No glory in James Comey getting away with his abuse of FBI power

BY JONATHAN TURLEY, OPINION CONTRIBUTOR —  12/15/18 10:00 AM EST

“I probably wouldn’t have … gotten away with it.” Those words this week from former FBI Director James Comey could well be chiseled in marble as his epitaph. He was explaining another violation of bureau policy during his tenure days after meeting behind closed doors with House members.

What was shocking was not that Comey violated protocols or policies again but the reaction of the audience to his admission. In describing how he set up a critical meeting with Michael Flynn, former national security adviser to President Trump, the audience was audibly thrilled by his cleverness in keeping Flynn unrepresented by legal counsel and unaware of the true nature of the meeting. Scheduled to testify to House members again next week, Comey may find a less rapturous reception in Congress.

In his interview in New York City, Nicole Wallace asked him, “It’s hard to imagine two FBI agents ending up in the State Room. How did that happen?” The audience erupted when Comey said dryly, “I sent them. Something we’ve, I probably wouldn’t have done or maybe gotten away with in a more organized investigation, a more organized administration. In the George W. Bush administration … or the Obama administration, two men that all of us, perhaps, have increased appreciation for over the last two years. In both of those administrations there was process.” He revealed, “So if the FBI wanted to send agents into the White House itself to interview a senior official, you would work through the White House counsel and there would be discussions and approvals and it would be there. I thought, ‘It’s early enough, let’s just send a couple of guys over.’”

Just send a couple of guys over. One line could not more aptly capture Comey and his own professed view of “ethical leadership.” The interview confirmed what some of us have written about Comey for more than two years. The media consistently reinforced his image as a rules driven and principled public servant, often referring to him as an almost naive Eagle Scout. The Washington Post even ran the headline, “Boy Scout James Comey is no match for Donald Trump.” Yet, the history of Comey shows both an overriding interest in his own actions as well as a willingness to violate rules to achieve that interest. But his comments, including a call to the public to defeat Trump in a “landslide” in the next election, have stripped away any remaining pretense. The fact is, there often was more pretense than principle in his final years as director.

Consider his conduct during the 2016 presidential election, leading up to his controversial press conference and public announcements, which were widely condemned by both Republicans and Democrats. As here, Comey failed to inform the Justice Department or the attorney general of his intended action. In doing so, he was far outside the clear policies and protocols. Indeed, the first public act of Deputy Attorney General Rod Rosenstein was to issue a memo excoriating Comey for his “serious mistakes” and citing former federal judges, attorneys general, and leading prosecutors who believed that Comey “violated longstanding Justice Department policies and tradition” along with “his obligation to ‘preserve, protect and defend’ the traditions of the department and the FBI.” Rosenstein further added that Comey “refused to admit his errors.”

Then there was Comey’s response to being fired. He removed memos on his meetings with President Trump related to the Russia investigation, then leaked those to the media. The Justice Department rejected Comey’s claims that these were his memos, not FBI material. Some of the material was classified. He violated core FBI rules in removing the memos, and the man tasked to find leakers became a leaker as soon as it suited his own interests. He also undermined the investigation by revealing to Trump and others that the memos existed, information that investigators likely preferred to remain secret before they conducted key interviews.

Then Comey published a book, a sharp departure from prior directors, that discussed the ongoing Russia investigation. He did not pause before rushing it to the shelves, revealing details of the investigation and various meetings while making a fortune for himself. Now Comey has again admitted to violating rules and protocols, by setting up Flynn. Ironically, Comey criticized Trump for breaking protocols in meeting with him alone and asking about an ongoing investigation. He was right in that criticism because there is a formal process for communications between the FBI and the White House. Yet, the same protocols go the other way. If the FBI seeks to interview White House officials in an investigation, they go through the Justice Department, which communicates with White House counsel to arrange the interview. He evaded both in ordering the move.

What was Comey’s justification? Because he could. He refers to the “process” of other administrations. That process, however, was still in place and did not change. Moreover, he noted that he thought he could get away with it because this was “early” in the administration. That is not principle. It is opportunism. He was supposed to work through the Justice Department and not simply follow the rules only if he might be caught breaking them. Former Acting Attorney General Sally Yates is cited in some recently released FBI material as being irate over his decision.

There is a reason for the policy of conferring with counsel. It protects not just the individual but the institution. It prevents rogue or impulsive actions and maintains a clear chain of command within the Justice Department. It is part of the internal rules in how the components of the executive branch function and communicate with each other to preserve both independence and proper review. It is part of the very delicate relationship that Comey accused Trump of violating. There was nothing noble in Comey seeking to reduce the chance that Flynn might have legal counsel. Those same liberals applauding him wildly would presumably be appalled if a police detective proudly described how he prevented a criminal suspect from speaking to a lawyer simply because he could.

Flynn ultimately bears responsibility for any false statements. As special counsel Robert Mueller noted in a court filing, he should have known better, and we should not forget that Flynn ultimately pleaded guilty to lying. However, that does not mean the circumstances or the conduct of FBI officials are irrelevant. The agents, including Andrew McCabe and Peter Strzok, who were both later fired by the FBI for their actions in this investigation, admitted that they discussed warning Flynn about criminal liability for false statements. They warned other witnesses, like former Trump campaign aide George Papadopoulos. Yet, they not only omitted that warning with Flynn but did not raise a conflict in his denying that sanctions were discussed with Russian diplomats. They also encouraged Flynn not to bring a lawyer or to inform the White House counsel. Instead, they arranged a meeting just hours after a telephone call with McCabe.

Ultimately, the agents recounted that they did not believe Flynn deliberately lied at the time. Moreover, Flynn told McCabe that he assumed McCabe had read the full transcript of his conversation with the Russian ambassador, an apparent reference to his knowledge that Russian embassy phones were tapped. The comment further raises the question of why Flynn would lie about discussing sanctions if he recalled the discussion and knew of the wiretap. Yet, Comey seemed to delight the audience by taking credit for keeping Flynn in the dark about the FBI interview. When Wallace asked what Flynn thought the FBI agents wanted, Comey replied, “I don’t think he knew. I know we didn’t tell him.” Actually, Comey didn’t tell anyone. Not the White House counsel, not the acting attorney general, not the Justice Department. He “just sent a couple of guys over” to the White House because he could “get away with it.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.