The DOJ Will Not Prosecute James Comey over Trump Memos

Then-FBI Director James Comey testifying on Capitol Hill in 2015. (Joshua Roberts/Reuters)
Turning the page away from the politicization of investigations

A  free society cannot stay free for long if the criminal-justice system becomes a political weapon, if that becomes our norm.

The most alarming aspect of the Trump–Russia investigation, and of the stark difference between the aggression with which it was pursued and the see-no-evil passivity of the Clinton emails caper, is the way the investigative process was used to influence political outcomes.

The way to right that wrong is to prevent it from becoming the new normal, not to turn the tables of abuse when power shifts from one side to the other. We can only make things worse by losing the distinction between rebuking errors in judgment and criminalizing them.

Ardent Trump supporters are growling over news that the FBI’s former director, James Comey, will not be prosecuted by the Justice Department for the mishandling of memoranda he wrote about his contacts with the president. The news has been reported by The Hill’s John Solomon and the Washington Post’s Devlin Barrett, among others.

Comey’s handling of his memos is one aspect of probes related to investigations attendant to the 2016 election, which are being conducted by Justice Department independent counsel Michael Horowitz. Indications are that Horowitz referred the memos issue to the Justice Department for possible prosecution and that, after reviewing the IG’s findings, Justice declined to pursue the matter as a criminal case.

That is the way things are supposed to work. The inspector general’s job is to ensure that colorable allegations of misconduct against Justice Department officials (including FBI officials) are thoroughly examined, so that all of the relevant facts are uncovered. The Justice Department then reviews the IG’s report, mindful of two imperatives that are in tension. On one hand, clear criminal misconduct must be prosecuted; otherwise we have a two-tiered justice system in which those we trust to enforce the law can violate it with impunity. On the other hand, poor judgment, while it should be censured and may be the basis for disciplinary action, must not be criminalized; otherwise, we discourage talented, honorable people from taking jobs that are all about excruciating judgment calls.

What happened in this instance? We don’t know yet — and that alone calls for restraint. It is no knock on Messrs. Solomon and Barrett, who are excellent reporters with good sources, to caution that we have not yet seen the IG report.

To be sure, many relevant facts are known. The Comey memos have been public for some time, the former director has testified about them in congressional hearings, and they were part of the mountain of information from which Special Counsel Robert Mueller’s staff derived their final report. Still, there is much we do not know. Past experience informs us that IG Horowitz is thorough and careful. His office has interviewed lots of witnesses and scrutinized government reports to which we do not have access. His report is not expected to be released until September. Until then, we won’t know what happened, and why. In the meantime, since I have known both Attorney General Bill Barr and former director Jim Comey for many years, I am confident about two things.

First, no one is better suited than Barr to weigh the pros and cons of prosecuting alleged government misconduct. He has prioritized the importance of resisting the politicization of law enforcement and he grasps the stakes involved. He is also a big enough boy to tune out the noise from the Trump–Comey feud: the president’s nonstop depiction of Comey as the reincarnation of Lavrentiy Beria, and the former director’s worn-thin moralizing about how “Trump eats your soul in small bites” — including Barr’s own. The attorney general is not going to authorize a prosecution in the absence of clear evidence of a serious crime.

Second, I do not believe that Jim Comey would willfully leak classified information. Unless and until someone can show me he did it, I am going to continue assuming he did not.

That does not mean his handling of the memos was model behavior, though. It seems to me that he played with fire.

The existence of the memos became known shortly after Comey was fired on May 9, 2017. It is only natural that they raised alarm. One would expect that if a president and an FBI director met several times, memos documenting those conversations would contain at least some classified information. Comey, moreover, brazenly acknowledged that he had orchestrated the leak of at least a portion of one memo to the New York Times. That is not normal.

Nevertheless, Comey is very smart. And you don’t have to agree with his politics or like his style to realize that he has spent much of his career protecting national security. By definition, when information is classified, that means its unauthorized disclosure could damage American national security. Might Comey mishandle classified information? Sure, it’s possible — plenty of smart, patriotic public officials have done that. But to me, it is implausible that Comey would knowingly do that, much less intentionally transmit classified intelligence to the media.

That said, the classified-information facet of this episode has been exaggerated. There were seven memos in all, totaling 15 pages. Our understanding is that Comey tried to avoid putting classified information in them, and believed he had succeeded. Yet after obtaining and accounting for all of them, the FBI designated two of them as “confidential,” the lowest level of classification. We do not know at this point (or, at least, I don’t know) whether the memo leaked to the Times — regarding the February 2017 Trump–Comey discussion of the investigation of former national-security adviser Michael Flynn — was one of the classified ones. But we can easily deduce that Comey neither intended it to be classified nor thought it was. At one point in the memo, Comey wrote, “NOTE: Because this is an unclassified document, I will be limited in how I describe what I said next.”

We know that Comey shared this memo with a friend (who is also a friend of mine, and who was his intermediary with the Times), and that he shared at least some of the memos with his lawyers (who are also friends of mine). From a classified-information standpoint, however, we are talking about a small number of documents, and it is unclear that Comey knew anything in them was classified. Even if he turned out to be wrong about that, it is highly unlikely that prosecutors could prove beyond a reasonable doubt that he was grossly negligent in mishandling them, much less that he willfully mishandled them.

To my mind, the issue here has never been criminal misconduct in connection with classified information. The relevant matters are the non-criminal but serious impropriety in the handling of non-public government information, and the failure to protect the confidentiality of communications as to which the president has a presumptive privilege — a privilege that subordinate executive officials are obliged to respect, regardless of whether they respect the president himself.

There is no problem with Comey’s having chosen to write the memos. Much is made of the fact that he did not trust President Trump and that he felt compelled to document their communications, even though he did not do that when he spoke with President Obama. So what? He is entitled to feel that way. He was under no duty either to write or to refrain from writing memos. As long as he recorded events fairly and honestly when he chose to report them, nothing more was required.

The problem, however, is that the former director seems to have regarded the memos as his own property, rather than the government’s. To the contrary, these were clearly accounts of government business compiled by a government official using government property on government time. The memos were not Comey’s to keep; and they were certainly not his to disseminate to the media.

Reports of non-public government business are sensitive, regardless of whether they contain classified information. Conversations between the president and top national-security officials are among the most sensitive. Top executive officers, such as the FBI director, are well aware that those communications are presumptively privileged, and that the privilege belongs to the president. The director can be cut some slack for keeping memos he wrote in his home rather than in his office — an FBI director is never off duty. But he’s got no business leaking government files of any kind to the media, and that goes double for memoranda about communications with the president — any president, end of story.

It makes no difference that, at the time of the leak, Comey was no longer the FBI director. A public official, particularly of such high rank, has continuing fiduciary duties upon leaving government service — even when the departure is against his will. Of course it was wrong for the administration to give conflicting rationales for Comey’s firing. It was also wrong for the president to goad the former director with a farcical, shades-of-Watergate tweet, suggesting there might be White House recordings of their conversations. There are many ways the former director could appropriately have responded to these provocations; leaking a government memo was not one of them.

Comey has said he was hoping to trigger the appointment of a special counsel. But he could have done that, in his new capacity as a private citizen, by arranging a press conference at which he called for the appointment of a special counsel. It would have gotten plenty of attention. Comey, a gifted public speaker, would have made a forceful presentation that would have gotten significant traction on Capitol Hill, where Democrats were already clamoring for a special counsel.

The former director’s decision to proceed by leaking to the media a government memo, documenting a sensitive but probably not classified meeting with the president, was wrong. It was the kind of behavior it is impossible to imagine that Comey, as FBI director, would abide if one of his subordinates had done it. Indeed, in Comey’s memo about the Flynn conversation, he describes speaking at length with Trump about the menace of leaks, about how they undermine the president’s capacity to do his job. He even recounts telling the president that he was “eager to find leakers and would like to nail one to the door as a message.”

To leak the memo was unbecoming conduct. It is worthy of censure. That does not make it a felony.

The ongoing Justice Department and congressional inquiries into the investigations attendant to the 2016 election are wide-ranging. In assessing investigative overreach, it is vital to remember that the remedy for politicized law enforcement is not more politicized law enforcement. If officials with a commendable record of service to the country took steps they should not have taken out of lapses in judgment — including lapses driven by overwrought suspicions of impending danger to the nation — then there needs to be an accounting. We will also need to implement better oversight procedures to insure against a repetition.

That, however, does not mean crimes were committed. The president’s fans should remember that their main complaint has been that Donald Trump and his campaign were treated as suspects in heinous, traitorous crimes despite the absence of credible incriminating evidence. The investigators, too, are entitled not to be presumed guilty of crimes, even by those of us who are convinced that there were investigative irregularities.

Let’s get the facts first, and then we can decide whether laws were broken, and whether there has been misconduct worthy of prosecution. And when we decide, let’s bear in mind that a norm against criminalizing political disputes cannot be reestablished unless we commit to reestablishing it. That means keeping the political vendettas out of the investigations.


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