There’s a lot of delicious irony in the Justice Department inspector general’s report finding that former FBI Director James Comey violated FBI rules by retaining four memos documenting President Donald Trump’s efforts to obstruct the Russia investigation. In the report, the guy who made a career prosecuting people who leaked information for the public good was scolded for doing the very same things past whistleblowers have been punished for, including holding on to official documents and sharing classified information with their lawyers (and, through them, the media). It turns out Comey didn’t fare too well when his own standards were applied to him.
It is doubly ironic that the man who roiled the 2016 election by accusing Hillary Clinton of being “extremely careless” with her emails, some of which were retroactively classified, has been accused of leaking classified information because one to four words in a document he took home were deemed confidential after the fact.
But there’s an aspect of the report that, when compared with the inspector general’s past practice in a similar case, suggests the office piled on the accusations against Comey to provide basis for a headline-grabbing censure, even where there was no basis for prosecution. Indeed, Trump made the most of the inspector general’s rebuke, asserting that Comey had been “thoroughly disgraced and excoriated” by the report’s conclusions.
According to the report, Comey documented the damning things the president said to him in a series of one-on-one meetings because he believed a contemporaneous record might be necessary “at some point to protect myself and to protect the FBI.” That’s also why he kept a copy of four of the memos—all unclassified at the time—at home in his personal safe.
That’s roughly the same reason that former Attorney General Alberto Gonzales kept notes he drafted in 2004, back when he was the White House counsel, at President George W. Bush’s request. He wrote the notes shortly after briefing top members of Congress about a warrantless wiretapping program he had a role in authorizing. Gonzales would later say that he drafted the notes merely to record lawmakers’ reactions, though the notes included operational details of the program and its code name, Stellar Wind.
In 2005, when he became attorney general, Gonzales took the notes with him from the White House because, as he later said, he wanted to “protect” them. According to the testimony of multiple witnesses, for some period he kept the notes at his home, even at a time when he couldn’t have stored them in a safe there. In 2007, after, yes, James Comey made damning claims in testimony to Congress about the dispute memorialized in the notes, Gonzales reviewed them with the White House to try to rebut Comey’s claims. Far less credibly than Comey, Gonzales claimed he did not think the notes he brought home to protect were classified; he stored them in an envelope marked, “AG -- EYES ONLY -- TOP SECRET.”
Like Comey, after Gonzales alerted others to the existence of the notes, the Justice Department inspector general conducted an investigation into his improper handling of the documents. Like Comey, the inspector general referred the conduct for prosecution. Like Comey, the Justice Department declined to prosecute. With both, the inspector general laid out the purported facts in the investigation in the first section of its report, then followed up with a description in the second section of why those facts show the subject violated departmental rules.
A comparison of how the inspector general used its factual findings in the two reports makes it clear that the Comey report strains mightily to support its conclusion of misconduct. In yesterday’s report, the inspector general did not lay out the facts necessary to support its analysis—and in some instances, it had to twist those facts.
The evidence against Gonzales was compelling. At a time when he couldn’t operate any of the safes available to him, he had some of the most sensitive information in government wrapped inside two envelopes marked Top Secret at either his home or a briefcase he didn’t always lock. Every review of the document upheld a Top Secret/Sensitive Compartmented Information (TS/SCI) classification for it. The conclusion that Gonzales violated Justice Department rules about handling classified information all flows from that.
With Comey, however, the inspector general report doesn’t establish two key facts: whether Comey’s notes documenting Trump’s efforts to interfere in investigations recorded official business, and whether he disclosed any non-public information about a pending investigation. The factual findings about a third issue, the classification review that found Comey had taken home a document that included “confidential” information, said that those conducting the review would “not be shocked” if others found the information to be unclassified. A judge ultimately found that just one word in the memo was confidential.
Because the factual findings section does not present compelling evidence on these three points, the analysis section at times strains to support its conclusions—and in some places introduces new information.
For example, there’s the conclusion that Comey improperly disclosed Trump’s request that he drop the investigation into Michael Flynn (i.e. “I hope you can let this go”) to his friend Daniel Richman, who then told the New York Times. For the first time, the report in the second section cites Comey’s colleagues’ response to his action. “Members of Comey’s senior leadership team used the adjectives ‘surprised,’ ‘stunned,’ ‘shocked,’ and ‘disappointment’ to describe their reactions to learning that Comey acted on his own to provide the contents of Memo 4, through Richman, to a reporter.”
The report later also claims there is “no doubt” that his colleagues used those words because he violated the FBI duty to safeguard investigative matters. But if there were truly no doubt, then the report could have shown that by citing those witnesses stating that themselves. Since the report relies on this language in its analysis of two different findings, those reactions should be included, with full context, in the factual findings section.
Then there’s the report’s claim that, in releasing that same memo, Comey had revealed non-public investigative information. To back this up, the report includes two lengthy footnotes on former Deputy Attorney General Sally Yates’s extensive testimony to Congress about her discussion with White House Counsel Don McGahn about Flynn—testimony that revealed a great deal about the status of the FBI’s Flynn investigation as it existed on the day she got fired. These footnotes attempt to argue that Yates’s disclosures were less substantive than Comey’s repeated references to Trump describing the calls Flynn had made to Russia’s ambassador (calls that were publicly disclosed) and insisting that Flynn had done nothing wrong. The second footnote describes that information by asserting, “Comey’s disclosure of Memo 4 provided the public with details relevant to the Flynn investigation.”
But what Yates’s testimony demonstrates is that Yates had, without objection from the Justice Department, introduced a great deal of information about the investigation into Flynn into the public record before Comey’s disclosure. Furthermore, the report cannot claim that he revealed details about the investigation itself. The actual new information that the memo disclosed was a description of how the president had, in highly unusual fashion, tried to end the investigation into Michael Flynn. The memo could only have disclosed investigative information if the president himself was being investigated—and he wasn’t yet.
The inspector general might have argued that fielding a request from the president to end an ongoing investigation is part of that investigation itself. But it tellingly does not lay out that case, instead merely claiming that such a request is “relevant” to the investigation.
More generally, the report does not discuss whether presidential efforts to intervene in investigations, in violation of department rules about proper communication channels and chain of command, constitute the official business of the FBI director. The report does, however, lay out abundant evidence that such efforts are not normal. It quotes former FBI General Counsel Jim Baker stating that any one-on-one meetings are “quite outside the norm of interactions between the FBI Director and a President of the United States.” It describes Baker and Comey’s repeated efforts to address Trump’s direct communications: After Trump asked Comey to let the Flynn investigation go, the report quotes Comey as saying he “took the opportunity to implore the Attorney General to prevent any future direct communication between the President and me. I told the AG that what had just happened—him being asked to leave while the FBI Director, who reports to the AG, remained behind—was inappropriate and should never happen.”
After Trump called Comey directly about an intelligence investigation on March 9, 2017, Comey called then-Attorney General Jeff Sessions immediately, “to keep the Attorney General in the chain of command between [Comey] and the President.” The last memo records Comey reviewing again the proper channels for the president to intervene in investigations; the report’s discussion of it notes that Comey’s chief of staff shared the details in real time with the proper chain of command.
Is this what constitutes official business? This is what the inspect general’s report would have you believe: that the president asking Comey to do things that break the FBI’s rules is part of the FBI director’s job—and hence, Comey is at fault for airing that official business to his associates and ultimately the press. The report treats a memo recording the president demanding that he “‘lift the cloud’ created by the investigation into Russian interference in the 2016 presidential election” as official business, implying that Comey should have done what the president asked of him.
This report could have been a review of why the Justice Department’s chain of command never found a way to stop Trump’s repeated efforts to influence investigations in ways that violated Justice Department rules and guidelines. The report’s revelation that someone handed over a full copy of those memos under whistleblower protection suggests it probably should have. Of course, that report could only have reviewed the failures of the attorney general and his deputies in the Russia investigation, when in fact the violations were caused by the president—someone the inspector general has no jurisdiction over. Instead, after significant public pressure from the president and reportedly private pressure from his lackey Attorney General William Barr, the report instead faults Comey for trying to do something about it.
Comey may well be guilty of retaining memos that constitute official records. But to make that case, the inspector general would first have to establish that it is part of the FBI director’s official duties to let the president interfere in ongoing investigations. Needless to say, it has not done that.
Instead, the report provides compelling proof that Comey is a hypocrite and a grand-stander, while dodging the critical question of what the Justice Department can do in the face of the president’s ongoing efforts to dismantle the protections on its investigative integrity.