Legality of “that” leaked memo: Comey’s testimony to the Select Committee on Intelligence

If you have been following with interest, as I have, the unfolding investigation by the US Senate into Russia’s interference in the US election, you would be aware that former FBI director James Comey (Comey) gave testimony last night in front of the Senate’s “select committee on intelligence”.

Comey’s testimony was peppered with full and frank allegations regarding his interactions with current POTUS, Donald Trump, the most surprising of which was a concession – an admission – that he had been responsible for “sharing” a memo with a good friend, who was a professor at Columbia law school, who acted as an intermediary to “leak” the memo to the press.

The memo was a record of a meeting between Trump and Comey, during which Trump allegedly told Comey to abort an investigation into Lieutenant General Michael Flynn, regarding Flynn’s interactions with Russian officials.

Comey said that he was spurred to share the memo in response to a tweet by POTUS Donald Trump on 12 May 2017, embedded below:

Comey’s testimony was as follows:

Senator Collins: OK, you mentioned that, from your very first meeting with the president, you decided to write a memo memorializing the conversation. What was it about that very first meeting that made you write a memo, when you had not done that with two previous presidents?

Comey: As I said, a combination of things. A gut feeling is an important overlay on it. But the circumstances — that I was alone, the subject matter, and the nature of the person that I was interacting with and my read of that person.

Senator Collins: The nature of that person?

Comey: Yeah, and — and — and, really, just a gut feel, laying on top of all of that, that this — it’s going to be important, to protect this organization, that I make records of this.

Senator Collins: And finally, did you show copies of your memos to anyone outside of the Department of Justice?

Comey: Yes.

Senator Collins: And to whom did you show copies?

Comey: I asked — the president tweeted on Friday, after I got fired, that I better hope there’s not tapes. I woke up in the middle of the night on Monday night, because it didn’t dawn on me originally that there might be corroboration for our conversation. There might be a tape. And my judgment was, I needed to get that out into the public square. And so I asked a friend of mine to share the content of the memo with a reporter. Didn’t do it myself, for a variety of reasons. But I asked him to, because I thought that might prompt the appointment of a special counsel. And so I asked a close friend of mine to do it.

Senator Collins: And was that Mr. Wittes?

Comey: No, no.

Senator Collins: Who was that?

Comey: A good friend of mine who’s a professor at Columbia Law School.

Comey’s friend was apparently Dan Richman, now a professor at Columbia Law School, and a former federal prosecutor, who then “leaked” the memo, which became the subject of the article first broken by Michael Schmidt of The New York Times, on 18 May 2017.

Undoubtedly, Comey received rigorous advice before giving the above testimony, if not before sharing the memo in question, yet POTUS Tump’s private lawyer, Marc Kasowitz, has apparently intimated that the sharing of the memo may warrant further investigation.

Mr Kasowitz stated:

Today, Mr. Comey admitted that he leaked to friends his purported memos of these privileged conversations, one of which he testified was classified … [Comey] also testified that immediately after he was terminated, he authorized his friends to leak the contents of these memos to the press in order to prompt the appointment of a special counsel … We will leave it the appropriate authorities to determine whether these leaks should be investigated along with all those others being investigated“.

Alex Brandon, Associated Press

So, did Comey break the law by sharing the memo with his friend, Dan Richman?

The general consensus from US law experts seems to be a resounding “no”, at least as to whether or not Comey’s disclosure constitutes any sort of criminal offence – provided, of course, that the memo was not “classified” (as being US intelligence or otherwise). It is also unlikely that Comey would, or could, be liable for any sort of civil suit.

University of Texas law professor Stephen Vladeck, in a series of tweets, has  put the potential for a case against Comey in the following terms:

“It’s not generally illegal for former government employees, or their friends, to disclose internal government memos without appropriate authorisation.

There are exceptions, including cases in which the memos involve “information relating to the national defence”, which might trigger the Espionage Act, or in which the disclosure of the memos deprives the government of a “thing of value” which might trigger the federal conversion-of-property statute.

And it may well be a violation of a government employee’s contract or non-disclosure agreement to release such memos. But the sanctions there are administrative and couldn’t run to a former government employee or, in Richman’s case, a non-government employee”.

The contrary view, expressed by a law professor at George Washington University, Jonathan Turley, is that Comey’s disclosure may have been unethical and, or, illegal, for the following reasons:

The problem is that Comey’s description of his use of an FBI computer to create memoranda to file suggests that these are arguably government documents.  Comey admitted that he thought he raised the issue with his staff and recognized that they might be needed by the Department or Congress.  They read like a type of field 302 form, which are core investigatory documents.

The admission of leaking the memos is problematic given the overall controversy involving leakers undermining the Administration. Indeed, it creates a curious scene of a former director leaking material against the President after the President repeatedly asked him to crack down on leakers.

Besides being subject to Nondisclosure Agreements, Comey falls under federal laws governing the disclosure of classified and nonclassified information.  Assuming that the memos were not classified (though it seems odd that it would not be classified even on the confidential level), there is 18 U.S.C. § 641 which makes it a crime to steal, sell, or convey “any record, voucher, money, or thing of value of the United States or of any department or agency thereof.”

Whatever the case, as calls for POTUS Trump to be impeached grow louder, and the case for impeachment stronger – with much more testimony still to be given before the US Senate – the legality of Comey’s disclosure may be of little practical relevance in the months, or even weeks, to come.