The testimony of James Comey proved long on atmospherics and short on ethics. While many were riveted by Comey’s discussion of his discomfort in meetings with President Trump, most seemed to miss the fact that Comey was describing his own conduct in strikingly unethical terms. The greatest irony is that Trump succeeded in baiting Comey to a degree that even Trump could not have imagined. After calling Comey a “showboat” and poor director, Comey proceeded to commit an unethical and unprofessional act in leaking damaging memos against Trump.
Comey described a series of ethical challenges during his term as FBI director. Yet, he almost uniformly avoided taking a firm stand in support of the professional standards of the FBI. During the Obama administration, U.S. Attorney General Loretta Lynch gave Comey a direct order to mislead the public by calling the ongoing investigation a mere “matter.” Rather than standing firm on the integrity of his department and refusing to adopt such a meaningless and misleading term, Comey yielded to Lynch while now claiming discomfort over carrying out the order.
When Trump allegedly asked for Comey to drop the investigation of Michael Flynn or pledge loyalty, Comey did not tell the president that he was engaging in wildly inappropriate conduct. He instead wrote a memo to file and told close aides. He now says that he wishes he had the courage or foresight to have taken a stand with the president.
However, the clearest violation came in the days following his termination. Comey admits that he gave the damaging memos to a friend at Columbia Law School with the full knowledge that the information would be given to the media. It was a particularly curious moment for a former director who was asked by the president to fight the leakers in the government. He proceeded in becoming one of the most consequential leakers against Trump.
Comey said that he took these actions days after his termination, when he said that he woke up in the middle of the night and realized suddenly that the memos could be used to contradict Trump. It was a bizarrely casual treatment of material that would be viewed by many as clearly FBI information. He did not confer with the FBI or the Justice Department. He did not ask for any classification review despite one of the parties described being the president of the United States. He simply sent the memos to a law professor to serve as a conduit to the media.
As a threshold matter, Comey asked a question with regard to Trump that he should now answer with regard to his own conduct. Comey asked why Trump would ask everyone to leave the Oval Office to speak with Comey unless he was doing something improper. Yet, Trump could ask why Comey would use a third party to leak these memos if they were his property and there was nothing improper in their public release.
In fact, there was a great deal wrong with their release, and Comey likely knew it. These were documents prepared on an FBI computer addressing a highly sensitive investigation on facts that he considered material to that investigation. Indeed, he conveyed that information confidentially to his top aides and later said that he wanted the information to be given to the special counsel because it was important to the investigation.
Many in the media have tried to spin this as not a “leak” because leaks by definition only involve classified information. That is entirely untrue as shown by history. Leaks involve the release of unauthorized information — not only classified information. Many of the most important leaks historically have involved pictures and facts not classified but embarrassing to a government. More importantly, federal regulations refer to unauthorized disclosures not just classified information.
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. FBI agents routinely write such memos in investigations. They are called 302s to memorialize field interviews or fact acquisitions. They are treated as FBI information.