An epidemic of constitutional illiteracy threatens our nation
Bad news for the GOP: 'Comey memos' leak is 'Nunes memo' redux
You know that feeling of subtle satisfaction you get when a person trying to stick it to someone else ends up hurting himself instead? That's how I felt when House Republicans leaked the Comey memos, apparently before analyzing them and adjusting their strategy. As a result, House Republicans and President Trump, yet again, have readied, fired and aimed in their assault on phantom political corruption in the FBI. They harmed themselves and no one else. This was Nunes Memo redux.
Although I am a Republican, I still recognize that Trump and the House Republicans are the wrongdoers in this saga. Their strategy has resorted to political carpet-bombing. It hasn't worked out for them.
Until the leak of the memos, former FBI Director James Comey was struggling in interviews on his book tour. Interviewers had been skeptical about his playing Hamlet on his handling of the Hillary Clinton email fiasco. They seemed fixated on his mention of Trump's hand size, skin color and hair, so much so that Comey actually told ABC's "The View" he regretted publishing that section of his week-old book:
"If I had it to do over again, I wouldn't put that paragraph in."
Reporters and interviewers seemed frustrated that the substance and details in his book were stale, and that he seemed to back-peddle on some assertions. Comey seemed to grow more uncomfortable with each interview, culminating in his awkward talk with Jake Tapper on CNN.
Suddenly, Comey received a gift out of the blue. House Republicans leaked the memos they had just received from the Justice Department, throwing shade on the book tour. Upon releasing them, they took a victory lap proclaiming the memos showed there was no collusion with Russia and no obstruction of justice. Meanwhile, interviewers of Comey began focusing on the substance of the memos and the consistency of his testimony over the months. Comey became more engaged and comfortable with his interview responses, and he soon found his stride.
The inflection point occurred between the Tapper interview and Rachel Maddow's show on MSNBC. The memos were leaked during her show and they scrambled to conduct Q&A, which worked well despite the suddenness. All eyes and ears shifted to the substance of the newly released documents, and the hands-face-hair thing was a distant memory. So compelling became the discussion that it bled into the next show. Even the "Steele dossier" became a rejuvenated, sober issue again. The House Republicans had once again lit the fuse that exploded in their hands.
Trump and House Republicans have concocted a campaign-like strategy, devoid of relevant facts, to protect Trump's achilles heel - his and his staffs' apparent collusion with the Russians and then his own apparent obstruction of justice. Every time the Republican lawmakers have sought to protect him, they have missed the mark, claimed they hit it, and assumed they gave him cover to proclaim an unentitled victory.
My reading of the Comey memos give them no entitled win. Comey was not looking for evidence of obstruction. He was living it. He was not investigating obstruction. He was a witness to it.
The comments by Comey about Trump wanting to give Michael Flynn a mulligan is more powerful in the memos, probably because the book is more studious and dull. But the memos served obstruction on a platter to special counsel Mueller. So did Comey's firing. Trump and House Republicans barked that the memos showed no obstruction. Wrong again. Comey wasn't looking for obstruction, obstruction found him. That's the lesson from the Comey memos.
Meanwhile, the Trump/House obsession with finding FBI corruption is equally elusive to them. Their fixation has been that behind every FBI cubicle is a scheming Democrat. As the sole practitioner of FBI oversight while I was in Congress, I never found a scheming Democrat that caused anything but dismay if he or she uttered their party affiliation. I worked every major blundered case under Director Louie Freeh, including Waco, Ruby Ridge, Richard Jewell, the FBI crime lab scandal, Chinese espionage and Wen Ho Lee, TWA Flight 800, and many more. But no, I never found a scheming Democrat behind a cubicle.
Their latest attempt to allege phantom FBI corruption was in the Andrew McCabe case, arguing McCabe was political and that he and Comey were in cahoots to stop Trump. Both assertions have proven unfounded so far. First, the recent inspector general report showed that McCabe's motive in a leak to the press was not political but self-serving. Second, as revealed by a Daily Beast report, Comey ordered the investigation that landed McCabe in hot water. No political motive, no FBI corruption and collusion.
The full inspector general report will come out soon and may yet show political motives and corrupt collusion with Comey and other senior bureau managers. But if Republicans want their accusations to be credible, they should wait until that report is released and such findings are detailed. Otherwise they will continue committing unforced errors that will drive them off the court.
Reports have surfaced that the inspector general made a criminal referral in the McCabe case to the Justice Department. Some McCabe detractors thought this is a big deal. Those reports caused public confusion, including among reporters. The referral is routine. Inspector generals, upon investigating noncriminal matters, often refer their cases to the Justice Department in case the DOJ should have an interest in pursuing a crime. The unspoken reason for such a referral is so the DOJ, if they have no interest, will produce a declination memo for the inspector general's record. That way, if some unscrupulous member of Congress inquires if the inspector general pursued a criminal case, the inspector general can produce the memo and be off the hook.
As for the legal implications, the referral involves instances of "lack of candor" by McCabe, which is not a crime. It's an administrative standard.
To be sure, I spoke with an attorney, David Colapinto, whose law firm has taken more significant FBI employee cases than any other. I worked with Colapinto at the National Whistleblower Center. On the question of prosecuting this referral, he said:
"They would have to charge him with violating 18 USC 1001 (lying), assuming there was a law enforcement investigator in the room when he was asked the questions. If he willfully lied during the interview with OIG, he could face criminal liability. I don't think that happens often, but people aren't usually fired 26 hours ahead of their retirement date either."
So far, the president and Republican-led House have bellowed out a great talk game with little to back it up. Their political strategy of shaming the FBI isn't moored to a foundation of facts and credibility. If they persist with the unforced errors, it will be game, set, match, the showers for the wrongdoers.
Kris Kolesnik is a 34 year veteran of federal government oversight. He spent 19 years as senior counselor and director of investigations for Sen. Charles Grassley. Kolesnik then became executive director of the National Whistleblower Center. Finally, he spent 10 years working with the Department of the Interior's Office of Inspector General as the associate inspector general for external affairs.