President Donald Trump’s conservative media allies are attacking former FBI Director James Comey and accusing him of wrongdoing for writing and keeping a memo about a February meeting with Trump. The memo reportedly revealed that Trump asked Comey to drop an investigation into former national security adviser Mike Flynn. Despite the outrage aimed at Comey by conservative media figures for not divulging the memo earlier, experts have explained that doing so could have interfered with the FBI’s investigation.
Comey Memo Reportedly Said Trump Urged Him To Drop Flynn Investigation
NY Times: “President Trump Asked The F.B.I. Director, James B. Comey, To Shut Down The Federal Investigation Into” Former National Security Adviser Michael Flynn. The New York Times reported on May 16 that then-FBI Director James Comey wrote a memo after a meeting with President Donald Trump in February stating that the president asked Comey to end the investigation into Trump’s former national security adviser, Michael Flynn:
President Trump asked the F.B.I. director, James B. Comey, to shut down the federal investigation into Mr. Trump’s former national security adviser, Michael T. Flynn, in an Oval Office meeting in February, according to a memo Mr. Comey wrote shortly after the meeting. “I hope you can let this go,” the president told Mr. Comey, according to the memo. The documentation of Mr. Trump’s request is the clearest evidence that the president has tried to directly influence the Justice Department and F.B.I. investigation into links between Mr. Trump’s associates and Russia. [The New York Times, 5/16/17]
Some Conservative Media Figures React By Calling Comey A Criminal, Complaining He Didn’t Report It Sooner
Fox Anchor Gregg Jarrett: If Comey Really Thought Trump Obstructed Justice, He’s A Criminal For Not Promptly Reporting It. In a May 16 op-ed published on Fox News’ website, anchor Gregg Jarrett concluded that if Comey felt Trump was actually obstructing justice, then Comey broke the law by not immediately reporting it:
Under the law, Comey is required to immediately inform the Department of Justice of any attempt to obstruct justice by any person, even the President of the United States. Failure to do so would result in criminal charges against Comey. (18 USC 4 and 28 USC 1361) He would also, upon sufficient proof, lose his license to practice law. So, if Comey believed Trump attempted to obstruct justice, did he comply with the law by reporting it to the DOJ? If not, it calls into question whether the events occurred as the Times reported it. Obstruction requires what’s called “specific intent” to interfere with a criminal case. If Comey concluded, however, that Trump’s language was vague, ambiguous or elliptical, then he has no duty under the law to report it because it does not rise to the level of specific intent. Thus, no crime. There is no evidence Comey ever alerted officials at the Justice Department, as he is duty-bound to do. Surely if he had, that incriminating information would have made its way to the public either by an indictment or, more likely, an investigation that could hardly be kept confidential in the intervening months.
But by writing a memo, Comey has put himself in a box. If he now accuses the President of obstruction, he places himself in legal jeopardy for failing to promptly and properly report it. If he says it was merely an uncomfortable conversation, he clears the president of wrongdoing and sullies his own image as a guy who attempted to smear the man who fired him. [FoxNews.com, 5/16/17]
CNN Contributor And Former Trump Campaign Communications Director Jason Miller: Comey “Had The Obligation To Step Forward” About Obstruction Complaints. Jason Miller, former communications director for the Trump campaign and now a CNN contributor, claimed Comey “had the obligation to step forward” about any obstruction of justice by Trump, and he said it was “weird and vindictive” that Comey had “this little diary.” From the May 16 edition of CNN’s Erin Burnett OutFront:
JASON MILLER: I think it is absolutely absurd to think that the president supposedly made such a comment or such a request to Director Comey and Director Comey sat on it for three months, and then after getting fired, magically reaches into his jacket and pulls out some memo that he wrote at the time. That is absolutely absurd. He would have had an obligation to step forward at the time and go and make that public, or at least to have brought it up when he briefed members of Congress. And I think there is something a little bit weird and a little bit vindictive on Director Comey's part, that there's this little diary, or, figuratively speaking, a diary where he is keeping every single note so he can try to come back and play gotcha games later on. I mean, the whole thing doesn't seem to make any sense. [CNN, Erin Burnett OutFront, 5/16/17]
Fox’s James Rosen: “It Seems Curious Why This Memo Would Only Be Surfacing Now.” Fox News chief Washington correspondent James Rosen questioned why Comey’s memo didn’t surface earlier. From the May 16 edition of Fox’s Special Report with Bret Baier:
JAMES ROSEN: If James Comey was so fastidious about updating the Congress every time there was some major break in these investigations that he had confirmed the FBI was involved with, it seems to me curious as to why this memo would only be surfacing now after he's been fired. Why wasn’t he apprising anyone of this apparent -- what he and his supporters obviously see as an apparent obstruction of justice by the president. Why wasn’t he apprising anyone of it in a more timely way? He sat on it since February. [Fox News, Special Report with Bret Baier, 5/16/17]
Fox’s Shannon Bream: “If This Is So Explosive, Why Didn’t Comey Raise It Back Then?” Fox anchor Shannon Bream also questioned the interpretation of the memo’s contents, saying, “If this is so explosive, why didn’t Comey raise it back then?” From the May 17 edition of Fox News’ America’s Newsroom:
SHANNON BREAM: There has been a secondary question there is if this is so explosive, why didn't Comey raise it back then? If it's something that you truly thought would rise to the level of obstruction, you wouldn't hide it, even if you memorialized it in this memo. And we understand the reporting is he shared it with a few other senior FBI officials, but specifically kept it away from the people doing the investigation. If it was thought to be such an explosive bombshell and potentially criminal in nature, would you have hidden it back then? [Fox News, America’s Newsroom, 5/17/17]
CNN Guest Matt Schlapp: Comey Keeping The Memo Secret Is “Alarming” And “Makes Him Look Worse.” American Conservative Union President Matt Schlapp said on CNN that he was alarmed Comey wrote memos about “instances of potential wrongdoing by the president,” saying that it made Comey look bad for not immediately taking action. From the May 17 edition of CNN’s New Day:
MATT SCHLAPP: I think it’s important to remember that the Trump White House has pushed back on the account in this memo and whether or not this memo exists, although reporters are saying it does exist. You put congressmen in a terrible position because they’re like wait a minute, we need to see this memo, if it exists, as well. I'll tell you, Alisyn, as someone who has been in the White House, to think that James Comey was writing down these instances of potential wrongdoing by the president or maybe other administration officials and just kind of keeping it in kind of his side drawer for the right moment, that's awfully alarming to me. That's kind of what J. Edgar Hoover used to do -- he used to keep files on everybody so he could bring it up at an opportune time. I don't want to make that charge of Jim Comey, but that's sure what this looks like.
I want to hear from him as well, I think we all do. But if this was wrongdoing, if people are charging that this is obstruction of justice, which I don’t know if it really is or not, why wouldn't the FBI director immediately take action on that? If anything, I think this actually makes Jim Comey look even worse after he's lurched left, lurched right, played this strange role in the presidential campaign. It seems uneven to me. [CNN, New Day, 5/17/17]
National Security Legal Expert Debunks “Bogus” Jarrett Argument
Lawfare: “Nonsense” To Say Comey Is In “Legal Jeopardy.” Lawfare’s Robert Chesney debunked Jarrett’s claim that Comey may have broken the law, because his decision not to immediately report that Trump had asked him to abandon the Flynn investigation does not constitute “affirmative steps to conceal” a suspected felony. Chesney also argued that the most likely recipient of a report of Trump’s actions “would be … the FBI” and Comey himself “was, of course, FBI Director at all relevant times, and deeply engaged” with the incident he would have reported to himself:
Let's start with the first of two statutes Jarrett cites: 18 USC 4. This is the general “misprision of felony” statute. It's one of the oldest crimes in the federal criminal code, I believe dating back to 1790. In its current form it provides:
Under the law, Comey is required to immediately inform the Department of Justice of any attempt to obstruct justice by any person, even the President of the United States. Failure to do so would result in criminal charges against Comey. (18 USC 4 and 28 USC 1361) He would also, upon sufficient proof, lose his license to practice law.
There are two obvious reasons why this statute does not apply to Comey's situation.
First, note the word “concealment.” This is a stand-alone element of the offense, not just a superfluous verbal flourish restating the point that one must report. Just look at any federal pattern jury instruction: affirmative steps to conceal are required, not just the fact of failing to report the crime. See, e.g., Lancey v. United States, 356 F.2d 407, 4010 (9th Cir. 1966) (silence alone, without affirmative act of concealment, is insufficient). There is no basis for claiming that Jim Comey took affirmative steps to conceal any alleged obstruction by Donald Trump. To argue that Comey somehow affirmatively concealed something by taking care with who got to see his memo entirely collapses this distinction, and would extend liability for misprision to just about every criminal investigator and prosecutor in this country (given how routine it is for both investigators and prosecutors to create but limit circulation of documents with evidentiary content in this sense).
Second, and more fundamentally, Jarrett's op-ed implies that the obligation to report runs specifically to Justice Department prosecutors. That's not what the statute says, however, and of course the more obvious recipients for any such notificiations (sic) would be...the FBI. Jim Comey was, of course, FBI Director at all relevant times, and deeply engaged in supervision of existing, related criminal (and probably also counterintelligence) investigations. It's more than a stretch to suggest that the misprision statute somehow creates a “two-person” requirement for knowledge of possible federal crimes, such that it is not enough for one FBI person to be aware of the possible criminal behavior. A “crooked cop” scenario would of course be different, but no one is alleging (nor could they) that Jim Comey was in cahoots with a plan to obstruct the Flynn investigation.
Third, even if misprision concerns required Jim Comey to convey knowledge of Trump's actions to others at FBI, it remains quite possible that he did exactly this.
Well, enough about misprision. It's a bogus argument. What about the other statute Jarrett cites?
I'm at a loss here. The statute—28 USC 1361—provides federal courts with jurisdiction to issue writs of mandamus. All lawyers in the U.S. will recall the writ of mandamus from good ol' Marbury v. Madison: it is a name for an order that obliges a government official to perform some non-discretionary act. Needless to say this is not a criminal law at all, and its application here is a bit of a mystery to me. I suppose he has in mind some notion that the FBI Director has a non-discretionary obligation to contact DOJ prosecutors when there is evidence of obstruction or any other crime, posthaste, and thus one might in theory follow the path of William Marbury, filing a petition for a writ of mandamus to make the Director do so. You can see that this makes no sense in this context. [Lawfare, 5/17/17]
Experts Explain That Sharing The Memo Could Have Interfered With The Investigation
On CNN, Former NYPD Internal Affairs Official Explains That By Widely Sharing The Memo, Comey Could Have Interfered With The Investigation. On CNN, Walter Mack, a former federal prosecutor and former deputy commissioner of internal affairs at the New York Police Department, explained that Comey may not have shared the memo because “his position was that he had a group of hard-working agents and assessors, evaluators working on” the investigation, and the memo “would indelibly impact the brains of those investigators working on the case.” From the May 17 edition of CNN’s Wolf:
JIM SCIUTTO (HOST): Now, you've heard Republicans, a familiar talking point in the last 24 hours has been well, if he was so concerned about the meeting, why didn't he immediately share the contents of this memo?
WALTER MACK: Well, I think that's a judgment call that you have to give the benefit of the doubt to Jim Comey because as I -- and I read the press; I'm a newspaper news person -- and I think his position was that he had a group of hard-working agents and assessors, evaluators working on it and if, in fact, the memo says what, in fact, it's purported to say, this would indelibly impact the brains of those investigators working on the case. It might cause them to react in a negative way. [CNN, Wolf, 5/17/17]
On Fox, Former DOJ Lawyer Notes That Senior DOJ Officials Comey Might Have Reported To Were Compromised And That Widely Sharing The Memo Could Have Interfered With The Investigation. On Fox, Michael Zeldin, a former federal prosecutor and former Department of Justice lawyer, pointed out that Comey may not have had senior officials to share his memo with because, “with respect to going to the Department of Justice itself, you've got a recused attorney general, you've got a deputy attorney general who perhaps is a witness in this case.” Zeldin added that Comey may not have wanted “to interfere with the ongoing investigation ... by surfacing this.” From the May 17 edition of Fox News’ America’s News HQ:
MELISSA FRANCIS (HOST): Michael, did [former FBI Director James] Comey have an obligation, if he felt like it was obstruction, to go to an ethics official, to go to Justice, to say or do something?
MICHAEL ZELDIN: Well, a couple of things. First is, he said that he went to senior FBI officials. We don't know who those officials are, so we don't know whether he went to an ethics officer or didn't go to an ethics officer. With respect to going to the Department of Justice itself, you've got a recused attorney general, you've got a deputy attorney general who perhaps is a witness in this case because of his prior memo alleging that the firing was based on poor Hillary Clinton's situation. So it may be that he says, “I have no one to go to in Justice. I went to senior people in the FBI, names to be disclosed at some point.”
ZELDIN: “And I didn't want to interfere with the ongoing investigation of the agents of these issues by surfacing this,” which is an important factor when you're in the middle of an important investigation. To demoralize your agents in some way by revealing this is a point that has to be taken into account. [Fox News, America’s News HQ, 5/17/17]
On MSNBC, Former House Judiciary Committee Member And Former FBI Special Agent Explain Justice Department Was “Tainted” By AG Sessions’ Recusal And Deputy AG Yates’ Firing. Former Democratic Congresswoman Elizabeth Holtzman, who was a member of the House Judiciary Committee during Watergate, rebutted Republican claims that Comey may have broken the law by not promptly reporting possible obstruction of justice by the president, noting that Attorney General Jeff Sessions “himself was tainted” because he “had to recuse himself from anything to do with the Russia investigation.” Former FBI special agent Michael German further added that Deputy Attorney General Sally Yates had been fired and her replacement had not yet been sworn in, so Comey didn’t really have any top Justice Department officials to report to. From the May 17 edition of MSNBC’s MSNBC Live:
CHRIS JANSING (HOST): So making a turn, that the crime was not committed potentially by someone in the White House or the president himself, but by the FBI director. What do you make of that?
ELIZABETH HOLTZMAN: First of all, that's just nonsense. The first issue is did the president commit a crime, and did the president do something wrong? And if the FBI director did something wrong, that doesn't wipe out or erase what the president does. We have to deal with the presidential misconduct. It is not -- you said before, the president is different from us. The president is under the law, just as you are, and just as I am. We don't have a dual system of justice in this country. The minute we have that, we're on the way to a dictatorship. So the president has to be held accountable here.
The second thing is, if Comey -- Comey was in a tough spot. First of all, he recorded what happened. Should he have reported it? Who was he going to report it to? We know that Sessions himself was tainted. He had to recuse himself from anything to do with the Russia investigation. The Republicans in the House and the Senate who control the committees are not exactly receptive to doing anything about the president. So I think there could be some justification for what Comey was doing. He had a serious intelligence investigation, counterintelligence investigation. Was there collusion with the Russian government? Are they still pressuring White House officials, including the president of the United States? He needed to keep the integrity of that investigation going. That's the most important thing. He felt, maybe improperly, that he could preserve the integrity of the investigation. But that’s what I believe his motives were.
JANSING: Is that how you see it, Michael?
MICHAEL GERMAN: You also have to understand that the deputy attorney general had been fired, and there was an acting deputy attorney general, and a new deputy attorney general had not yet been appointed and had sworn in. So I agree that who you report this to is a little muddled here. [MSNBC, MSNBC Live, 5/17/17]
This post has been updated.