Justice Department Inspector General Michael Horowitz issued a scathing report Thursday on the conduct of former FBI Director James Comey during the first few months of the Trump administration detailing his actions that violated FBI and DOJ policy. But despite its harsh tone, the narrowly tailored report failed to find Comey guilty of any serious criminal wrongdoing while revealing the IG’s actually rather thin basis for criticizing him.
And in the end, the document proves a vindication for Comey’s controversial choice to release memos that triggered the appointment of Special Counsel Robert Mueller. That appointment led to the production of the Mueller report, a document that is far more important for the country and damning of its subject — President Donald Trump — than the IG’s report on Comey could possibly be.
To fully understand the extent of Comey’s vindication, you have to be familiar with the right-wing media narrative surrounding the former FBI director. Because this narrative had so little basis in fact, if you don’t pay attention to the conservative echo chamber much, it would have been easy to miss all the fulminating about Comey and the hunger for his head on a platter that has proliferated on the right wing.
But this anger is real, and it is intense. And many critics of the former FBI director have been fuming about the fact that Comey isn’t facing criminal prosecution, and they were certainly hoping the IG report would have more damning details than it does (though they will surely make mountains out of the molehills Horowitz found).
Trump has fueled the hatred of the former FBI director. He has repeatedly taken aim at Comey since firing him in 2017, including with this famous tweet:
James Comey leaked CLASSIFIED INFORMATION to the media. That is so illegal!— Donald J. Trump (@Donald J. Trump)1499683216.0
As the IG’s report reveals, Comey did not do this. Trump was referring to Comey’s decision, after he was fired, to give memos he had made as FBI director about his interactions with the president to the New York Times through an intermediary. These memos revealed that Trump had asked for his loyalty at a private dinner and tried to get Comey to drop the criminal investigation into his former National Security Adviser Michael Flynn. These revelations, on top of Trump’s controversial firing of Comey, helped prompt the appointment of a special counsel by Deputy Attorney General Rod Rosenstein. Mueller would go on to investigate Trump’s actions as potential obstruction of justice.
Since Mueller found substantial evidence that Trump committed obstruction of justice in a series of events that included these actions, it has been psychologically and tactically important for the president’s allies to discredit Comey’s initial release of the memos. Even if Comey’s sharing of the memos had been illegal, Mueller’s findings would still stand, but Trump and his allies could muddy the waters of the investigation by saying it was corrupt from the start.
But the effort to tarnish Comey as a criminal leaker has crashed and burned, and Horowitz’s report throws water on the remaining embers. Though Comey’s memos contained some marginal classified information, Horowitz, as well as prosecutors at the Justice Department, did not determine that he broke the law or leaked this information to the press.
Comey celebrated the finding on Twitter, with not a little smugness:
DOJ IG "found no evidence that Comey or his attorneys released any of the classified information contained in any o… https://t.co/DK8R6AoWhQ— James Comey (@James Comey)1567087303.0
And to all those who’ve spent two years talking about me “going to jail” or being a “liar and a leaker”—ask yoursel… https://t.co/A9XEQxV89Z— James Comey (@James Comey)1567087317.0
Comey is, in the main, right. He has been widely and falsely smeared as a criminal for acts that simply did not violate the law. (So too, it seems, was Hillary Clinton — but that’s another story altogether.)
But some have accused Comey of spinning the results of the investigation, which they argue is more damaging of his conduct than he lets on. Writing for the Bulwark, Andrew Egger argued:
The report partially explains why the Justice Department decided not to prosecute Comey earlier this month, as the inspector general found no evidence to support Trumpworld’s most dire accusation: that Comey had deliberately and knowingly leaked classified information. But the rest of the report is more damning, calling Comey a “dangerous example” of a director using his position to his personal advantage while intentionally violating FBI and Justice Department policy. It also details how Comey treated other classified documents in a careless way, keeping several memos containing secret information in a personal safe at home.
As the IG report takes pains to point out, Comey’s breach of policy was no small thing. To handle the nation’s classified information is a solemn duty that we entrust only to a certain number of our fellow citizens. The understanding is that they are only to make use of that information in relation to their roles as public servants, never for their own personal advancement or gain. To enforce this standard is difficult—by necessity, it is sustained largely by agents’ public-spiritedness and the public’s trust. For the FBI director to abandon that standard on his way out the door does undeniable damage to both.
But this is too harsh on Comey. The report doesn’t actually criticize Comey for keeping classified records in his home. Instead, it criticizes him for not turning in the records after he was fired.
Indeed, the main criticisms of Comey, except perhaps for nitpicking about whether he put the proper banners on documents known to contain classified information, pertain to actions he took after Trump fired him. And this fact is of central importance: Because while you may be criticized for breaking department policy after you’ve been fired, the department usually can’t do much about it. That’s because your duty to follow the policies is a function of your professional obligation — an obligation that was ceased when your employment ended. Breaking your employer’s policies is usually, at most, punished with termination, a foregone conclusion at the relevant point for Comey. Now, you might still have moral reasons to live up to obligations accrued while you were employed, but these reasons can be overruled — as I’ll discuss below, after detailing the allegations.
The report explained allegations against Comey as follows:
Accordingly, after his removal as FBI Director, Comey violated applicable policies and his Employment Agreement by failing to either surrender his copies of Memos 2, 4, 6, and 7 to the FBI or seek authorization to retain them; by releasing official FBI information and records to third parties without authorization; and by failing to immediately alert the FBI about his disclosures to his personal attorneys once he became aware in June 2017 that Memo 2 contained six words (four of which were names of foreign countries mentioned by the President) that the FBI had determined were classified at the “CONFIDENTIAL” level.
Perhaps the worst-seeming allegation is that Comey didn’t inform the FBI when he found out that information he had shared with his lawyers had since been classified. However, the details matter. Comey found out about the post hoc classification on June 7, 2017; the next day, he testified before Congress, revealing that he had shared a memo with a friend. The report explained:
Based on Comey’s testimony, FBI leadership knew that Richman was the friend to whom Comey had disclosed Memo 4 with instructions to provide its contents to The New York Times. Baker and Strzok immediately called Richman, while Comey was still testifying, to make arrangements to retrieve Memo 4. It was only through the FBI’s conversations with Richman on June 8 or June 9 that the FBI learned of the need to retrieve classified information, contained in Memo 2, as well as other FBI records, Memos 6 and 7, from each of Comey’s three attorneys.
So within a few days, the FBI became aware that Comey had unintentionally shared six since-classified words in confidence with his attorneys. As stated, the department doesn’t believe this was a violation of the law. It was only a violation of policy for Comey not to inform the bureau sooner. You can wag your finger at Comey over this if you like, but as a former member of the Justice Department, he wasn’t obligated to bend over backward to follow the department’s policies anymore.
To understand some of the other criticism, it’s important to recognize the distinction between “sensitive” and “classified” information. As before, it is a crime to knowingly and intentionally release “classified” information; however, it is just against department policy to release sensitive information, such as that which pertains to an ongoing investigation. This is the other serious complaint the IG had with Comey. In particular, he released information about the ongoing investigation of Flynn — that Trump had asked him to drop the case. And again, this information wasn’t classified, it was only a part of Comey’s professional responsibility not to release it. But it’s understandable that staying with the strict lines of DOJ policy was no longer Comey’s priority, given that he suspected corruption at the top of the executive branch — corruption that was, as it happened, the precise reason he was no longer professionally bound to follow DOJ policy.
The other allegation is, it seems to me, the most obviously trivial. Horowitz dings Comey for not turning over the memos he made of his interactions with Trump. Comey claims that he believed the memos were personal, rather than professional, but the IG argues that this claim is baseless, and I’ll grant that it is. Nevertheless, Comey may genuinely have been mistaken, and this seems to be a rather mild complaint — that a former employee didn’t promptly return bureau materials that were, in the end, handed back over to the FBI. Employment contracts may have endless fine print about proper conduct once one is terminated, and few are likely to be able to confidently state that they have fastidiously followed all the rules of their former bosses.
What Horowitz really seems to mind is that, as a private citizen, Comey took it upon himself to go outside DOJ policy to try to effect a special counsel’s investigation. And anyone can see why the inspector general of the department might bristle at this idea. But it completely removes the actions from the context they were in: Trump had just fired Comey — a potential act of obstruction of justice, and at a second in a series of such acts — who was overseeing a national security investigation into the president’s campaign.
Horowitz said that there were other avenues Comey could have pursued achieve his objective, but this is a wishful counterfactual. At the very least, Comey had good reason to believe that there needed to be more public pressure on Deputy Attorney General Rod Rosenstein to preserve the integrity of the investigation. Going to the IG or simply making the case for a special counsel without revealing his personal knowledge would have been unlikely to achieve this — he reasonably could have believed he would be brushed off or dismissed as having sour grapes about his firing. Trump, after all, was still officially in charge of the whole Justice Department. Comey knew what was needed to call for a special counsel, and he took the (legal!) steps needed to achieve it. There are few formal structures in place for the department to respond to potential presidential misconduct, and it’s reasonable to think that any satisfactory response may fall outside normal procedures.
Comey was facing a unique challenge of historical significance. And in the course of it, he violated some policies of the employer from which he had already been fired and to which he was no longer formally bound.
And in the Mueller report, Comey was vindicated. Mueller’s rather circuitous reasoning nevertheless reveals decisively that Trump repeatedly tried to obstruct justice during the Russia investigation. Some of those obstructive acts include subsequent efforts to fire Mueller — just like he had fired Comey. This all indicates that Comey was right when he concluded his firing was a serious breach, and it needed to be investigated.
Horowitz warns that it could be “dangerous” if others in the FBI see Comey as a role model. But just as plausibly, it could be dangerous if they think following DOJ policy to the letter is always warranted. Obviously, we don’t want law enforcement violating the rights of civilians whenever they think that will lead to the greater good. But we also don’t want them thinking that they should always stick to the rulebook if the rules were written to protect the powerful.
Matthew Miller, a former spokesperson for the Justice Department under President Barack Obama, succinctly summarized the misguided nature of Horowitz’s probe.
“This is perhaps the stupidest investigation the IG has ever done, and one of its dumber conclusions. Talk about fiddling while Rome burns,” he said on Twitter. “The IG has basically faulted Comey for speeding on his way to tell the village that a fire was coming. Such a narrowly-scoped view of the world.”