Comey’s calculations

“James Comey is a ‘leaker’ — but that doesn’t make him a criminal.” That’s the headline of a Washington Post story by Matt Zapotosky.

The Post’s story tries to create the impression that, in fact, Comey is not a criminal. But Zapatosky undertakes no analysis of the law. Instead, he cites “legal analysts.”

However, none of the analysts in question addresses the question of whether Comey committed a crime. The closest to such a statement is from our friend Shannen Coffin. He says:

I’m not suggesting it’s a good thing to leak. I think it’s abhorrent conduct. But in terms of criminal prosecution, I find that hard to imagine in this context.

I agree. But just because Comey almost surely will not be prosecuted doesn’t mean he didn’t violate the law.

Jonathan Turley, the well-known law professor, writes:

Comey falls under federal laws governing the disclosure of classified and nonclassified information. Assuming that the memos were not classified. . .there is 18 U.S.C. § 641 which makes it a crime to steal, sell, or convey “any record, voucher, money, or thing of value of the United States or of any department or agency thereof.”

Comey conveyed records to his pal the Columbia professor who conveyed them to the New York Times. Though neither Comey nor the prof will be prosecuted, it’s arguable that they both broke the law.

Turley also points out that Comey was subject to non-disclosure agreements he signed, as well as FBI rules limiting disclosure. Comey may have violated some of these obligations, though I agree with Shannen Coffin that prosecution is extremely unlikely.

It’s important to keep in mind that Comey’s partner in leaking (and possibly in crime) was Columbia law professor Dan Richman. Prof. Richman isn’t just a friend of Comey’s. According to his Columbia web page, he is an adviser to Comey. Undoubtedly, the two made a very careful calculation of the pros and con, including potential prosecution, of their leaking.

Here is what they must have decided:

First, although Comey has overseen more leak investigations and prosecutions than any administration in history (according to attorney Edward MacMahon) and has denounced leaking (he did so again at the hearing on Thursday), he would leak the memos.

Second, to reduce the chance that the leak would be traced back to Comey, the law professor would serve as a “cutout.” Richman would do the dirty work.

Third, the fact that the leak would almost certainly be seen as coming from inside the FBI, thus hurting the FBI’s standing in the public mind, didn’t matter. Comey’s standing in the public mind was more important than the FBI’s.

Fourth, because the risk of prosecution for the leaks would be practically nil even if the leaks were traced back to Comey, the leaks should proceed in order to advance Comey’s agenda regardless of whether the leaking violated the letter of the law, and/or FBI rules, and/or non-disclosure agreements Comey signed.

This is the man who constantly claims the moral high ground. This is the man who asks us to believe his account of President Trump’s conduct.

Before Thursday’s hearing began, I was inclined to. Having read Comey’s prepared remarks, I expected that Comey and Trump would disagree regarding important factual questions. Given Comey’s reputation for integrity, whatever his faults, and given my view that Trump has been less than honest at times, I thought that — other things being equal — Comey should have the edge when it comes to weighing credibility.

I no longer see it that way. My view of Trump hasn’t changed, but my view of Comey has. Clearly, he is far from the straight shooter he holds himself out as. His primary interest isn’t the truth; it’s having his way. Kind of like Trump, but without the electoral mandate.

I’m no more inclined to believe Comey than to believe Trump.

What a mess.