So much for the former FBI director perp walk, eh? Despite receiving a referral from Inspector General Michael Horowitz over the matter, the Department of Justice will not prosecute James Comey for the leaks of his memos to the New York Times through a cut-out. The timing of the classification on the memos made it nearly impossible to take to court, explained Fox News’ source at the DoJ:
“Everyone at the DOJ involved in the decision said it wasn’t a close call,” one official said. “They all thought this could not be prosecuted.” …
DOJ Inspector General Michael Horowitz had referred Comey for potential prosecution as part of an internal review.
But one of the key factors leading to the DOJ declining to prosecute apparently was the fact that the two memos were labeled “confidential” after he set in motion the chain of events that led to them ending up with the press.
That’s an interesting position for the DoJ to take, given its previous saber-rattling over leaks. Two years ago, Rod Rosenstein was threatening to haul any administration leakers into court to face criminal charges. Speaking specifically about the case of Joint Chiefs vice-chair James Cartwright, Rosenstein argued that prison time should have been the result, if for no other reason than pour encourager les âutres:
“[T]he need for deterrence is strong,” he wrote in a sentencing memo filed Jan. 10, 2017. “Everyday across the United States Government, individuals are entrusted with highly sensitive classified information. They must understand that disclosing such information to persons not authorized to receive it has severe consequences.”
Then-Attorney General Jeff Sessions told Bill O’Reilly that some examples needed to be made to put some disincentives on leakers:
“The leakers in the various agencies, federal agencies—you guys zeroing in on them? Do you think you’re going to have some indictments shortly?” O’Reilly asked.
“I expect we’ll get to the bottom of this,” Sessions replied. “This is not right. We’ve never seen this kind of leaking. It’s almost as if people think they have a right to violate the law, and this has got to end, and probably it will take some convictions to put an end to it.”
In fact, as The Daily Beast noted at the time, Donald Trump wanted Comey himself to start investigating reporters who got the leaks and not just the leakers. That was in the same conversation that Comey ended up documenting in one of the leaked memos, ironically:
Alone in the Oval Office, Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information, according to one of Mr. Comey’s associates.
Mr. Trump then turned the discussion to Mr. Flynn.
After writing up a memo that outlined the meeting, Mr. Comey shared it with senior F.B.I. officials. Mr. Comey and his aides perceived Mr. Trump’s comments as an effort to influence the investigation, but they decided that they would try to keep the conversation secret — even from the F.B.I. agents working on the Russia investigation — so the details of the conversation would not affect the investigation.
With that in mind, how tough would it have been to go after Comey for the leak? Comey has insisted that the memos were his own personal record and not a work product, although since the records related directly and totally to his work as FBI director, that might not have stood up. The timing of the classification would have complicated a prosecution under 18 USC 793, but the nature of the memos would also have been a problem. They don’t relate to “defense information,” or in fact to national security. It might have run afoul of other statutes, but again, one would first have to overcome the “work product” question.
In the end, the decision is most likely a political calculation. A prosecution of Comey for the leak would look like revenge, which it might very well be. If Comey beat the charge, it would look even worse. Better to just have the leak on the record as a permanent asterisk to Comey’s career than to give him the opportunity for vindication.
Besides, the DoJ might have other matters to attend with Comey when Horowitz’ report on Operation Crossfire Hurricane gets published. Fox reports that day is “imminent,” so save up any extra popcorn from the Democrats’ Wokeback Mountain War to pass at the appropriate time.