WASHINGTON – The leak of the infamous Comey memo to the press might severely boomerang on the former FBI director, according to legal experts.
Democrats are hoping newly appointed special prosecutor Robert Mueller will find President Trump committed obstruction of justice by allegedly telling former FBI Director James Comey to drop the investigation into former national security adviser Mike Flynn.
Those hopes are based on a New York Times report that Comey drafted a memo after a meeting with Trump in February that said the president had asked the director to “let this go,” in reference to the Flynn investigation.
Everything hangs on the accuracy of that account, but a number of factors put its credibility into question.
Former National Security Adviser Mike Flynn and President Trump
First of all, no one at the Times has seen the memo to verify that it actually exists. By the paper’s own admission, the story comes entirely from unidentified, second-hand sources. The Times claimed “one of Mr. Comey’s associates read parts of” the alleged memo to a reporter, presumably over the phone.
One of the other peculiarities of that story is that, according to a Washington Post story in January, the FBI had already cleared Flynn in December of any wrongdoing in phone conversations he had with the Russian ambassador after the election.
But, the conversation Comey had with Trump that supposedly produced the memo occurred in February, well after the FBI cleared Flynn.
In fact, the meeting occurred on Feb. 14, the very day after Trump had fired Flynn.
Another oddity is that Comey testified before Congress on May 3, that the Trump administration had not attempted to interfere with the FBI’s investigation into whether the Russian government meddled in the 2016 presidential election. (See video above.)
Former FBI Director James Comey
During a Senate Judiciary Committee on FBI oversight, Sen. Mazie Hirono, D-Hawaii, asked Comey, “If the attorney general or senior officials at the Department of Justice opposes a specific investigation, can they halt that FBI investigation?”
“In theory, yes,” he replied.
“Has it happened?” she asked.
“Not in my experience,” said Comey. “Because it would be a big deal to tell the FBI to stop doing something without appropriate purpose … Often times they give us opinions that we don’t see a case there, and so you ought to stop investing resources in it, but I’m talking about a situation where we were told to stop something for a political reason. That would be a very big deal. It’s not happened in my experience.”
Critics have said the senator never asked about Trump, only about the attorney general or senior officials at the Justice Department.
However, a close look reveals Comey gave a response to the question that answered more than what he was asked. Comey says, “I’m talking about a situation where we were told to stop something for a political reason.”
That is precisely what the Times said the Comey memo indicated the president had suggested.
And, if it would have been “a very big deal,” in Comey’s words, had the attorney general tried to stop an FBI investigation, it would only have been an even bigger deal if the president had done so.
But, as he testified under oath, “It’s not happened in my experience.”
Then again, what if the critics’ interpretation is correct, and Comey was referring only to the Justice Department and not anyone from the Trump administration, including the president?
And, suppose the Times report is true, that “Comey and his aides perceived Mr. Trump’s comments as an effort to influence the investigation, but they decided that they would try to keep the conversation secret – even from the F.B.I. agents working on the Russia investigation – so the details of the conversation would not affect the investigation.”
If that is true, and Trump really did try to influence the investigation, then it is Comey himself who would be guilty of obstruction of justice.
Guilty for not reporting it to authorities.
Attorney and Fox News anchor Gregg Jarrett wrote in an op-ed piece on Tuesday: “Under the law, 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. Failure to do so would result in criminal charges against Comey. (18 USC 4 and 28 USC 1361) He would also, upon sufficient proof, lose his license to practice law.”
Fox News anchor Gregg Jarrett
Jarrett observed, “There is no evidence Comey ever alerted officials at the Justice Department, as he is duty-bound to do.”
“Surely if he had,” the attorney added, “that incriminating information would have made its way to the public either by an indictment or, more likely, an investigation that could hardly be kept confidential in the intervening months.”
Constitutional scholar and left-leaning law professor Jonathan Turley, a frequent expert witness at congressional hearings, also found the report of the memo “raises as many questions for Comey as it does Trump in terms of the alleged underlying conduct.”
In his own op-ed in the Hill on Wednesday, Turley wrote: “[I]t also raises questions of Comey’s judgment. The account suggests that Comey was so concerned about the conversation that he wrote a memorandum for record.”
“But that,” he concluded, “would suggest that Comey thought the president was trying to influence the investigation but then said nothing to the Justice Department or to his investigation team.”
“Why?” wondered Turley. “If he thought the president was trying to derail the investigation, that would seem relevant to the scope of the investigation.”
The professor noted that one explanation would be that “Comey did not view Trump as a potential target of the Flynn investigation, and thus did not view the uncomfortable meeting as relevant to the investigation team.”
“However,” he observed, “that would make the case even weaker for allegations that Trump was trying to protect himself or his inner circle by seeking closure for Flynn.”
Constitutional scholar Jonathan Turley
Jarrett explained precisely how the leaked memo could boomerang on Comey, and how “by writing a memo, Comey has put himself in a box.”
On the one hand, “If he now accuses the president of obstruction, he places himself in legal jeopardy for failing to promptly and properly report it.”
On the other, “If he says it was merely an uncomfortable conversation, he clears the president of wrongdoing and sullies his own image as a guy who attempted to smear the man who fired him.”
“Either way, James Comey comes out a loser,” the attorney concluded.
But, Jarrett wryly added, “No matter. The media will hail him a hero.”
Another factor to consider is the big picture, the larger context within which the memo story arose.
This wasn’t Comey’s only investigation.
He had also investigated Hillary Clinton’s email scandal.
During congressional testimony, Comey refused to confirm or deny whether, as part of the Russian meddling probe, the FBI was also investigating if the Obama administration spied on the Trump campaign and transition team for political purposes.
Or if the bureau was investigating who in the Obama administration was leaking classified information to the press, including information on the Flynn phone calls with the Russian ambassador.
“I want to get the full context” on all the investigations, Rep. Jim Jordan, R-Ohio, told Lou Dobbs on Fox News Wednesday.
By full context, Jordan meant, “I want to know if former Director Comey took a memo when he decided to give Cheryl Mills immunity in the Clinton investigation. Did he have a memo when Secretary Clinton’s husband met with Loretta Lynch, then attorney general, on the tarmac?”
Dobbs wondered, “Why was there such hesitation to investigate the Clinton Foundation, which is, on its face, a corrupt enterprise?”
Jordan added, “Or, where were the memos when we first learned about the IRS targeting people for exercising their First Amendment liberties?”
“Look, if were going to get some memos, let’s get all the memos, and let’s get the full context of what took place under Mr. Comey’s watch when it came to these important issues.”
On the appointing of the special prosecutor, and the media’s role in that, Dobbs pulled no punches, remarking, “I think that you can make the case that president is well served in this since there has been nothing but the most venomous, vile, personal attacks in this country’s history.”
The anchor then doubled down on his contempt for the media, delivering a hay-maker, right between the eyes.
“Actually, I want to retract that. It is the vilest, most venomous attack in our country’s history on a sitting president.”
Dobbs concluded: “This goes beyond anything that has occurred in our history. And it’s all the result of a left-wing attack on this presidency with the point of destroying the presidency and destroying his agenda and breaking the will of those who voted for this president.”