You Must Remember This: A Leak Is Still a Leak

When I use a word, said the Washington, D.C. lawyer and former official, it means just what I choose it to mean, neither more nor less.  Consider: what's in a name?  What we call a "leak" does not smell as sweet as the word "give" for James Comey, former director of the FBI.  Clarification of terminology in the endlessly running serio-comedy in which James Comey has been one of the leading participants concerning alleged Russian intervention in the 2016 presidential election appears too recondite for him and some other Washington officials, even for terms seemingly obvious, such as "classification" and "collusion." 

It is understandable and appropriate that there are sharp differences on conclusions of events in the Washington chessboard of politics.  On one hand, the House of Representatives Intelligence Committee on April 27, 2018 reported that it found no evidence that the Trump 2016 presidential campaign had "colluded" with Russia, though Russians had tried to sow discord through cyber-attacks and social media.  On the other hand, opponents of the Trump administration refer to the report as superficial and "just a wreck."

A particularly intriguing event concerns the memos of private conversations, January 2017 to April 11, 2017, between Comey, FBI director from September 2013 to May 2017, and President Donald Trump, now the subject of heated legal and political controversy.  

It has long been true that in the U.S., as in other countries, there is a symbiotic relationship between journalists and politicians and public officials who use journalists for political advantage and reward them by leaks and collusion, thus offering opportunities for media scoops or political advantage.  An early example in the U.S. is Benjamin Franklin when he was postmaster of Philadelphia.  He was dismissed from his post in January 1774 for "pernicious activity."  He had seen and leaked official letters written by Thomas Hutchinson, British general of Massachusetts, about the sending of troops.  Franklin circulated the letters, which were then published by John Adams in the Boston Gazette.  Franklin admitted his role in the leaking.

More recently, leakers have told a tale too well.  A major scandal was the leak in 1972 by "Deep Throat" on the activity of the Nixon administration at the Watergate Hotel in D.C. to Washington Post journalists Carl Bernstein and Bob Woodward.  Another was the leak by Daniel Ellsberg in June 1971 of the Pentagon Papers, critical of the Department of Defense report on U.S. troops in Vietnam, 1945-67.

U.S. politics has been influenced by master leakers  Julian Assange with 400,000 classified military documents in November 2010 shared with the New York Times and the Guardian, and Edward Snowden, former intelligence contractor and CIA employee, in 2013 leaked classified details of a secret NSA program to the Washington Post.  Leakage continues.  The Panama Papers scandal erupted in 2015-6, with more than 11 million documents on how wealthy individuals used tax havens for financial benefit, with links to 12 current or former heads of state and government.  The Paradise Papers with 13 million confidential documents were linked to German newspapers in November 2017.

This relationship, disclosure by officials to the media directly or indirectly, is meaningful, if not central, in the case of Comey.  A major issue involves his disclosure to his friend of seven memos, four of which were marked "confidential" and two marked "secret."  Comey asked the friend, Daniel Richman, professor of law at Columbia University and former federal prosecutor in New York, to share the contents of some of them, primarily that of February 14, 2017, with the media, which Richman did to the New York Times.  Comey had sent Richman a copy of a two-page memo and asked him to get the substance of it out to the media.  The exact motives for this procedure are still not completely clear, but a stated reason by Comey is that he wanted his memos released because he thought this might promote the appointment of a special counsel for the Russian investigation, which in fact it did.

A number of significant legal as well as political issues are raised.  The first is the nature of the act of disclosure.  Was it a "leak" of government property, or was it "given," the word preferred by Comey?  Related to this is the question of whether Comey did not follow the specific rules about FBI employment as a public official.  Among those rules are provisions that release of any information or material acquired during official employment to unauthorized individuals without prior official authorization by the FBI is prohibited.  

Comey had agreed to FBI rules that forbid without written approval the release of information "that relates to any sensitive operational details or the substantive merits of any ongoing or open investigation or case." The broad general issue is whether Comey had the right to disclose or "leak" confidential conversation, whether it came from an official document or private papers, as he claimed.

Comey considered the memos not part of an FBI file, but rather as a personal "aide-mémoire."  He had made two copies of the memos, one put in his personal safe at home and the other left with the FBI, which would have access to it.

A third issue is the type of information released by Comey.  Unauthorized disclosure of classified information is a violation of the law.  On this point, on whether the released memos contain "classified" information, disagreement exists.  The inspector general of the Department of Justice, Michael Horowitz, is conducting a general review of the problem and exact definition, especially regarding national security, and standards for classifying material as well as of compliance with FBI policy.

Comey also disclosed information, four memos, to his "legal team."  One of them was Patrick J. Fitzgerald, with whom Comey was linked in a previous case of leaking.

In December 2003, Comey was deputy attorney general and, acting after A.G. John Ashcroft recused himself from the case, appointed Fitzgerald, former head federal prosecutor in Chicago, with full plenary power as a special counsel to investigate leaks of information in the case involving the identity of Valerie Plame, a CIA "operative."  Fitzgerald, who may fairly be regarded as an overzealous and politically motivated prosecutor, led a federal grand jury to indict I. Lewis "Scooter" Libby, a prominent Washington lawyer and chief of staff to Vice President Dick Cheney.

The criminal investigation was supposed to focus on unauthorized disclosure of classified information about Plame's identity.  Joseph Wilson accused the U.S. administration of leaking her identity to punish him for his political criticism.  Special Counsel Fitzgerald argued, among other matters, that Libby had lied concerning the disclosure of a covert intelligence's officer's identity.  But Libby was not the leaker, and in fact Plame's identity was made public first by Robert Novak and then by Bob Woodward.

Injustice was done to Libby.  The real leaker was Richard Armitage, then deputy secretary of state, who was never charged for releasing classified information but who later acknowledged his responsibility.  Moreover, later revelations showed two other things: many other people in D.C. knew that Plame worked in some capacity for CIA, and the leak of her name did not affect any CIA operation or cause any national security harm.

Scooter Libby had undergone a miscarriage of justice.  In the present case, the game's afoot.  Judicial inquiry will assess whether the material Comey disclosed, gave, or leaked was personal or official material.  As with Fitzgerald, the problem for Comey is whether he has preserved the independence of the judicial system from political machinations.  It remains unknown who first leaked official information, including about the anti-Trump "dossier," that was used to some extent, if not wholly, to obtain a surveillance warrant for a former Trump aide.  Notwithstanding, we do not need highly skilled detectives or Washington lawyers to uncover who funded the dossier.