How Comey set a trap for prosecutors when leaking his memos

Had the Department of Justice acted on the criminal referral that Inspector Horowitz reportedly issued regarding James Comey’s leak of memos, it would have fallen into a trap. Credit Comey with the legal sophistication you’d expect from a head of the FBI, but also credit the team assembled by Attorney General Barr for avoiding the trap.

Yesterday, I offered a non-lawyer’s analysis of Why you shouldn’t worry about the DOJ not prosecuting Comey on leaked memos and described the downside of a prosecution when the case is weak:

… imagine to potential consequences of taking as the first case against Comey a prosecution that could well be lost. Once a prosecution fails, the calls to drop the “political motivated persecution” would be legion. It is important that the first case taken to a jury be rock-solid and serious.

Following that, the Twitter account labeled “Undercover Huber” provided a detailed and expert analysis of the weakness of the case against Comey, illustrating the wiliness of the lawman in structuring his actions in a manner that would strengthen his defense against prosecution to the point where a not guilty verdict was probable. To be clear, Undercover Huber does not allege a trap – that is my inference, because I see the political impact of any unsuccessful prosecution. U.H., rather, provides expert knowledge of Comey’s craftiness.

Caricature by Donkey Hotey

You can read the original thread here. But I am taking advantage of the threadredrapp’s posting of the thread as a single document and embedding it below:

For those asking: here is the reason @Comey (sadly) won’t be prosecuted by DOJ for leaking one classified memo as reported by @jsolomonReports


Recap: I identified Comey breaking the law and the *specific* memo he leaked over a year ago. And more recently that he lied to Congress about it:Unroll available on Thread Reader


Here is the proof that @Comey leaked CLASSIFIED information in violation of federal law (18 USC § 793) to his friend Daniel Richman - who then was an anonymous source to the @nytimes

CC: @ChuckGrassley@DevinNunes@RepGoodlatte



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The standard DOJ use when deciding to proceed with a prosecution like this (or decline) isn’t “did Comey break the law?”
(which he did)

The standard is: “can I *prove* Comey broke the law *beyond a reasonable doubt* to the satisfaction of a jury?”

& DOJ didn’t think they could

Proving beyond a reasonable doubt would be difficult, because Comey was very clever in doing the leaking and attacking Trump:

—He didn’t leak all the memos

—He didn’t give the memos to the press but selectively had some of their contents read out by his “lawyers”

Comey also didn’t leak certain contents of the memos that remain secret to this day - e.g. whether Flynn was under a FISA, Trump’s calls with Putin etc

These are still redacted by the FBI and we don’t know their content

To a judge/jury that would show Comey was being selective

Also the classified memo was *retrospectively* classified by the FBI after Comey had already leaked it

His defense here would be that he didn’t know it was classified at the time

Comey can also say he himself classified some memos at SECRET level - and *didn’t* leak them

The law Comey broke doesn’t *require* any intent, but does require “gross negligence”

Comey would quite easily be able to argue that *at worst* he was negligent, but not grossly because he did protect some content of the memos he leaked, didn’t leak entire memos and they weren’t classified at the time (and where he should have classified them he attempted to)

Now I personally don’t agree with any of those defenses, but that’s irrelevant. Comey’s defense team would have a decent shot at introducing *reasonable doubt*, endangering the success of a prosecution. Prosecutors want the thing watertight up front

Disappointing but to end on a positive - that the IG referred Comey for potential criminal prosecution is a good sign

AG Barr/DOJ declining is only a good sign if they’re saving their ammunition for more a more watertight case involving Comey. 

That, we’ll have to see...


Thanks to @dbongino for the shout out and discussion about why he would have proceeded with a prosecution anyway - as a means to pressure and “flip” Comey. See his show today for more:

Here is the Dan Bongino show episode Undercover Huber references:

hat tip: Lauri Regan

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