It is still not entirely clear why the Department of Justice has so far declined to prosecute former FBI Director James Comey for his wilful infringement of DOJ and FBI policies and, quite possibly, of certain criminal statutes regarding the handling of classified documents. The release, August 29, of the DOJ Inspector General’s report on the matter does nothing to rationalize that decision. On the contrary, the report describes exactly why Comey is guilty.
The 79-page report is not the big one: It is not the report on the IG’s investigation of the FBI’s potential abuse of the Foreign Intelligence Surveillance Act (FISA) to spy on individuals associated with President Donald Trump’s 2016 presidential campaign. That report is still eagerly anticipated and will likely be made public sometime in October or November of 2019.
This was a separate report entitled: “Report of Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda.”
Between Trump’s election victory and Comey’s firing on May 9, 2017, the two men interacted directly on nine occasions. Comey recorded his version of seven of those interactions in separate memos, composed extemporaneously, immediately thereafter or the following day. None of these personal meetings or telephone conversations were social encounters: On each occasion, matters of state or FBI activities were discussed and, in each case, Comey was wearing his FBI director hat, so to speak.
The first point that should be understood, then, is that – according to DOJ and FBI regulations, as quoted in the IG report – any memorialization of these Trump-Comey conversations, in any form, automatically became the property of the United States government and an FBI work product. Comey made copies of each of his seven memos and, at various times, distributed them to a small circle of senior FBI officials through his then-chief of staff, James Rybicki.
Comey kept the original copies of four of these memos – referred to in the report as memos 2, 4, 6, and 7 – at home in his personal safe. Even after he was dismissed from his post by the president, he retained these copies and did not inform the FBI that he had them. In June of 2017, he provided copies of them to then-special counsel Robert Mueller. Before that, Comey had also provided copies of these memos to his personal attorneys without FBI authorization.
On January 27, 2017, Comey had a private dinner with President Trump during which – according to Comey – the president remarked that he needed and expected loyalty from the FBI official. Comey claims he responded that the president could always expect honesty from him. Apparently, Trump responded by saying that is what he wanted: “honest loyalty.” The FBI Director admits in his memo from this meeting (memo 2) that he and the president may have had different ideas about what “loyalty” meant.
Defining His Job According to Personal Opinion
Interestingly, Comey told the IG that he had not intended to create memos detailing his interactions with Trump until this meeting, though the FBI director had already created memo 1 following his first meeting with the president on January 6.
Comey told the IG that he decided to memorialize his conversations with the president because he felt that Trump was “fundamentally dishonest.” At this point, then, Comey decided to allow personal opinion to dictate his own future conduct and actions as FBI director.
Sometime in late January or early February of 2017, Comey had dinner with Daniel Richman, who was a personal friend later hired by Comey as one of his attorneys. During this dinner, the director recounted to Richman the “crazy story about the President wanting [Comey’s] loyalty.” On May 11, The New York Times published an article about this dinner.
Comey had been fired two days earlier, so it appears certain that Richman contacted The New York Times upon hearing of his friend’s dismissal or that Comey himself instructed Richman to leak the story to The Times. In May of 2017, Comey provided a separate copy of memo 4 to Richman with instructions to share the contents – though not the memo itself – with a reporter for The New York Times. The paper published an article based on memo 4 on May 16.
The Flynn Affair
Memo 4 recounted a one-on-one meeting with President Trump on February 14, 2017. According to Comey, Trump used the meeting to discuss the FBI investigation of former National Security Advisor, Gen. Michael Flynn. The Bureau was looking into Flynn’s contact with the Russian ambassador during the post-election White House transition. There was nothing illegal about this contact, though Flynn was later charged with lying to investigators for not accurately recounting the nature of a telephone conversation between himself and the ambassador.
Comey has claimed that, during this meeting with Trump, the president asked his FBI director if he could “see [his] way clear to letting this go, to letting Flynn go.” At this point, of course, Trump had already fired Flynn for misleading Vice President Pence about the Russian contact. The president was making the point to Comey, though, that Flynn had not done anything wrong in terms of speaking with the Russian ambassador: Individuals transitioning into high-level White House positions in a new administration are not barred from having contacts with foreign officials, and it is normal for them to do so.
According to Comey’s account, Trump had not put any pressure on the FBI official. He had not implied any adverse consequence for Comey if the Flynn investigation were pursued, nor was he ordering Comey to end the investigation or to ensure Flynn was not charged. The president, to any reasonable observer, seemed only to be expressing his belief that Flynn did not deserve to be treated as a criminal.
Consider the fact that Comey himself has not yet been charged with a crime or penalized in any way – other than being fired. Consider that Comey’s former number two, Andrew McCabe, has also not yet been charged – even though the IG determined that he had “lacked candor” with (lied to or misled) federal investigators on no less than four occasions. Consider also that neither Hillary Clinton nor any of her staff was charged with any crime despite multiple transgressions. In light of these events, it seems relatively innocuous that Trump would express to Comey his hope that Flynn would not face criminal charges.
FBI Documents or Personal Property?
Amazingly, Comey explained to investigators from the Office of the Inspector General (OIG) that he “considered Memos 2 through 7 to be his personal documents, rather than official FBI records.” This fact, in itself, shows that Comey had unilaterally made the inexplicable decision to view his contact with the president through a personal, rather than professional, lens. To him, FBI and DOJ regulations no longer applied since what he discussed with the president was now his business.
No other FBI officials interviewed by the OIG agreed with Comey’s view of his memos. All of them considered those memos to be FBI documents. According to the IG report, “Comey’s closest advisors used the words ‘surprised,’ ‘stunned,’ ‘shocked,’ and ‘disappointment’ to describe their reactions to learning what Comey had done.”
Where the former FBI director utterly fell short as a loyal (to his country) and trusted official, then, was his incredible hubris and sense of self-worth. Comey is clearly an almost unbelievably conceited and self-absorbed individual. In his handling of both the Clinton email investigation and the counterintelligence operation against Russian election interference – as well as his official meetings and conversations with the president – he took it upon himself to act as the ultimate judge of what was best for the FBI, for the country, and for himself. He flouted or circumvented certain regulations and protocols because he alone decided what needed to be done.
Perhaps only former CIA Director John Brennan or former Director of National Intelligence Jim Clapper surpass Comey as examples of senior government bureaucrats who consider themselves so brilliant, so patriotic, and so pure of heart that they are above the law. It is true, in fact, that Comey may eclipse those two in this regard. It seems abundantly clear that Comey – along with other senior FBI officials – considered himself a guardian of the country against a president he personally did not like.
If there were ever an individual whose conduct demonstrates how vital it is to hold government officials accountable, James Comey is that individual.