Legal experts debunk right-wing media’s desperate lies about James Comey’s memo

Written by Brendan Karet & Cristina López G.

Published

Following James Comey’s public testimony to the Senate Intelligence Committee, right-wing media figures erroneously accused James Comey of illegally leaking details about his private conversations with President Donald Trump.

Comey: “There’s no doubt that I was fired because of the Russian investigation”

Washington Post: Comey “arranged for details of his private conversations with the president to be made public, so that an outside lawyer would take over the case.” On June 8, the Washington Post reported on former FBI director James Comey’s “dramatic testimony,” adding Comey “arranged for details of his private conversations with the president to be made public, so that an outside lawyer would take over the case”:

Former FBI director James B. Comey said in dramatic testimony Thursday he could not trust President Trump to tell the truth, leading him to take extraordinary steps to document their private conversations and to make the details public to spur the appointment of a special counsel to probe the administration over possible links to Russia.

He also accused White House officials of telling “lies, plain and simple,” about him and the FBI in an effort to cover up the real reason for his dismissal last month.

“There’s no doubt that I was fired because of the Russia investigation,” Comey said in highly anticipated testimony to the Senate Intelligence Committee. “The endeavor to change the way the Russia investigation was conducted, that is a big deal.”

He also revealed he was so skeptical about whether Justice Department leadership could handle the politically explosive probe after he was fired that he arranged for details of his private conversations with the president to be made public, so that an outside lawyer would take over the case. [Washington Post, 6/8/17]

Right wing media falsely claim Comey illegally leaked to press

Bill O’Reily: “It was a huge and possibly illegal breach.”

[Twitter, 6/8/17]

Breitbart’s Matt Boyle: “Comey has vindicated the president and implicated himself in potentially illegal leaks.” Breitbart editor Matt Boyle wrote “The leaky Capitol Hill GOP swamp aides are attacking Trump, despite the fact Comey has vindicated the president and implicated himself in potentially illegal leaks.” [Breitbart, 6/8/17]

HotAir’s Allahpundit: “Comey prosecution for leaking would be l-l-l-l-l-l-lit.”

"

[Twitter, 6/8/17]

Frequent Fox News guest David Wohl: “Counsel for @POTUS now confirms the leak of priveleged [sic] communications by #Comey was illegal!”

[Twitter, 6/8/17]

Fox's Eric Bolling: “Is anyone else wildly concerned that our FBI director leaks important documents to the press?” On the June 8 edition of Fox News' The Fox News Specialists, host Eric Boling asked “Is anyone else wildly concerned that our FBI director leaks important documents to the press”:

ERIC BOLLING (CO-HOST): Is anyone else wildly concerned that our FBI director leaks important documents to the press and Corey it begs the question, what else did he leak?

COREY LEWANDOWSKI: This all is part of the deep state Eric. I hate to say it. I hate to be a conspiracy theorist. [Fox News, The Fox News Specialists, 6/8/17]

Right-wing radio host Michael Savage: Comey “Committed an unauthorized disclosure of information, and he should be indicted for this.” During the June 8 edition of his radio show, host Michael Savage claimed James Comey “committed an unauthorized disclosure of information, and he should be indicted for this”:

MICHAEL SAVAGE (HOST): Many of you want me to talk about these hearings, this much ado about nothing. It’s Comey himself who committed perjury today, in my opinion. There's no question in my mind he committed an unauthorized disclosure of information, and he should be indicted for this. Trump’s lawyer says James Comey made unauthorized disclosures of privileged -- privileged talks. I believe he is correct. He has directed unauthorized news leaks designed to crucify President Trump.[Premiere Radio Networks, The Michael Savage Show, 6/8/17]

Experts say Comey didn't unlawfully leak because he is a private citizen and his memo is “not classified material”

Steve Vladeck: Comey asking his friend to provide memos to the press didn’t break the law. Steve Vladeck, law professor at the University of Texas and blogger at Lawfare blog, explained that Comey's decision to share his memos did not break the law because it didn’t violate the federal conversion of property statute.

[Twitter, 6/8/17]

Former FBI special agent Asha Rangappa: Comey is “a private citizen” whose communications “are not privileged.” Asha Rangappa, a former FBI special agent explained on CNN that the content of Comey’s memos were not “privileged communications” as he is a private citizen, and they are the equivalent of his documenting and sharing “personal recollections” on a personal diary:

ASHA RANGAPPA: Well, he's a private citizen now and those are not privileged communications. They don't go to the core of presidential decision making which is what U.S. v Nixon said executive privilege goes to, and, in fact --

DAVID URBAN: I’m not asking the legal, I’m asking whether you think it was appropriate?, is what I’m asking.

RANGAPPA: I think he apparently had very deep questions on whether this Russia investigation would be handled objectively once he left. [CNN, CNN Newsroom with Brooke Baldwin, 6/8/17]

Michael Zeldin: “Legally speaking, [Comey having his friends provide memos to the press] is not a leak.” Michael Zeldin, former special assistant to Robert Mueller at the Justice Department, explained on CNN that Comey’s memos are not classified, as “he’s talking about what he said,” and that, in front of a grand jury, anyone is “perfectly permitted to say what” they have said in the past:

BROOKE BALDWIN (HOST): Was it legal? Let me -- just looking to you, Michael Zeldin, was it legal, was it okay for Comey as a private citizen to say to his pal over at Columbia University, hey, here's this memo, here's what happened, get it out there? Is that wrong?

MICHAEL ZELDIN: Well, wrong and legal are different.

BALDWIN: Let's stick with legal. Legal.

ZELDIN: He's talking about what he said. This is not classified. There's no leak. It's not definitionally a leak. Leak is something completely different. I understand there are politics around here and that's not my beat. Legally speaking, this is not a leak. It's more Comey as whistleblower than leaker if you want to give it a name. But just in the case of a grand jury, when you come out as a grand jury witness and they say, what did you say, what was the conversation? You're perfectly permitted to say what you said. She can't say what I said if she was a grand juror and that's a leak. In this case, it's not a leak if it's a conversation that he's permitted to have. The manner in which he did it, throughout a cutout, we can talk about whether that is desirable or not desirable. [CNN, CNN Newsroom with Brooke Baldwin, 6/8/17]

Axios: Comey penned his memos “in an unclassified manner.” Axios’ Shane Savitsky explains that Comey penned his memos in an “unclassified manner” so they were “easier to discuss” by all clearance levels in government. [Axios, 6/8/17]

Fox News’ Shepard Smith: “It’s not a leak,” Comey is “not a government employee.” During the June 8 edition of Fox News’ Shepard Smith Reporting, host Shepard Smith explained that Comey’s alleged “leak” “was not a leak” because “Comey is not a government employee.” Smith additionally stated “Everybody is caught up in leaks now, rather -- to avoid addressing the substance, one focuses on the leaks”:

SHEPARD SMITH (HOST): Then there's the matter of what some are calling the leak, and it was not a leak, and for a number of reasons. When James Comey gave his information to his friend at Columbia Law to pass along to The New York Times so the word got out, that's not a leak.

ANDREW NAPOLITANO: No, that is not a leak, because it's not classified material.

SMITH: And he's not a government employee.

NAPOLITANO: And he’s not a government employee. Comey is not a government employee, the professor is not a government employee.

[...]

SMITH: Everybody is caught up in leaks now, rather -- to avoid addressing the substance, one focuses on the leaks.

NAPOLITANO: Right.

SMITH: But in this case, you can’t call it a leak, because it wasn’t even a leak.

NAPOLITANO: Correct. [Fox News, Shepard Smith Reporting, 6/8/17]