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James Comey's next reckoning is imminent — this time for leaking
The Justice Department's chief watchdog is preparing a damning report on James Comey's conduct in his final days as FBI director that likely will conclude he leaked classified information and showed a lack of candor after his own agency began looking into his feud with President Trump over the Russia probe.
Inspector General (IG) Michael Horowitz's team referred Comey for possible prosecution under the classified information protection laws, but Department of Justice (DOJ) prosecutors working for Attorney General William Barr reportedly have decided to decline prosecution - a decision that's likely to upset Comey's conservative critics.
Prosecutors found the IG's findings compelling but decided not to bring charges because they did not believe they had enough evidence of Comey's intent to violate the law, according to multiple sources.
The concerns stem from the fact that one memo that Comey leaked to a friend specifically to be published by the media - as he admitted in congressional testimony - contained information classified at the lowest level of "confidential," and that classification was made by the FBI after Comey had transmitted the information, the sources said.
Although a technical violation, the DOJ did not want to "make its first case against the Russia investigators with such thin margins and look petty and vindictive," a source told me, explaining the DOJ's rationale.
But Comey and others inside the FBI and the DOJ during his tenure still face legal jeopardy in ongoing probes by the IG and Barr-appointed special prosecutor John Durham. Those investigations are focused on the origins of the Russia investigation that included a Foreign Intelligence Surveillance Act (FISA) warrant targeting the Trump campaign at the end of the 2016 election, the source said.
"There are significant issues emerging with how the FISA was handled and other conduct in the investigation, and everyone involved remains under scrutiny," a second source said.
Patrick Fitzgerald and Daniel Richman, two of Comey's lawyers, and Keith Urbahn, his spokesman, did not return repeated calls and emails seeking comment.
The lack of prosecution is certain to demoralize some conservatives, who long have called for Comey's head. But the IG report, set to be released within the next few weeks, likely will provide significant condemnations of Comey's conduct, sources tell me.
While they cautioned that the IG's final report won't be complete until it gets feedback from Comey's lawyers in the next few days, it is expected to conclude that the former FBI director improperly took with him memos that were FBI property when he was fired, transmitted classified information via an insecure email account, and shared some of the memos with his private lawyers. Some of the Comey memos were classified up to the "secret" level, but the FBI has not disclosed whether those were shared with his lawyers like the classified confidential memo was.
The memos, which mostly recount Comey's interactions with Trump in the Russia case and include information about foreign leaders, were sensitive enough to require government officials to send a professional "scrub team" to a Comey lawyer's office to ensure all classified information was deleted, sources previously told me.
In addition, the IG is likely to find that Comey engaged in a lack of candor when FBI agents came to retrieve the classified memos in his possession, failing to tell the interviewing agent that he had forwarded some of the sensitive memos by email, according to sources familiar with the probe.
Documents released Thursday by the FBI to the conservative group Judicial Watch support that conclusion, showing the FBI report on its meeting with Comey at his home to recover the memos made no mention that the ex-director had forwarded the memos on to others.
The revelations are likely to dent Comey's carefully manicured image as a law-and-order FBI director who was fired for standing up to Trump.
The IG concluded in prior investigations that Comey's firing was not driven by Trump's fears about the Russia investigation ruining his presidency but, rather, by DOJ concerns about Comey's performance in the Hillary Clinton email probe. Horowitz concluded that Comey wrongly "usurped" the authority of the attorney general when, on July 5, 2016, he announced he would not seek criminal charges against Clinton for transmitting classified information - some of it top secret - on her insecure private email server.
That IG report also chided Comey for criticizing Clinton's email practices as reckless without filing charges and for improperly announcing the reopening of the email probe in late October 2016, just a few weeks before Election Day when Clinton and Trump were locked in a tight race.
Ironically, Comey's decision not to charge Clinton for violating the Espionage Act for mishandling classified information on her email server mirrors the same rationale that Barr's DOJ applied in declining prosecution of him: a lack of evidence of intent.
That won't be lost on conservatives, who almost certainly will dislike the DOJ's Comey decision.
But the IG report, at least, reaffirms what has become painfully clear to Americans the past two years: Comey entered the FBI chief's job with a reputation for excellence but ran a bureau that suffered from ineptitude, political shenanigans, leaking and significant human failings, all of which sharply contrast with the morality lectures he's become famous for frequently offering since he was fired.
John Solomon is an award-winning investigative journalist whose work over the years has exposed U.S. and FBI intelligence failures before the Sept. 11 attacks, federal scientists' misuse of foster children and veterans in drug experiments, and numerous cases of political corruption. He serves as an investigative columnist and executive vice president for video at The Hill. Follow him on Twitter @jsolomonReports.