Lawfare Debunks Fox News' “Bogus Argument” That James Comey Broke The Law

Lawfare’s Robert Chesney, a legal expert on national security, debunked a claim from Fox News’ Gregg Jarrett that former FBI Director James Comey may have broken the law by not reporting that President Donald Trump pressured him to drop the FBI’s investigation of former national security adviser Michael Flynn. Chesney called Jarrett’s op-ed “nonsense,” explaining that, of the two statutes he cited, one “does not apply” and the other “is not a criminal law at all.”

The New York Times broke the news on May 16 that Comey wrote a memo after a February meeting with the president in which he recounted that Trump had asked him to end the investigation into Flynn. Right-wing media leapt to Trump’s defense. That day, Jarrett wrote that Comey may actually be the one facing criminal charges, claiming, “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.” Several other conservative media figures quickly picked up this line of attack.

In a May 17 Lawfare post, Chesney roundly debunked Jarrett’s assertion. Chesney noted that Jarrett overlooked a statute requirement that “affirmative steps to conceal [the obstruction] are required” for Comey’s actions to be criminal and that he did not take such steps. Furthermore, Jarrett incorrectly implied that the recipient of such a report would be Justice Department prosecutors; Chesney wrote that “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 the investigation he would report to himself. Finally, Chesney observed that Jarrett also cited “28 USC 1361,” which “is not a criminal law at all” and “makes no sense [to cite] in this context”:

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.