Amid a thicket of highly debatable assertions, attorney Emmet Flood makes one point in his recent letter to Attorney General William Barr that is almost indisputably correct and important.
Flood, a special counsel to President Trump, complained pointedly that former FBI Director James Comey, upon being fired from the FBI, leaked “confidential information” to the press via a third party “for the proclaimed purpose of prompting a criminal investigation” involving President Trump. And Comey succeeded in this: His leak led almost directly to the appointment of special counsel Robert Mueller. It wasn’t the only factor in necessitating the appointment, but it certainly was a major precipitating factor.
“Not so long ago,” Flood wrote to Barr, “the idea that a law enforcement official might provide the press with confidential governmental information” for such a purpose “would have troubled Americans of all political persuasions. … That the head of our country’s top law enforcement agency has actually done so to the President of the United States should frighten every friend of individual liberty.”
On the level of normative ethics, if not law, Flood is right.
The orally leaked memos in question were not classified, but they were otherwise privileged. Sen. Susan Collins, R-Maine, said with some justification that “if it is a government work product, it belongs to the FBI and not to him as a private citizen. I think a better way would have been to give it to [a committee of Congress].”
Law professor Jonathan Turley put a finer point on it.
“There was a great deal wrong with their release, and Comey likely knew it,” Turley wrote in an op-ed published in the Hill. “Comey’s position would effectively gut a host of federal rules and regulations. He is suggesting that any federal employee effectively owns documents created during federal employment in relation to an ongoing investigation so long as they address the information to themselves.”
This sort of monkeying with ordinary procedure was a Comey trademark. As a Justice Department inspector general report concluded last June, Comey’s bizarre public announcement of a “no charge” decision against Hillary Clinton for the former secretary of state’s misuse of emails, his sudden announcement he was reopening the investigation, and then his final announcement that it was closed were “inconsistent with [Justice] Department policy and violated longstanding Department practice and protocol.”
Oddly enough, the combined effect of those three unwarranted actions by Comey probably helped rather than hurt Trump’s election chances. Then, as if to atone for those errors — and probably for revenge against Trump for firing him — Comey pulled the charade with the leak of his own memos. This leak thus amounted to misdeed upon misdeed upon misdeed. The end result was both to force appointment of a special counsel and to send Trump into a tizzy.
Trump’s tizzy caused him to come perilously close to obstructing justice in a way he had not done before Comey’s leaks. Even if it was Trump’s fault for taking the bait, Flood’s complaint bears repeating: What Comey did deliberately to catalyze a presidential scandal “should frighten every friend of individual liberty.”
Even Trump’s harshest critics should recognize how wrong Comey was to try to precipitate a national near-crisis.
