WaPo, check your facts on White House (and my) words on Comey

WaPo, check your facts on White House (and my) words on Comey
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I recently wrote a column about the lack of objectivity in the media in the coverage of the Russian investigation, and specifically, the conduct of former FBI director James Comey. I have raised professional and legal concerns over Comey’s removal of memos from the U.S. Justice Department and his leaking of at least one memo to the media. White House press secretary Sarah Huckabee this week raised these same concerns in a press conference. As if on cue, the Washington Post assigned her two “Pinocchios” for saying that Comey’s actions “were improper and likely could have been illegal.”

However, the Post awarded two such findings after concluding that Comey did in fact violate FBI rules and regulations. While I have strongly disagreed with the White House attacks on the media, I believe that this is a prototypical example of the bias in reporting on these controversies. As I have repeatedly said, none of this means that Comey should be charged criminally, but it is important that we recognize the underlying violations that he committed in this controversy.

In her Sept. 12 press briefing, Sanders said, “I think there is no secret Comey, by his own self-admission, leaked privileged government information. Weeks before President Trump fired him, Comey testified that an FBI agent engaged in the same practice. They face serious repercussions. I think he set his own stage for himself on that front. His actions were improper and likely could have been illegal.”

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Sanders later repeated a litany of laws and regulations to support this claim from FBI employment agreements to nondisclosure rules to the Privacy Act of 1974. Every line of that statement is unassailably true. The FBI has already indicated that these were FBI documents and nonpartisan Justice Department officials has indicated that they should have been treated as privileged or confidential and not disclosed. Moreover, as discussed below, even the Post recognizes that they “could have been illegal” depending on the outcome of any investigation.

The Post begins its analysis by saying that Sanders appears to be relying on my past writings but then omits key portions of that analysis in finding Sanders is being dishonest. Consider four of the more curious “findings” of the Post.

Post Premise #1: Comey violated FBI rules and regulations but it really does not matter

Perhaps the most bizarre aspect of the Post review is that it expressly confirms much of Sanders’s statement. For months, I have been disagreeing with experts who steadfastly denied that this information constitutes FBI material subject to bureau restrictions and control. Many have suggested that the memos are just Comey’s personal recollections like diary entries and fell outside of such regulations.

Just yesterday, I quoted the very expert relied upon by the Post in its fact-checking analysis to highlight this view. Brookings Institution fellow Susan Hennessey wrote, “It’s hard to even understand the argument for how Jim Comey’s memory about his conversation with the president qualifies as a record, even if he jotted it down while in his office.” However, when called by the Post, Hennessey is quoted as saying that she “agrees that Comey probably violated his employment agreement. ‘But so what? The remedy is the employer fires you.’” If the memos were not FBI records, why would it have violated his employment agreement?

Hennessey is dismissive of any significant to Comey violating his signed obligation as a former FBI employee and the underlying FBI regulations. Such violations are, at a minimum, unethical and violations of the core rules governing the handling of FBI material. So what? Comey not only agreed to but enforced against others as director. However, the Post joins in dismissing any importance to Comey acting unethically by claiming, “Comey probably violated his employment agreement, but he was already out of the job.”

This ignores that fact that Sanders was saying he violated federal rules and regulations, which the Post indicates is true. Moreover, the Post was recognizing that Comey’s own statements about his proper handling of this information was likely false, and he committed an act that would, at a minimum, have led to his former subordinates being fired.

Post Premise #2: None of the memos taken by Comey were classified because he said they were not

Despite the arguments that the memos were not FBI material, the bureau has confirmed that not only did Comey take FBI material, but four of the seven memos were classified. The Post does acknowledge that some of the memos may have been classified. It then, however, claimed that Sanders spoke falsely by suggesting that Comey’s actions “could have” violated federal law on this and other grounds. Why? Because Comey said that they were not classified.

The Post goes at length in recounting how Comey acknowledged that some of the memos were classified, but that he said that he “made sure that one particular memo was unclassified, and this is the memo that Comey has acknowledged giving to a friend with the express purpose of it getting into the media.” The Post, however, ignores a few glaring problems.

First, news accounts indicate that Comey may have taken multiple memos from the FBI. Moreover, Columbia Professor Daniel Richman reportedly turned over other material to the FBI from Comey. If they included any of the four classified memos, he illegally removed classified material from the FBI. The other three memos or related material may also be classified as confidential or privileged by the FBI according to reports. Second, we still do not know what information was disclosed or memos released to third parties. Third, Comey does not get to decide that question unilaterally.

The reason that we have the disclosure provisions for FBI information, which the Post itself admits Comey likely violated, is for the review of such material to determine their confidentiality or classification. Given his violation of the FBI rules governing such material, there is a good-faith concern that he “could have” violated federal law. While the Post accuses Sanders of making assumptions, it does precisely that in dismissing these concerns by saying that “in fact he leaked a single memo that he has described as unclassified.”

First, Comey described the memos as unclassified. We do not know who was shown any of the other memos by Comey and his description of the unclassified memo is immaterial. Since we know he improperly removed and disclosed FBI information, it is not mere speculation to believe that classified information could have been removed or released. The Post said that whether “it contained privileged information has not been proven.” But as I noted in prior columns, the Justice Department did say that the information was FBI information and all such information is treated as confidential or privileged until released after review.

Moreover, Deputy Attorney General Rod Rosenstein directly contradicted Comey in saying that “when we have memoranda about our ongoing matters, we have an obligation to keep that confidential.” Finally, conversations about an ongoing major investigation between an FBI Director and the President of the United States in the Oval Office are normally treated as presumptively privileged until such privileges are waived by the White House.

Notably, the Post has not shown the same assumptions of legality with other past officials accused of mishandling or disclosure either classified or privileged information. The Post suggested that Rep. Devin Nunes (R-Calif.) may have released classified information by discussing the investigation with the media, but does not appear willing to allow others to raise the same concerns with regard to Comey.

Likewise, the Post wrote exclusively on the need and basis the prosecution of Gen. David Petraeus for mishandling sensitive and classified information. It was not deemed innuendo to suggest that there was a legitimate basis for investigation of possible violations. Other stories show the same willingness to consider possible violations as with the Post’s editorial and journalistic columns on the release of classified information by Scooter Libby, former aide to Vice President Dick Cheney. Yet, Comey’s admitted violation in removing FBI material is considered pure innuendo by the Post.

Post Premise #3: The Privacy Act is irrelevant to Comey because it does not cover this type of information

While not the focus of my prior analysis of the Comey violations, I do mention that such disclosures can violate the Privacy Act, which is incorporated in various FBI agreements and employment documents. The Post however says that this “does not appear to make much sense. The Privacy Act is mostly concerned about the collection and dissemination of information about people that is maintained in government files, such as personnel records or financial and medical information.”

The Post then cites one such Privacy Act reference in the FBI’s National Name Check Program. The Post, however, misses the point. The law prohibits “any record which is contained in a system of records by any means of communication to any person, or to another agency” unless one of a series of enumerated exceptions. (A record is defined as “any item, collection, or grouping of information about an individual” including but not limited to information on a person’s criminal history or identifying information.)

Comey violated FBI procedures for the release of this FBI information. We do not know what information was in the memos because Comey never allowed them to be reviewed before taking them. Moreover, Comey admits that he spoke to Trump about a major investigation and refused to publicly say that he was not under investigation because he thought he could become a target of the investigation. Thus, he was memorializing a series of field meetings with a potential target of a federal investigation.

As I have stated, this is not the most serious potential violation but it is a law referenced in the rules violated by Comey in his removal and release of FBI information. The FBI website warns employees that “dissemination of FBI information is made strictly in accordance with provisions of the Privacy Act” and “FBI policy and procedures regarding discretionary release of information in accordance with the Privacy Act.”

On a related note, the Post misrepresents my prior statement that Comey’s actions conflicts with his ethical obligations as a public official and as a lawyer. The Post stated that while “Turley referred to a duty to a “former represented person” (presumably the president), Comey never acted as an attorney for the federal government and no client-attorney privilege was involved.” The quote is presented in a remarkably misleading way. My column actually states “there are also ethical and departmental rules against the use of material to damage a former represented person or individual or firm related to prior representation.”

The column then goes on to explain that “Comey is also subject to bar rules on releasing information inimical to the interests of his former employer. For example, under professional rules, lawyers need to secure authority to release information that reveal a confidence or secret of the lawyer’s client, use a confidence or secret of the lawyer’s client to the disadvantage of the client, or use a confidence or secret of the lawyer’s client for the advantage of the lawyer or of a third person.

The point is that even government lawyers have ethical obligations to their former employers, in this case the FBI. Comey violated that obligation by (as the Post accepts) ignoring the rules governing the release of potentially classified or confidential or privileged information. The Post also omits that I have expressly denied representational claim in published columns.

Post Premise #4: Sanders is not entitled to judgment calls about the controversy but Comey is

The final premise sums up the problem with all of the prior premises of the Post. At the end of its analysis, one would have expected the Post to say simply that this is a good-faith but contested view of Comey’s conduct. Indeed, the Post admits that “to some extent, the level of possible violations is a judgment call, open to legal interpretation, making it problematic to assign a Pinocchio rating.” That is where it could have easily ended the analysis, even with the omissions and contradictions discussed above.

Instead, the Post went ahead and made precisely that judgment call in favor of Comey by saying “at the very least, Sanders’s spin is worthy of two Pinocchios for its innuendo and incomplete or inaccurate information.” So, the Post insists that no one can reasonably cannot say that Comey may have removed or released either confidential or classified FBI information in violation of federal law. Why? Presumably because it is Comey’s judgment call and by extension the Post’s judgment call. However, Sanders saying that Comey “could have” violated federal law was simply “innuendo.”

The Post concludes that the memos were, despite Comey’s denial, FBI material and that he violated FBI rules in removing and releasing such information. It also accepts that employees under Comey as director could well have been fired for such violations. It also agrees that the memos might have been either classified or privileged, even though there has been no final determination. Regardless, the Post awarded two Pinocchios for Sanders stating that Comey’s actions were “improper and likely could have been illegal.”

I have to give the Post two “Blue Fairies.” (I do not want to steal the Post’s Pinocchio signature motif so the Blue Fairy in the Disney story will do). After all, it was the Blue Fairy who said, “A lie keeps growing and growing until it's as clear as the nose on your face.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.