|MARK PETERSON / THE NEW YORKER|
What with Hurricane Dorian barreling toward the U.S., yet another mass shooting and the kickoff of the college football season, you probably missed the Department of Justice inspector general's new report on former FBI Director James Comey's leaked memos on his . . . uh, interactions with Donald Trump. Or like many people, you have reached your Russia scandal exhaustion limit.
Too bad, because as impartial as IG Michael Horowitz has been in general regarding Comey's sometimes problematic conduct, hidden in the report is a bombshell conclusion fitting for these tortured times in an Orwellian sort of way -- that a witness, in this instance a federal law enforcement officer, to gross misconduct by the president of the United States has a duty to keep his mouth shut.
This is the second time Comey has been in Horowitz's crosshairs.
The triggers in both instances were, lest we need reminding, a vengeful president and compliant Republican congressional helpmates who have gone to extraodinary lengths to try to curtail investigations into Russia's interference in the 2016 election and Trump's complicity in that assault on the bedrock of American democracy.
The first was a 500-page report released in June 2018 on Comey's handling -- or mishandling, if you will -- of the Hillary Clinton email investigation, including Comey's outrageous announcement 11 days before the election that the FBI had reopened its investigation into the emails after having more or less exonerated Clinton months earlier.
The revelation, combined with Russia's collaboration with WikiLeaks on hacked Democratic emails and the Kremlin's wickedly successful social media disinformation campaign in key swing states, handed Trump an Electoral College victory over Clinton, the onetime runaway favorite to clobber the billionaire reality TV star.
The June 2018 report concluded that Comey was "insubordinate" in his handling of the Clinton email investigation but did not challenge Comey's decision to not prosecute Clinton and found that decision was not a result of political bias. It was a somewhat hollow victory for the headstrong Comey and a loss for Trump, who had wanted the scalps of both Comey and Clinton.
The long-anticipated second report, a mere 62 pages and released by Horowitz last Thursday, merely fleshes out what has been long known about seven memos Comey had written on his interactions with Trump, including Trump's unsuccessful efforts to strong arm him into going easy on Michael Flynn, Trump's short-lived national security advisor, and announce that Trump himself was not under investigation as the FBI was digging deeper into the Trump campaign's interactions with Russians.
(For details of the memos, see the entries for January 6 and 27, February 8 and 14, March 30 and April 11, 2017 on my Russia scandal timeline.)
Comey had leaked his notes on the memos to The New York Times through a third party after his May 2017 firing, infuriating Trump, who repeatedly claimed that they contained classified information, an allegation he had repeatedly if falsely made of the Clinton emails during his "Lock Her Up!" campaign rally rants.
Horowitz concluded that Comey violated FBI policy by failing to turn over the memos after Trump fired him and later leaking details of them to The Times, although the Justice Department will not prosecute Comey for again doing things his way. Most importantly, the report again put the lie to Trump and the Russia Hoax/Deep State Conspiracy mob that the memos contained classified information.
The IG found "no evidence" that the memos contained classified information, which silenced neither the president or his sycophancy, who continue to scream with breathtaking dishonesty that they did.
You have to dig down through several layers of Horowitz's report to find what is so jaw-dropping.
Comey did not consider these memos to be FBI records but personal ones to aid his own memory. So in addition to keeping copies at the bureau, where he shared them with close advisers, he stored them in his personal safe at home.
Yet Horowitz determined that although Comey broke no laws in his whistleblowing, it is misconduct for a federal law enforcement officer to publicly disclose gross misconduct even if it is an effort by the president to shut down an investigation into his own conduct.
It should be emphasized that Horowitz is that rarest of Justice Department officials in the Age of Trump who has not bowed completely to the president's above-the-law agenda as has the attorney general, Trump lawn ornament William Barr, whose signal achievement has been his whitewash of the Mueller report. Then again, Horowitz was appointed by Barack Obama.
Nevertheless, Horowitz views Comey's personal possession and leaking of his memos with alarm although virtually everything in them already had been revealed through news media stories and they portrayed a president desperate to cover up his misconduct. Horowitz's alarm should, in turn, alarm anyone who values the right of a fed to blow the whistle on attempts to cover up illegal behavior, especially when it involves the chief executive.
As Benjamin Wittes writes at Lawfare:
And there it is: the inspector general of the United States Department of Justice taking the position that a witness to gross misconduct by the president of the United States has a duty to keep his mouth shut about what he saw. Remember, after all, that Comey was a witness here as well as the former FBI director. That's an extraordinary position for a law enforcement organization to take.The full outlines of the Russia scandal -- as the report by Special Counsel Robert Mueller reveals -- are enormous.
The report states that Trump and 18 of his associates had at least 140 contacts with Russian nationals and WikiLeaks, or their intermediaries, there are at least 10 instances when Trump tried to obstruct justice, most prominent his sacking of Comey, and that his unceasing scheming to end the investigation Mueller inherited from Comey was driven by his belief that the intelligence community's conclusive determination of Russian interference threatened the legitimacy of his election.
To which we add, of course, that Mueller did not call for criminal charges against Trump because of a questionable Justice ruling that a sitting president cannot be indicted.
"James Comey is in the habit of departing from established rules and procedures when he believes unique circumstances and his own sense of his own rectitude require it," as Josh Marshall puts it at Talking Points Memo. "We know from his actions at the end of October 2016 that this can lead to outcomes which are both substantively and procedurally catastrophic."
Yet in the instance of his leaked memos, the ever complex Comey did us and the cause of justice a big favor. The Horowitz report is a mere footnote to the Russia scandal, but its criticism of the former FBI director's actions are troubling.
Comey did the right thing. Horowitz did not.