The Department of Justice recently made a choice not to prosecute former FBI Director James Comey for allegedly leaking classified information. This did not go over well with many conservatives. On its face, the decision appears to be something of a double standard, but it may have been the right one. It certainly does not mean that Comey is altogether in the clear.
The Justice Department’s Inspector General Michael Horowitz had referred the former Bureau head for possible criminal prosecution over the leaking of memos Comey created after conversations with President Trump. This was part of the IG’s investigation into possible misconduct by the FBI during its counterintelligence operation that targeted the president’s 2016 election campaign. Since IG Horowitz has not yet released his final report, the facts are not fully known.
The Hill’s John Solomon has reported extensively on the Russian collusion story. According to Solomon’s sources, Comey was referred to the DOJ for possibly leaking classified information and also for lack of candor. A term favored by the DOJ, lack of candor means lying to, or withholding information from, investigators.
Lack of Candor
There is no dispute over the fact that Comey did send at least one memo to an associate with instructions to disclose its contents to the media. The former Bureau chief has already admitted to the disclosure, saying that he had hoped it would spur the appointment of a special counsel to investigate Trump’s alleged collusion with Russian officials. A special counsel was appointed, of course, and he found insufficient evidence – in fact, no evidence at all – of such a conspiracy.
The points of contention in the Comey matter are whether there was intent to commit a crime and whether the leaked memos – if more than one was leaked – contained classified information. Reports suggest that at least two of these memos were retroactively marked “confidential,” which is the lowest level of classification.
That Comey is guilty of lacking candor seems to be less in doubt. When agents arrived at his house to examine the memos, their former boss did not disclose the fact that he had already provided at least one of them to an associate outside the federal government.
The Justice Department – now sensitive to accusations of political bias – may have taken the more prudent course of action in deciding not to prosecute. Charging Comey over these memos would certainly have been portrayed by Trump’s opponents as a petty act of revenge against the former director, who has been a vocal critic of the president.
Carefully Crafted Reputation in Question
In terms of reputation, though, Comey has been irrevocably damaged. The man has carefully fostered a public reputation for being the very paragon of ethical behavior and patriotism. Obviously, this is nonsense; he first mishandled the Clinton email investigation then made notes about private conversations with the president and fed those notes to the media after he was fired. The illegality of that may be in dispute, but the unethical nature of the disclosure is not. Additionally, the senior ranks of the FBI became highly politicized on his watch, as has been proven by the Strzok-Page text message scandal and the firing of Comey’s number two, Andrew McCabe, who also lied to federal investigators.
It would seem the Justice Department has unfinished business with Comey. The much-anticipated inspector general’s report will likely have major repercussions, and the DOJ is also investigating the murky origins of the Russia conspiracy theory. Attorney General William Barr is being careful not to give anyone the impression that he is acting as Trump’s personal prosecutor, but he also has a duty to ensure that the whole, sordid Russia affair does not get swept under the rug.
While Comey may have escaped prosecution on this occasion, there has been a lot of questionable conduct on the part of various government officials – and their associates outside of government – over the past three years. If no one faces any criminal charges, the DOJ’s reputation – such as it is – will remain under a cloud for a very long time.
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