The Department of Justice has concluded that former FBI Director James Comey will not be prosecuted for his handling of memos he wrote describing his interactions with President Donald Trump. But the DOJ’s Office of Inspector General nonetheless concluded that his conduct did violate DOJ policy and his FBI contract. While the IG’s findings likely will result in no further penalties for Comey in light of his termination from the FBI, the report raises an important question about how we should treat whistleblowers. Criticizing Comey for mishandling documents that he felt conveyed an important threat to the public seems like scolding firefighters for getting your carpet wet while putting out a four-alarm blaze.
Trump and his White House have repeatedly slammed Comey as a “dishonest fool” who is “lucky” he wasn’t prosecuted. But what did Comey actually do?
The former FBI director wrote seven memos in 2017 chronicling his conversations with Trump. He kept copies of several of the memos in his home safe and at the FBI. Memo 2, as it is described in the IG's report, described a private dinner at which Trump asked for Comey’s loyalty. Memo 4 recounted Trump’s request to drop the FBI’s investigation of former national security adviser Michael Flynn. Memos 6 and 7 documented calls from Trump asking Comey to publicly state that Trump was not under investigation. Comey and the IG agreed that Memos 1 and 3 contained classified information, and Memo 5 was sent as an email, and so Comey did not store copies of them at his home.
When Trump fired Comey in May 2017, Comey kept copies of four of the memos. In June, FBI employees reviewed all seven memos and retroactively classified several words in the second as “Confidential,” signifying that disclosure of the information could damage national security. The IG report states that the group “spent a lot of time” discussing whether disclosure of the information should be classified.
On May 16, Comey asked a friend and lawyer, Daniel Richman, to share the contents of Memo 4, but not the document itself, with a reporter from The New York Times. Comey said his goal was to get information about Trump’s interference with the Flynn investigation into the “public square” in hopes of creating pressure to appoint a special counsel to investigate.
Comey also shared copies of Memos 2, 4, 6 and 7 with his lawyers. As Comey was preparing to testify before Congress in June 2017, he became aware of the retroactive classification of Memo 2. Upon making this discovery, Comey did not alert the FBI that he had shared a classified document with his lawyers. The next day, after Comey testified about his sharing the memos with the lawyers, the FBI contacted them and they returned the memos.
Despite the strongly worded DOJ report, the decision not to charge Comey came as no surprise in light of the relevant law. A variety of criminal statutes covers mishandling classified information, but they generally require either knowing and willful violations or intent to harm the national security. Because the classification of Memo 2 occurred after Comey had disclosed the memo to his lawyers, knowledge and willfulness could not be established. Moreover, there is no evidence that Comey acted with the purpose of harming the national security. To the contrary, Comey said that he was acting out of love for country, DOJ and the FBI.
In addition, there is no evidence that Comey lied about his conduct regarding the memos. This was not a case of insufficient evidence — no crime occurred. Contrary to Trump's assertions, Comey did not lie or technically leak classified information (although his lawyer did).
But this doesn’t mean that Comey is vindicated, exactly. The DOJ’s Office of Inspector General concluded that Comey committed four violations of DOJ policies: He failed to return to the FBI the four memos he had stored at his home' disclosed one of the memos to Richman and asked him to share the contents with The New York Times; and shared the memos with his lawyers and failed to alert the FBI once he learned that they contained information that had been retroactively classified. Internal rules prohibit employees from retaining official documents without permission after their employment ends, and forbid disclosure of information obtained in the course of official duties.
Comey took the position that the memos were not official FBI documents, but were instead his own personal records of recollection, much like a diary. The IG disagreed, finding him in violation of FBI policies and his employment contract, noting that if all FBI employees disclosed sensitive information to advance their own beliefs, the FBI would be unable to complete its law enforcement mission.
It is far from clear that the IG got it right. Reasonable minds can disagree about whether Comey’s memos were official FBI records that needed to be returned and could not be shared with others. But even if the IG report is correct, it seems to miss the big picture.
Comey himself is a complicated figure. He has stood up to authority and violated the rules before. He famously refused to authorize what he believed to be an unlawful surveillance order during the Bush administration. He also publicly disclosed his views of the Hillary Clinton email investigation, likely influencing the election that delivered the presidency to Trump.
This time Comey believed that Trump was attempting to end an investigation that could expose the president as an agent of a hostile foreign government. The report notes that Comey had other options, such as going to the IG or Congress as a whistleblower. But would those avenues have been effective when the subject is the president, in light of all of the enabling behavior we have seen at DOJ and in Congress? Comey wasn't just worried about a government program or agency decision, but a threat to government itself. It can’t be the right choice for a government official to remain silent in the face of such a threat.
Comey’s methods may have been clumsy, but he risked his job, his reputation and criminal prosecution to protect our country. It may be hard to craft a workable rule for the scenario Comey faced, but all rules need exceptions. The law recognizes a defense called “justification,” which permits a person to violate the law to achieve a greater good. For example, a person may break into a house to avoid being killed in a tornado.
In Comey's case, we have no crime, but a policy violation that was justified by a greater good to protect our national security from a serious threat.