Former FBI Director James Comey will be subjected to personnel action for his ethics violations, but will not be prosecuted. This continues an unfortunate and ill-advised trend of failing to prosecute mostly anti-GOP figures, including examples such as Hillary Clinton (uranium sales to Russia in return for “donations” to her organization, email violations) and former IRS official Lois Lerner (using her agency for partisan political purposes, harassing the Tea Party) for their crimes.
Yesterday, The Department of Justice (DOJ) Inspector General Michael E. Horowitz announced the release of a report examining former Federal Bureau of Investigation (FBI) Director James B. Comey’s retention, handling, and dissemination of certain memoranda memorializing seven one-on-one interactions that he had with President-elect and President Donald J. Trump between January 6, 2017, and April 11, 2017.
the OIG concluded that the memos were official FBI records. The OIG determined that Comey violated applicable policies and his FBI Employment Agreement by providing one of the unclassified memos that contained official FBI information, including sensitive investigative information, to his friend with instructions for the friend to share the contents of the memo with a reporter. Additionally, the OIG determined that Comey, while FBI Director, kept copies of four of the seven memos in a personal safe at his home and, after his removal as FBI Director, violated FBI policies and his FBI Employment Agreement by failing to notify the FBI that he had retained them, or to seek authorization to retain them. Comey likewise violated applicable policies and his FBI Employment Agreement by providing copies, following his removal as FBI Director, of the four memos he had kept in his home to his three private attorneys without FBI authorization. Comey also failed to fulfill his obligation to immediately alert the FBI about his disclosures to his private attorneys once he became aware that the FBI, after Comey’s removal, had determined that one of the memos included several words, the names of foreign countries being discussed by the President, that were classified at the CONFIDENTIAL level.
Upon completing its investigation, the OIG provided its factual findings to the Justice Department for a prosecutorial decision regarding Comey’s conduct, as required by the Inspector General Act. After reviewing the matter, the DOJ declined prosecution. The OIG provided today’s report to the FBI and to the DOJ Office of Professional Responsibility for action they deem appropriate.
Congress has provided the FBI with substantial powers and authorities to gather evidence as part of the FBI’s criminal and counterintelligence mission. The FBI uses these authorities every day in its many investigations into allegations of drug trafficking, terrorism, fraud, organized crime, public corruption, espionage, and a host of other threats to national security and public safety. In the process, the FBI lawfully gains access to a significant amount of sensitive information about individuals, many of whom have not been charged, may never be charged, or may not even be a subject of the investigation. For this reason, the civil liberties of every individual who may fall within the scope of the FBI’s investigative authorities depend on the FBI’s ability to protect sensitive information from unauthorized disclosure.
As Comey himself explained in his March 20, 2017 testimony
before the House Permanent Select Committee on Intelligence, he was unable to
provide details about the nature or scope of the FBI’s ongoing investigation
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very careful in how we handle information about our cases and about the people
we are investigating…. Our ability to share details with the Congress and the
American people is limited when those investigations are still open, which I
hope makes sense. We need to protect people’s privacy…. We just cannot do our
work well or fairly if we start talking about it while we’re doing it.
However, after his removal as FBI Director two months later,
Comey provided a copy of Memo 4, which Comey had kept without authorization, to
Richman with instructions to share the contents with a reporter for The New
York Times. Memo 4 included information that was related to both the FBI’s
ongoing investigation of Flynn and, by Comey’s own account, information that he
believed and alleged constituted evidence of an attempt to obstruct the ongoing
Flynn investigation; later that same day, The New York Times published an
article about Memo 4 entitled, “Comey Memo Says Trump Asked Him to End Flynn
Investigation.”
The responsibility to protect sensitive law enforcement information falls in large part to the employees of the FBI who have access to it through their daily duties. On occasion, some of these employees may disagree with decisions by prosecutors, judges, or higher ranking FBI and Department officials about the actions to take or not take in criminal and counterintelligence matters. They may even, in some situations, distrust the legitimacy of those supervisory, prosecutorial, or judicial decisions. But even when these employees believe that their most strongly-held personal convictions might be served by an unauthorized disclosure, the FBI depends on them not to disclose sensitive information.
Former Director Comey failed to live up to this responsibility. By not safeguarding sensitive information obtained during the course of his FBI employment, and by using it to create public pressure for official action, Comey set a dangerous example for the over 35,000 current FBI employees—and the many thousands more former FBI employees—who similarly have access to or knowledge of non-public information. Comey said he was compelled to take these actions “if I love this country…and I love the Department of Justice, and I love the FBI.” However, were current or former FBI employees to follow the former Director’s example and disclose sensitive information in service of their own strongly held personal convictions, the FBI would be unable to dispatch its law enforcement duties properly, as Comey himself noted in his March 20, 2017 congressional testimony. Comey expressed a similar concern to President Trump, according to Memo 4, in discussing leaks of FBI information, telling Trump that the FBI’s ability to conduct its work is compromised “if people run around telling the press what we do.” This is no doubt part of the reason why Comey’s closest advisors used the words “surprised,” “stunned,” “shocked,” and “disappointment” to describe their reactions to learning what Comey had done.
We have previously faulted Comey for acting unilaterally and inconsistent with Department policy. Comey’s unauthorized disclosure of sensitive law enforcement information about the Flynn investigation merits similar criticism. In a country built on the rule of law, it is of utmost importance that all FBI employees adhere to Department and FBI policies, particularly when confronted by what appear to be extraordinary circumstances or compelling personal convictions. Comey had several other lawful options available to him to advocate for the appointment of a Special Counsel, which he told us was his goal in making the disclosure. What was not permitted was the unauthorized disclosure of sensitive investigative information, obtained during the course of FBI employment, in order to achieve a personally desired outcome.
The OIG has provided this report to the FBI and to the Department of Justice Office of Professional Responsibility for action they deem appropriate.
