does not turn in a copy of the notes for the government’s file.

If our hypothetical agent were ever called to testify, any judge in America would rule that the notes are constructively government property, and that the government must produce them to the defense. They would be deemed a government record generated by a government agent in the course of and in relation to official government business.

If Comey had not been the FBI director, he would not have had these discussions with the president of the United States about investigations. His memos, clearly, were made in the course of and in relation to his official duties. They were written on FBI-issued equipment. The standard FBI employment agreement unambiguously states:

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.

These memos belonged to the government. The information in them belongs to the government. Indeed, some of the memos evince Comey’s understanding of this: Two are in the form of emails Comey sent to his top FBI staffers — one with the subject line “My notes from private session with PE [President-elect] on 1/16/17”; another, dated March 1, 2017, with the subject line “Call from POTUS.” Of course, we know that the FBI was scrutinizing the campaign Trump ran, and that Comey says Trump had pressured him to drop the Flynn investigation. So Trump — regardless of what Comey was telling him in their face-to-face conversations — was a subject of FBI investigations. Palpably, that’s why the director shared his notes with the team running the investigations — even asking, in the first memo, whether in designating it “SECRET” he had chosen “the proper classification.” (The first memo (“1/16/17”), which was not leaked to the media, is classified and contains redactions.)

The fact that the memos were government property is important because the former director has posited a Clintonesque objection to accusations that he “leaked” information. He had already been fired when he gave the February 14 memo to Richman with instructions to pass it on to the Times. Thus, his theory goes, he was merely a private citizen passing along his personal aide-mémoire.

But in fact, the February 14 memo (the physical memo and its informational content) belonged to the government. Comey orchestrated the transmission of its contents to the media without authorization. That’s a leak, period. Comey has tried to circumvent this inconvenience by a crimped definition of “leak” — it is only, he told CNN’s Anderson Cooper, the “unauthorized disclosure of classified information.” No, that is a classified leak. Other unauthorized disclosures to the media of non-public government information may not be quite as serious, but they are still leaks.

As a matter of fact, most non-public investigative information the FBI generates is not classified, yet its unauthorized disclosure is forbidden — and rightly so: A great deal of non-classified information is highly sensitive, and its disclosure could endanger lives and destroy investigations. No surprise, then, that the FBI employment agreement outlines several categories of information (I count 13 of them besides classified information) that officials are prohibited from disclosing without authorization. As of the moment he was fired, the former director was no longer empowered to authorize the dissemination of non-public government information outside the government. Absent permission from a qualified official, he simply was not authorized to cause the release to the media of an FBI-generated memo about a meeting between the president and the FBI director (even though he wrote the memo and was the director in question). To his credit, Comey conceded to Baier that, while the claim that he leaked classified information is frivolous, the question of whether he violated his employment agreement is not.

Having defensible reasons makes Comey’s actions understandable, but not appropriate. He leaked, and he should not have leaked. It was not a crime, but it should not have happened.

Moreover, all high executive-branch officials know that conversations with the president about official business are potentially covered by executive privilege. That is why executive officials typically refuse in congressional testimony to answer questions about conversations with the president — the privilege belongs to the president. An executive official who discloses without authorization deprives the president the opportunity to assert the privilege lawfully.

Comey was not without his reasons. Trump had ominously and falsely suggested that there were secret recordings of his conversations with the former director. Although the president’s intimation was that Comey might lie about these conversations, Comey believed any tapes would corroborate his version of events. So, he reasonably figured that, by disclosing his account of the Flynn meeting, he might force disclosure of any recordings Trump had — perhaps through a special-counsel investigation of whether the Flynn conversation amounted to obstruction. As it happens, after a special counsel was appointed, the president admitted there were no recordings.

Having defensible reasons makes Comey’s actions understandable, but not appropriate. He leaked, and he should not have leaked. It was not a crime, but it should not have happened.

Yes, the Fix Was In
These columns have repeatedly pointed out that the decision whether to indict Hillary Clinton for mishandling classified information was not the FBI’s call. It was up to the Obama Justice Department, which was in the tank for Mrs. Clinton and was taking direction from President Obama. In April 2016, Obama publicly stated that he did not want his party’s inevitable nominee charged with a crime.

In making that assertion, Obama distorted the Espionage Act, falsely implying that it required proof of intent to harm the United States before someone could be convicted of mishandling classified information. To the contrary, the law holds that a person is guilty (1) if she willfully causes the unauthorized transmission of classified information — meaning if she understands the wrongfulness of the action and intentionally performs it anyway — or (2) if through “gross negligence” she permits the information to be removed from its proper place or to be otherwise mishandled (see Section 793(d), (e), and (f) of Title 18, U.S. Code). The Justice Department adopted Obama’s erroneous intent standard, as, ultimately, did Comey.

The former director’s statements in the Brett Baier interview firmly establish that the decision not to indict Mrs. Clinton was based on Obama Justice Department standards, not on the terms of the statute.

For example, when asked why he was confident, long before Clinton was even interviewed, that she would not be charged, Comey said the investigators working the case told him, “Look boss, on the current course and speed, it looks like it’s not gonna get to a place where the prosecutors would bring it.” It was not that the evidence was insufficient under the law; it was that the Justice Department would not indict.

Baier then played a now-familiar recording of Comey, under questioning by Representative Trey Gowdy (R., S.C.), conceding that Clinton had made various false claims about her emails (no emails “marked ‘classified,’” no classified emails sent or stored, all work-related emails returned to the State Department). Baier then asked why, despite this pattern, Comey had made his decision against charges even before Clinton was questioned. While denying that he had made a final decision at that point, he said he had a “general sense” that the evidence was “unlikely to get us to a place where they would prosecute at the Justice Department.

Comey is trying to have it both ways: He wants you to accept that he made the decision not to prosecute on his own, out of fear that the Justice Department was tainted by bias in Clinton’s favor. Yet, when dismissing critics’ claims that the proof was more than adequate under the applicable law, he shrugs his shoulders and says, in effect, “What could I do? I was constrained by the Justice Department’s interpretation of the law.” That is, his hand was forced by the same pro-Clinton bias that he was supposedly thwarting.

This became excruciatingly apparent when Baier pointed out the care Comey took to describe Clinton’s conduct as “extremely careless” rather than “grossly negligent” — the state of mind criminalized by the Espionage Act. Though these terms are substantively indistinguishable, this semantic ploy enabled Comey to obscure the inconvenience that Clinton was guilty under the statute as written. Comey’s retort was telling:

I was struggling with the fact that we thought it was not mere sloppiness but didn’t rise to the level of criminal misconduct that the Justice Department would prosecute. So, how do you describe that? I probably should have said “really sloppy.” I wanted to be honest and say, “It’s above ‘sloppy.’ It doesn’t add up to what the 1917 statute meant when it said, “‘Grossly negligent’ is a felony.”

No, to be honest, the FBI just has to describe what she did. If what she did was extremely careless, then that does add up to “grossly negligent” under the 1917 statute — but it is for the Justice Department to connect those legal dots. If Obama’s Justice officials fail to do so, that’s politics, not law enforcement, so why let the non-partisan FBI get dragged into it? It is not the FBI’s job to make pronouncements on the law. It is not the FBI’s burden to pull out the thesaurus and don Mrs. Clinton’s misconduct in just the right lexical finery until it finally fits the Obama Justice Department’s misinterpretation of a clear criminal statute.

It was not the FBI’s task to manage Mrs. Clinton’s risks or defend the Obama Justice Department’s politicized enforcement standards.

Again, Comey would have us see him, simultaneously, as the stalwart check on potential Justice Department corruption and the helpless slave of Justice Department direction. But he can’t be both. The simple fact is: Nothing obliged him to exercise prosecutorial discretion in the emails investigation. The FBI’s job was to investigate, not to decide whether the evidence was sufficient to support an indictment. If he was worried that Attorney General Loretta Lynch was conflicted, the upright move was to advise her to step aside — and to do it not at the end but at an earlier point, when it might have helped the FBI get out from under the irregular constraints her Justice Department was imposing on investigators. And a prosecutor’s conflict is not a basis for the FBI to appropriate her authority — Lynch had a deputy and other subordinates who could have acted as attorney general if her recusal was warranted.

More to the point, there was no need to say anything. There is no requirement that the FBI or the Justice Department ever announce that an investigation has been closed. The former director keeps asking, “What was I to do” under these difficult circumstances? The answer is: nothing. The government speaks in court, when a person is formally accused of a crime and has the full pallet of due-process rights to defend herself. Unless and until that happens, no one is entitled to know whether an investigation exists or what its status may be.

The public did not have the right to know what was happening in the Clinton investigation. In fact, we recently learned in connection with the inspector-general’s report on Comey’s deputy, Andrew McCabe, that Comey had quite properly tried to conceal the existence of an ongoing investigation of the Clinton Foundation. It was not Comey’s fault that the Democrats nominated someone under criminal suspicion, but neither was it Comey’s duty to remove the suspicion. Indeed, Comey repeatedly told Trump that the FBI could not publicly say Trump was not a suspect: If new evidence ever emerged that turned Trump into a suspect, Comey explained, he would be obliged to correct the misimpression.

So why not the same rules for Clinton? After all, those are the rules. When the Democrats nominated Clinton, they were knowingly running the risk that the investigation might explode her candidacy. If the country had elected her, we would have been running the risk (however minimal) that a Clinton Justice Department might someday indict her. It was not the FBI’s task to manage Mrs. Clinton’s risks or defend the Obama Justice Department’s politicized enforcement standards.

Director Comey took it upon himself to do both. It was not possible simultaneously to do that and to protect the FBI from the fallout.

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