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Former FBI Director James Comey Saved By America’s Two-Tiered Justice System Of Prosecuting Leaks

When former FBI director James Comey retained, mishandled, and disseminated certain memos from his meetings with President Donald Trump, he violated FBI and Justice Department policies, as well as the FBI employment agreement he signed, according to the department’s inspector general.

However, the inspector general did not recommend prosecution for Comey. That fits into the two-tiered justice system that exists for federal government employees in the United States.

High-ranking officials, like Comey, David Petraeus, Hillary Clinton, and Leon Panetta, each mishandled classified information. They served no jail time.

Meanwhile, low-level government employees like Reality Winner, Terry Albury, Jeffrey Sterling, John Kiriakou, and Stephen Kim have endured prison sentences for their actions.

As detailed in the inspector general’s report [PDF], “Between January 6, 2017, and April 11, 2017, while Comey was director of the FBI, he memorialized seven one-on-one interactions that he had” with Trump.

Comey inappropriately asserted several of the memos were his own “personal documents.” He provided a memo (referred to as “Memo 4”) to Daniel Richman, his attorney, which was passed on to the New York Times. But the FBI had not authorized this disclosure.

The former FBI director “made public sensitive investigative information related to an ongoing FBI investigation, information he had properly declined to disclose while still FBI director during his March 20, 2017 congressional testimony.”

“Comey was not authorized to disclose the statements he attributed to President Trump in Memo 4, which Comey viewed as evidence of an alleged attempt to obstruct the [Michael] Flynn investigation and which were relevant to the ongoing Flynn investigation. Comey clearly considered the contents of Memo 4 highly sensitive—in fact, as he stated in his June 8, 2017, congressional testimony, Comey and other senior leaders of the FBI had decided not to report the President’s statements to the Attorney General or Deputy Attorney General and to keep the President’s statements “very closely held” so that the FBI leadership could “figure out what to do with it down the road as our investigation progressed.”

The report adds, “Comey placed in the public domain evidence relevant to the investigation of Flynn, and what he clearly viewed as evidence of an attempt to obstruct justice by President Trump. Rather than continuing to safeguard such evidence, Comey unilaterally and without authorization disclosed it all. By his own admission, Comey disclosed the contents of Memo 4 in an attempt to force the Department to take official investigative actions—to appoint a Special Counsel and preserve any tapes as evidence.”

Apparently, Comey told the inspector general that he viewed the unauthorized disclosure as one of “incredible importance to the nation, as a whole.” He felt that “taking action was ‘something I [had] to do if I love this country…and I love the Department of Justice, and I love the FBI.”

“Comey’s own, personal conception of what was necessary was not an appropriate basis for ignoring the policies and agreements governing the use of FBI records, especially given the other lawful and appropriate actions he could have taken to achieve his desired end,” the report declares.

Furthermore, as the report concludes, “Comey’s characterization of the memos as personal records finds no support in the law and is wholly incompatible with the plain language of the statutes, regulations, and policies defining federal records, and the terms of Comey’s FBI employment agreement.”

John Kiriakou, a former CIA officer who brought attention to the use of waterboarding and became the target of a leak investigation. He received a 30-month prison sentence in a case, where the Justice Department and Judge Leonie Brinkema expanded the definition of “espionage” under the Espionage Act to aid the prosecution against him.

“Judge Brinkema said that the definition of espionage was providing national defense information to any person not entitled to receive it,” Kiriakou recalled. “What the [inspector general] said in this long awaited report was that, despite the fact that James Comey said the information was unclassified, it was actually classified at the confidential level because it contained the names of countries that Trump had raised in the conversation. So, what Comey did is he illegally released classified information. That is the very definition of espionage.”

Indeed, the inspector general report recounts how “Memo 2” specifically included a “comparison of three countries” by Trump that could be viewed as “disparaging.” To ensure a “foreign incident” was not accidentally caused, that information was deemed to be classified like similar information that was involved in the Clinton email case.

NSA whistleblower Thomas Drake was accused of improperly retaining documents in his case. He faced a prosecution that ultimately collapsed, however, at one point, he was faced with the potential of serving decades in prison.

Kiriakou said if a CIA employee had improperly retained documents, “that would have been immediate cause for dismissal.”

“When you are an official American, you are acting in an official capacity. You are carrying out your official government duty. Your notes, anything that comes from your brain, belongs to the U.S. government,” Kiriakou added.

On one hand, it appears Comey offered up a kind of whistleblower defense for his actions, even though he previously was involved in aggressive prosecutions of low-level government employees. If he plans to do a complete about-face and support those individuals who released information and faced punishment, then his words are welcome.

But Kiriakou did not believe that he had a change of heart on these types of cases. What Comey said to the inspector general was part of an effort to “save his own skin and [try] to convince the American people that he didn’t illegally leak information.”

Anyone of these lower level employees could argue they engaged in their disclosures because they love the United States.

NSA contractor Reality Winner released an NSA report, which she believed at the time contained evidence of Russian interference in U.S. voter registration databases. Terry Albury disclosed records that showed the way in which the FBI engages in racial profiling when pressuring people to become informants. Either could say they did so because making the information public was important to “the nation, as a whole.”

Yet, President Donald Trump’s administration prosecuted them, and they are both in prison.

“Why the double standard? Why does James Comey get special treatment? What makes James Comey special?” Kiriakou asked.

Certainly, Kiriakou could say he loved his country and the CIA. He did not want the agency to become an agency that was the business of torture.

Drake loved his country. He did not like the way the country was morphing into a surveillance state after the September 11th attacks. He also probably loved the NSA and wanted it to operate within the confines of the Constitution.

Both Edward Snowden, a former NSA contractor, and Chelsea Manning, a former US Army intelligence analyst, released substantial amounts of classified information. The scope of what was released may make this comparison difficult. Still, they released the materials out of a concern for “the nation, as a whole.”

Unfortunately, these individuals were never given an opportunity to make the case that they were not trying to harm the United States in the way that Comey was able to do with the inspector general. They simply were charged with Espionage Act violations and zealously pursued.

In April 2017, it was reported the FBI was tightening restrictions on personnel to crack down on leaks to the press. The following month Comey disclosed one of his memos to his attorney, who passed it on to the New York Times.

Comey himself lectured former CIA officer Jeffrey Sterling, who was sentenced to prison in a leak case in 2015. “He violated his sworn duty to protect our nation’s secrets and he betrayed our country. The FBI will continue to pursue these cases vigorously.”

A hard-nosed prosecutor could argue Comey violated his sworn duty as well. They could say to a judge that Comey betrayed his country. Except such words are typically reserved for low-level employees, particularly those who go against the grain of the political culture within institutions.

Comey during his time as FBI director would have supported the prosecution of any lower level employee, who did what he did. But for any high-ranking colleague, he would have ensured that person never had to face the consequences of flouting the rules just so he would know the same discretion would be shown toward him if he was threatened with accountability.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."