Does Comey need the Comey defense?

Former Assistant United States Attorney Andrew McCarthy is a natural teacher. In his current NRO column, he gives a short course on the intent element of criminal statutes. All our criminal laws set forth the elements of an offense. The intent element of a given crime (oversimplified, the intent to perform a given act) is to be distinguished from motive (the reason for performing the act).

In his July 2016 press conference exonerating Hillary Clinton of possible violation of the Espionage Act — 18 U.S.C. section 793 — former FBI Director James Comey displaced intent with motive in order to achieve the result he desired. Because Clinton meant no harm to the United States, according to Comey, she lacked the intent required to violate the statute.

Comey is an experienced prosecutor. His confused analysis was itself intentional. Driven by a foreordained conclusion, he needed the confusion to achieve the desired result. If he had provided the analysis in answer to a hypothetical question on a Criminal Law exam, he would flunk the test. The confusion is basic.

McCarthy shows Comey’s analysis of the question of intent in his exoneration of Clinton to be confused in this basic sense. Let us call Comey’s mistaken requirement of bad motive in the Clinton case the Comey Defense.

Now we know that Comey himself removed copies of seven memos on his meetings with President Trump when he left the FBI and that four of the seven were classified. He entrusted four of the memos to his friend Daniel Richman at Columbia Law School for the purpose of leaking the contents to the New York Times. Richman leaked the contents of the memos at Comey’s behest to engineer the appointment of Special Counsel to investigate the Trump campaign, as Comey desired. At least one of the memos Comey leaked to Richman must have been classified. See the press release and letter posted by Senate Judiciary Committee Chairman Chuck Grassley.

Assuming other elements of an offense under the Espionage Act are present, Comey’s leak itself may therefore have violated the act. His leak may also have violated some other law. If so, Comey would undoubtedly assert that he meant no harm. He meant well. One wonders if Comey is counting on the authorities to apply the Comey Defense to excuse his misconduct.


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