Jurisprudence

Inspector General Report Reveals Charges Against James Comey To Be Mind-Numbingly Stupid

Former Federal Bureau of Investigation Director James Comey speaks to members of the media at the Rayburn House Office Building after testifying to the House Judiciary and Oversight and Government Reform committees on Capitol Hill December 07, 2018 in Washington, DC.
Former Federal Bureau of Investigation Director James Comey speaks to members of the media at the Rayburn House Office Building after testifying to the House Judiciary and Oversight and Government Reform committees on Capitol Hill December 07, 2018 in Washington, DC.
Alex Wong/Getty Images

On Thursday, the Department of Justice Office of the Inspector General released its long-awaited report on James Comey’s handling of a series of memos documenting alleged obstruction of justice by President Donald Trump. The IG found “no evidence” that Comey had leaked classified information to the media as the president has repeatedly and falsely alleged. It was reported earlier this month that the DOJ would not be bringing any charges against Comey.

Because the principal conclusion clears Comey, Trump’s defenders are understandably focused on the IG report’s second main finding: That Comey’s handling of the memos “violated Department and FBI policies concerning the retention, handling, and dissemination of FBI records and information, and violated the requirements of Comey’s FBI Employment Agreement.”

“[F]ormer FBI Director put partisanship and personal ambition over patriotism and his legal obligations to the American people,” Rep. Doug Collins, the ranking minority on the House Judiciary Committee, said in a statement.

“I appreciate the time and effort [Inspector General Michael] Horowitz and his team spent documenting the off-the-rails behavior of Mr. Comey regarding the leaking of law enforcement materials to the media,” said Sen. Lindsey Graham, the chairman of the Senate Judiciary Committee.

If you actually read the 61-page IG report in full, though, it makes clear that not only did Trump fabricate the principal charge that Comey leaked classified information, but the secondary charge for which the IG has now slapped Comey’s wrist is mind-numbingly dumb.

First, in May 2017, the New York Times published an article describing a contemporaneous memo Comey had written documenting a one-on-one meeting in which the president had allegedly asked the-then FBI director to drop any investigation of National Security Advisor Michael Flynn. (The president has denied making these statements.) That article led directly to the appointment of Special Counsel Robert Mueller, who ultimately won a guilty plea against Flynn for lying to the FBI and documented ten instances of likely obstruction of justice by Trump, including Comey’s firing and the aforementioned demand that Comey end the Flynn probe. (As the Mueller report dryly describes Trump’s attempts to deny this incident: “Despite those denials, substantial evidence corroborates Comey’s account.”) The following month, Comey testified before Congress that he had leaked the memo to the Times through a friend in order to spur the appointment of the special counsel, who would ultimately uncover the president’s apparent obstruction of justice.

This material—along with three other memos documenting his interactions with Trump that Comey had taken home, kept in a personal safe, and handed over to personal attorneys including the friend who shared some of the material with the Times—is what Comey allegedly mishandled.

As a source familiar with the matter confirmed to me last April, two of these memos were unclassified, one had information that Comey had redacted from the material he handed to his attorneys and that was later classified, and the other had material that was also classified after the fact. (Comey had not classified any of this material when he wrote it and told the IG that he considered it personal material, a position which the IG rejected.) In its report, the IG confirmed this description of the classification status of the material and added that the fourth memo had been classified after-the-fact because it contained a quote from Trump apparently demeaning to a foreign country, a decision Comey responded to by saying “are you guys kidding me?”

In any event, none of the classified information was ever handed to a media organization, according to the IG, despite Trump’s repeated claims that Comey “gave [his memo] to a friend to leak classified information” to the media and “leaked CLASSIFIED information, for which he should be prosecuted.”

Comey’s sin was that he broke office protocol by taking documents he made and sharing these documents with his attorneys and unclassified portions of them with the public. The report largely ignores the substance of Comey’s disclosure, which directly led to his testimony before Congress about presidential obstruction of justice and a 182-page report documenting that obstruction and other apparent crimes.

The IG’s report seemed to implicitly acknowledge that Comey’s actions were taken in an effort to act as a whistleblower, noting that while he was “not a covered employee under the FBI Whistleblower Protection Act” there were actions he could have taken that would have served the same whistleblowing purpose and not violated FBI rules. The IG said he should have gone to the “OIG, the Department’s Office of Professional Responsibility, the FBI Office of Professional Responsibility, the FBI Inspections Division, and Congress, in addition to the Acting FBI Director” with his information. How he might have done any of this if he didn’t have the memos in his possession, the act for which the IG has criticized him, is unclear. But at least the IG seems to acknowledge that Comey’s motives were understandable, and perhaps reasonable.

Ironically, the IG’s report offers the news that the FBI had already tacitly accepted that Comey’s public disclosure was appropriate. The day before his Senate testimony, the FBI handed Comey the memos in question along with three others “for him to review at home in preparation for the hearing.” So, the FBI acknowledged directly to Comey before his testimony that the material that Graham described as an “off-the-rails” leak could be discussed publicly in front of the Senate Intelligence Committee and the entire country.

The IG report should hopefully bring the whole pathetic episode of Trump’s efforts to “investigate the investigators” to a close. Republicans, including the president, are already using it to smear Comey and claim to exonerate Trump. But that doesn’t change the fact that the ultimate findings are little more than a joke.