Comey's Leak: Lawful Or Unlawful?

Former FBI Director James Comey has faced scrutiny and accusations of illegally leaking sensitive information regarding a Russian document and his conversations with President Donald Trump. Comey leaked details of his interactions with Trump to the press through a Columbia University professor and his friend and lawyer, Daniel Richman, with the intention of triggering the appointment of a special counsel to investigate Trump's ties with Russia. While some argue that Comey broke the law, legal experts and professors, such as Stephen Vladeck, have asserted that there is little possibility of a legal case against Comey, as the leaked information did not pertain to national defence and had no pecuniary value. The Justice Department has previously declined to prosecute Comey, citing the small amount of classified material involved and the timing of its classification.

Did Comey leak classified information?

There is conflicting information on whether James Comey, the former FBI Director, leaked classified information.

Some sources claim that Comey did leak classified information. In June 2017, the FBI reviewed memos written by Comey about his interactions with President Trump to determine if they contained classified information. It was found that two of the memos contained information classified as "confidential", and two others contained information of a higher classification level, "secret". Comey had leaked one of the confidential memos to the media through his friend and lawyer, Daniel Richman, and to his other lawyers, Patrick Fitzgerald and David Kelley. While this memo did not contain any classified information, Comey had still leaked classified information to his lawyers, who were not authorised to receive it.

However, other sources state that Comey did not leak classified information to the media. A University of Texas law professor, Stephen Vladeck, asserted that there was little possibility of Comey having broken a law, as no statute prohibits "leaks", and the memo did not include "information relating to national defense". Additionally, Comey was a private citizen when he leaked the memo, having been fired by Trump, which could make it difficult to question the legality of his actions. The Justice Department also decided against prosecuting Comey, despite his leak being in violation of FBI policy, because the amount of classified material involved was small, and there was a difference of opinion on whether it should have been classified.

Comey himself quoted the report stating that he "did not release classified information to members of the media", although he did admit to leaking sensitive but unclassified law enforcement material.

Did Comey break executive privilege?

In June 2017, former FBI Director James Comey testified before a Senate Intelligence Committee hearing on Russia's alleged interference in the 2016 U.S. presidential election. In his testimony, Comey revealed that he leaked a memo detailing a conversation with President Donald Trump to a Columbia University professor, who then relayed it to *The New York Times*. Comey stated that the leak's intent was to ensure a special counsel was assigned to the Trump-Russia investigation.

Following Comey's testimony, some, including President Trump, suggested that Comey had broken the law by leaking information to the press. However, legal experts, such as University of Texas law professor Stephen Vladeck, argued that it would be challenging to question the legality of Comey's actions, especially given that Comey was a private citizen at the time of the leak and that the memo did not contain classified or sensitive information relating to national defense.

Now, to address the specific question of whether Comey broke executive privilege, it is important to understand what executive privilege entails. Executive privilege is the right of the president and other executive branch members to maintain confidential communications under certain circumstances and resist certain subpoenas and oversight by the legislative and judicial branches. The Supreme Court has ruled that executive privilege is derived from the doctrine of separation of powers.

In the case of Comey's testimony, the White House considered invoking executive privilege to block his appearance before the Senate Intelligence Committee. However, legal experts argued that Trump's own public comments about his conversations with Comey and the circumstances of Comey's firing could be considered a waiver of executive privilege. Ultimately, the White House decided not to assert executive privilege, with a spokesperson stating that while the president had the power to do so, they wanted to facilitate a swift and thorough examination of the facts.

To conclude, while there was discussion and speculation about the potential invocation of executive privilege to block Comey's testimony, it was never formally asserted by the White House. Therefore, it is challenging to definitively state whether Comey broke executive privilege. The decision by the White House not to invoke executive privilege was likely influenced by the potential political cost and the weakness of their legal argument due to Trump's previous public statements.

Did Comey violate the Espionage Act?

In June 2017, former FBI Director James Comey testified before a Senate Intelligence Committee hearing on Russia's alleged interference in the 2016 U.S. presidential election. During his testimony, Comey revealed how and why he leaked a memo detailing a conversation with President Donald Trump to a Columbia University professor, who then relayed it to *The New York Times*. Comey stated that the leak's intent was to ensure a special counsel was assigned to the Trump-Russia investigation.

Following Comey's testimony, some, including President Trump, suggested that Comey had broken the law by leaking information to the press. However, legal experts and commentators debated the legality of Comey's actions, with some arguing that he did not violate any statutes and others claiming he set a "dangerous example" for FBI employees.

One key question was whether Comey's actions violated the Espionage Act. The Espionage Act, enacted during World War I, criminalizes the mishandling of classified information. It has been amended and renumbered but retains its core provisions. While it has been used sparingly, it has been invoked in high-profile cases, such as the prosecutions of Chelsea Manning and Edward Snowden for providing classified material to WikiLeaks.

In the case of Comey's leak, the specific question is whether he violated 18 U.S.C. § 793(f), a provision of the Espionage Act that makes it a felony to mishandle classified information with "gross negligence." Comey himself has interpreted this provision narrowly, arguing that prosecution requires proof that the individual "knew they were doing something they shouldn't do."

In the immediate aftermath of Comey's testimony, University of Texas law professor Stephen Vladeck opined that it would be challenging to prove a violation of the Espionage Act, as there was no indication that the leaked memo included "information relating to national defense." Additionally, the Justice Department decided against prosecuting Comey, citing the small amount of classified material involved and the fact that it was classified after the leak.

However, critics of Comey argue that he did, in fact, leak classified information. They point to a report from the Justice Department's inspector general, which found that Comey leaked sensitive law enforcement material and provided classified information to his lawyers. This included "Memos 1 and 3", which the FBI later determined contained information classified as "SECRET", and "Memos 2 and 7", which contained information classified as "CONFIDENTIAL."

In conclusion, while there are differing opinions on whether Comey violated the Espionage Act, the decision not to prosecute rested on the specific circumstances of the case, including the nature and timing of the classification of the leaked information. Comey's actions sparked a broader debate about the interpretation and enforcement of the Espionage Act, particularly regarding the distinction between negligent and intentional mishandling of classified information.

Did Comey violate the federal conversion-of-property statute?

The federal conversion-of-property statute, 18 U.S.C. § 641, states that an individual violates the law if they:

> embezzle, steal, purloin, or knowingly convert to his use or the use of another, or without authority, sell, convey or dispose of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof.

The question of whether Comey violated this statute hinges on whether "property" includes "pure information". Comey leaked a memo detailing a conversation with President Trump to a Columbia University professor, who then relayed it to *The New York Times*. This memo was not classified at the time, and it is unclear if it contained "information relating to the national defense", which would be a violation of the Espionage Act.

University of Texas law professor Stephen Vladeck argued that there was little possibility that Comey violated the federal conversion-of-property statute because the memo had no pecuniary value. He also noted that leak prosecutions under § 641 tend to focus on the value of the information being leaked, which was not present in this case.

However, others have argued that Comey did violate the statute by "conveying a record or property made under contract for the United States". While the case law does not support this interpretation, it is still a matter of debate.

Ultimately, the Justice Department decided against prosecuting Comey for leaking classified information, but he was found to have violated FBI policy in his handling of the memos, which contained the "code name and true identity" of a sensitive source.

Did Comey leak sensitive law enforcement material?

There are conflicting opinions on whether former FBI Director James Comey leaked sensitive law enforcement material.

Some sources claim that Comey leaked sensitive but unclassified law enforcement material to the media through his friend and lawyer, Daniel Richman. Comey wrote seven memos about his interactions with President Trump, and Memo 4, which did not contain any classified information, was leaked to The New York Times in an attempt to trigger the appointment of a special counsel.

However, Comey did leak classified information to his lawyers, Patrick Fitzgerald, David Kelley, and Richman. Memo 2, which Comey shared with his attorneys, contained six words classified as "confidential." Comey, as director and an Original Classification Authority, had the power to classify material but did not do so for Memo 2 at the time of writing. The FBI later determined that portions of the memo should be classified, and they took steps to remove it from the computers and devices of the three lawyers.

While Comey's actions violated Justice Department and FBI policy, as well as his terms of employment, the Justice Department decided not to prosecute him. They considered the small amount of classified material involved and the fact that it was formally classified after Comey sent it. There was also a difference of opinion on whether the information should have been classified at all.

University of Texas law professor Stephen Vladeck also argued that there was no legal statute prohibiting "leaks" and that the relevant question was whether another statute applied. He concluded that there was little possibility of a "real legal argument" that Comey crossed a legal line.

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