“I think there is no secret Comey, by his own self-admission, leaked privileged government information. Weeks before President Trump fired him, Comey testified that an FBI agent engaged in the same practice; they face serious repercussions. I think he set his own stage for himself on that front. His actions were improper and likely could have been illegal.”
— White House press secretary Sarah Huckabee Sanders, press briefing, Sept. 12, 2017

“The memos that Comey leaked were created on an FBI computer while he was the director. He claims they were private property, but they clearly followed the protocol of an official FBI document. Leaking FBI memos on a sensitive case, regardless of classification, violates federal laws including the Privacy Act, Standard FBI Employment Agreement, and nondisclosure agreement all personnel must sign. I think that’s pretty clean and clear that that would be a violation.”
— Sanders, press briefing, Sept. 13

These were some bold statements by the White House press secretary, essentially accusing ex-FBI director James Comey, who was fired by President Trump, of breaking the law and strongly suggesting that he should be prosecuted.

White House officials would not explain their reasoning but Sanders’s statements appear derived from an opinion column published in the Hill in June by George Washington University law professor Jonathan Turley.

Among Turley’s key points:

  • “There are ethical and departmental rules against the use of material to damage a former represented person or individual or firm related to prior representation. The FBI website warns employees that ‘dissemination of FBI information is made strictly in accordance with provisions of the Privacy Act; Title 5, United States Code, Section 552a; FBI policy and procedures regarding discretionary release of information in accordance with the Privacy Act; and other applicable federal orders and directives.’”
  • “One such regulation is § 2635.703, on the use of nonpublic information, which states, ‘An employee shall not engage in a financial transaction using nonpublic information, nor allow the improper use of nonpublic information to further his own private interest or that of another, whether through advice or recommendation, or by knowing unauthorized disclosure.’”
  • “The standard FBI employment agreement bars the unauthorized disclosure of information ‘contained in the files, electronic or paper, of the FBI’ that impact the bureau and specifically pledges that ‘I will not reveal, by any means, any information or material from or related to FBI files or any other information acquired by virtue of my official employment to any unauthorized recipient without prior official written authorization by the FBI.’”

So let’s take a look at whether there is much of a case against Comey.

The Facts

What Comey said
From his first meeting with then-President-elect Trump in December, Comey began writing memos about his conversations with the president because, he told Congress, he decided he could not trust Trump to speak accurately about them. At that first meeting, Comey was tasked by other senior intelligence officials to pull Trump aside and tell him about the content of a salacious dossier on Trump written by a former British intelligence agent.

In testimony before the Senate Intelligence Committee on June 8, Comey said: “To ensure accuracy, I began to type it on a laptop in an FBI vehicle outside Trump Tower the moment I walked out of the meeting. Creating written records immediately after one-on-one conversations with Mr. Trump was my practice from that point forward.”

Comey noted that the briefing for Trump was classified, and that “in the car, that was a classified laptop that I started working on.”

When Sanders says “the memos that Comey leaked were created on an FBI computer while he was the director,” she appears to be referring to this particular instance. It is not clear whether Comey used FBI computers for his other memos, though it is quite possible that he did. However, he also said that he made sure that one particular memo was unclassified — and this is the memo that Comey has acknowledged giving to a friend with the express purpose of it getting into the media.

This memo recounted a Feb. 14 conversation with Trump in which Comey says the president cleared the Oval Office of all aides before asking Comey to end the investigation into his fired national security adviser, Michael T. Flynn. “He is a good guy,” Trump said, according to Comey’s testimony. “I hope you can let this go.”

After the meeting, Comey said, “I immediately prepared an unclassified memo of the conversation about Flynn and discussed the matter with FBI senior leadership.” In his testimony, Comey indicated that only the memo of his first conversation with Trump was classified.

“I remember thinking, this [the Feb. 14 meeting] is a very disturbing development, really important to our work,” Comey said. “I need to document it and preserve it in a way — and this committee gets this — but sometimes when things are classified, it tangles them up. It’s hard to share it within an investigative team. You have to be very careful about how you handle it, for good reason.”

Comey added: “My thinking was, if I write it in such a way that I don’t include anything that would trigger a classification, that’ll make it easier for us to discuss, within the FBI and the government, and to hold on to it in a way that makes it accessible to us.”

As head of the FBI, Comey was the original classification authority for his agency, meaning he made decisions on whether something is considered classified or not. According to his testimony, he wrote the memo specifically so it would not be considered classified information.

Comey’s language suggests the memo was considered for use within the FBI, possibly making it a government document. But at the time, he also did not contemplate he would be fired, so he may have just been describing his state of mind when he prepared the document.

When Sen. Roy Blunt (R-Mo.) asked whether Comey thought the memo was a personal or government document, Comey said it was personal. “I understood this to be my recollection, recorded, of my conversation with the president,” he said. “As a private citizen, I felt free to share that. I thought it very important to get it out.”

The Hill in July reported that government officials now believe more than half of Comey’s memos — four of seven — were deemed to contain information classified at the secret or confidential level. But there is no indication that the one memo Comey has admitted sharing — on the Feb. 14 meeting — contained classified material.

The case against Comey
Just the fact that something was written on an FBI computer does not mean it is an FBI document — the FBI allows for some personal use of computers — but for the sake of argument let’s assume these were FBI documents.

We also do not know the form of the memos, such as whether they represented “protocol of an FBI document” as Sanders claims, but it’s unclear why that would be relevant. They clearly were not 302s, official FBI documents that summarize field interviews.

While Turley referred to a duty to a “former represented person” (presumably the president), Comey never acted as an attorney for the federal government and no client-attorney privilege was involved. (Update: Tunley, as noted below, objected to this description in a response to this column.)

Moreover, the claim that Comey violated the Privacy Act, on its face, does not appear to make much sense. The Privacy Act of 1974 is mostly concerned about the collection and dissemination of information about people that is maintained in government files, such as personnel records or financial and medical information. The section of the FBI website quoted by Turley appears to refer to the FBI’s Name Check program, in which the agency responds to requests from other federal agencies.

The claim that Comey violated the Privacy Act would make more sense if Comey had leaked the personnel files of White House officials, which he did not do. So it’s hard to see how the Feb. 14 memo was a “record” within the meaning of the Privacy Act.

As for Comey seeking to further his own “private interest,” that also seems to be a stretch. He leaked his memo in response to Trump suggesting, in a tweet, that he had tapes of their conversations. Comey also wanted to ensure the appointment of a special prosecutor. But there does not appear to be a financial motive at stake.

Turley’s strongest argument in his column is that Comey violated his FBI employment agreement. In it, he promised: “I will not reveal, by any means, any information or material from or related to FBI files or any other information acquired by virtue of my official employment to any unauthorized recipient without prior official written authorization by the FBI.”

Comey clearly did not seek permission from the FBI before leaking the memo. “I seriously doubt that Comey would deny that he was tasked with enforcing federal law and regulations prohibiting the removal or disclosure of federal material, including potentially classified material,” Turley said.

Susan Hennessey, a Brookings Institution fellow and managing editor of Lawfare, said she agrees that Comey probably violated his employment agreement. “But so what? The remedy is the employer fires you,” she said, but Comey had already been fired and no longer had a job at the FBI. She did not view Comey’s memo, recounting his conversation with Trump, as much different from former FBI director Louis J. Freeh writing a memoir that trashed President Bill Clinton.

Turley, in an email, noted that “there are an array of possible violations if these documents were FBI documents and not personal information,” including “possible violations associated with the classified status of any material removed from the FBI computer or offices.”

Tunley acknowledged that “enforcement through actual criminal charges is rare.” But he said the threat of prosecution is often suggested.

“I have had clients where these laws and regs were used during Comey’s tenure,” he said. “The enforcement is generally on an administrative level even though employees are repeatedly warned that they can be prosecuted. Comey was expressly tasked to investigate leakers under these laws and regulations and it fell to him to enforce the laws. Often violations are addressed through termination of employment or access to classified material. It can also result in court orders for searches or compelled disclosure.”

Update: Tunley, in a new column for The Hill, blasted this analysis as “a prototypical example of the bias in reporting on these controversies.” He said none of this means that Comey should be charged criminally, but it is important that we recognize the underlying violations that he committed in this controversy,” which he believed The Fact Checker failed to do. He listed what he described as four false premises in this column, and readers are invited to judge for themselves.

The Pinocchio Test

By slipping in words like “illegal,” phrases like “protocol of an official FBI document” and claiming a violation of the Privacy Act, Sanders suggests possible criminal violations that are hard to justify. She also says Comey leaked memos, when in fact he leaked a single memo that he has described as unclassified. She says Comey, “by his own self-admission, leaked privileged government information,” but he said it was a personal memo, not a government one. Whether it contained privileged information has not been proven.

Comey probably violated his employment agreement, but he was already out of the job.

To some extent, the level of possible violations is a judgment call, open to legal interpretation, making it problematic to assign a Pinocchio rating. But at the very least, Sanders’s spin is worthy of two Pinocchios for its innuendo and incomplete or inaccurate information.

Two Pinocchios

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Two Pinocchios
"His actions were improper and likely could have been illegal.”
at a news briefing, Washington, D.C.
Tuesday, September 12, 2017