Okay, so former FBI director James B. Comey failed to dot his i’s and cross his t’s in creating and retaining memos detailing his private conversations with President Trump during the months between Trump’s inauguration and his sacking of Comey on May 9, 2017.
The report issued on Thursday by Justice Department Inspector General Michael Horowitz found that Comey broke no laws and did not release any classified information.
But Horowitz took Comey to task for retaining the memos rather than leaving them with the FBI when he departed. The inspector general concluded that the memos were “public records,” not personal documents, as Comey had argued.
Horowitz also larded his report with civics lessons on the rule of law and the “dangerous example” in Comey’s failure to strictly follow FBI guidelines concerning the handling of government records. There is a strong sensation of outrage in the Horowitz report, which the New York Times characterized as “blistering.”
The problem with the report is that it gives almost no weight to the context in which Comey acted, a failing Horowitz aggravates with his hall-monitor rectitude.
Because the context was extraordinary. When a president summons the FBI director to demand loyalty, and then urges the director during a second conversation to drop a criminal investigation against an ally, we are not in the normal territory of FBI rules and procedures.
In that setting, Comey’s instinct to immediately memorialize the conversations in written memorandums was spot on.
The inspector general argues that Comey’s sin wasn’t the creation of the memos, but his subsequent handling of them.
Horowitz argues that Comey could have served his purposes by leaving the memos at the FBI but then making vague public statements about his belief they should lead to the appointment of a special counsel. That scenario seems unlikely and, in any case, not Horowitz’s bailiwick. Had Comey stayed on the straight and narrow path as Horowitz insisted he should have, there is a real possibility that the public would still not have seen the memos.
And from the standpoint of American democracy, the prospect of keeping the memos hidden from public view must be taken as intolerable. Particularly since the president was characterizing Comey’s account of their private conversations as a lie from the beginning, and pompously tweeting that Comey “better hope that there are no tapes of our conversations.”
The possibility that Trump and his administration could have kept the memos from coming to light for at least a period of years is easy to imagine. Given this White House’s track record of stonewalling requests for information that outsiders know exists, can anyone say with confidence that the memos that no one would have known about would ever have seen the light of day?
Of course not. Once Trump had fired Comey, what unfolded was a near-singular moment of crisis inside the FBI and the executive branch. Comey believed his firing was likely an attempt by the president to obstruct justice. He was the nation’s top investigative cop and yet was suddenly out of his job. It was genuinely unclear how things would play out and which institutions or public servants could be relied on to do their duty in the public’s interest.
A huge fire had broken out, and Horowitz is now castigating Comey for using a noncompliant fire extinguisher.
Comey will be remembered for his arrogance in deciding when to bend rules, as he did when he took it upon himself to gratuitously issue his personal assessment of Hillary Clinton’s behavior as “extremely reckless” when he announced the closing of the criminal investigation against her in 2016.
But bigger issues were at stake than just the proper handling of government records. Even if Comey deserves his knuckle-rapping, we are lucky that Comey opted to bend the rules and provide the memos to the public.