Illegal? Maybe. Unethical? Absolutely.
One of the questions that emerges from Thursday’s extraordinary Senate hearings was whether James Comey breached any legal or moral duties in leaking his story to the press, as he did through Daniel Richman, his friend at Columbia Law School.
One of those moral lapses might have involved revealing Richman’s identity, as Comey did in his testimony. We haven’t heard anything from Richman since then. I wonder how he feels about being outed by his erstwhile friend? Not too good, I should think.
I mentioned the leak on the “To the Point” NPR show, and said I was troubled by it. Another panelist poo-pooed this. She suggested that there was a kind of autobiographer’s privilege. A lot of people leave government and then publish their private talks about conversations with the president. I let that lie. But, smarter than me, Rush brought up David Petraeus on Friday. How come Comey gets to leak scot-free but Petraeus becomes a felon?
Here’s the difference, if any there is. The information Petraeus shared with his biographer (and mistress) contained code words for secret intelligence programs, the identities of covert officers and information about war strategy and deliberative discussions with the National Security Council. No question there about the classified nature of the information. There was nothing so sensitive in Trump’s discussions with Comey.
Comey’s disclosure might also be defended on the grounds of necessity. Suppose that a president orders that something clearly illegal be done, something so heinous that it rises to the level of an impeachable offense. Comey has hinted that that is what Trump had asked him. That would clearly distinguish it from the Petraeus case.
But then it’s more complicated than that. First, Petraeus’s disclosures were to a biographer, a West Point grad, and there was clearly no intention that the information be leaked to anyone else. In Comey’s case, on the other hand, the intention was to get the information into the hands of the New York Times as quickly as possible. Second, what Comey revealed clearly didn’t amount to an impeachable offense. Instead, it looked like payback from a just-fired employee, and Comey’s malice became all too clear when he went out of his way to repeat salacious and false rumors about Trump, for no other conceivable reason than to embarrass a person he hated.
That’s one of the things which bothered me most about Comey’s testimony — his twice-repeated assertion that the contemporaneous notes he took of his conversations with the president were “unclassified.” In other words, he was telling us that he got to decide, on his own authority, what was classified and what was not. However, the information in question concerned whether the president urged that an investigation into General Flynn’s foreign activities and intelligence sources be abandoned, which does look like a classified national security matter under Executive Order 13526. In the circumstances, I would have expected that only the president could declassify the information.
Here’s another way of thinking about it, suggested by George Washington law professor Jonathan Turley: Suppose that a lower-down FBI agent had leaked damaging information about Director Comey. What do you think a person so obsessively concerned about presenting himself as The Only Moral Man In Washington would have done to his subordinate?
Turley is an interesting fellow. He’s a man of the left, but went out of his way in 2014 to describe how Obama had subverted the Constitution through his assertions of excessive executive authority, through his use of executive orders and memoranda to bypass Congress. In short, he’s a good egg.
In a blog post Thursday, Turley speculates about whether Comey broke any legal or moral rules in his leaks.
Three things in particular bothered Turley. First, Comey had used an FBI computer to memos to file, which suggests that these might be government documents. Second, Comey might have breached nondisclosure agreements he entered into as a government employee. Third, he might have breached ethical and departmental rules against the use of material to damage a government employee. Turley concludes by saying that “I find Comey’s admission to be deeply troubling from a professional and ethical standpoint.”
Everyone’s a hero in his own little movie. What became clear Thursday is that Comey’s movie is tawdrier than he thinks it is.