Keep Your Powder Dry, Comey Is Not Out of the Woods

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There is no doubt that Jim Comey was part of a conspiracy to destroy Donald Trump and his Presidency. But all the evidence is not yet on the record. There is some understandable frustration reverberating around the web that Comey is not being indicted in the wake of the latest Inspector General report detailing Jim Comey’s inappropriate and unethical handling of Government material. But that is not the role of the Inspector General. It is up to DOJ to prosecute and a careful reading of the current report makes clear that there was not adequate foundation to get an indictment and prosecute.

However, if you believe that Jim Comey is getting a pass and will get away with corrupt activity, let me suggest you are overreacting and that patience is warranted. Comey is not out of the woods.

My only previous experience with Bill Barr was the role he played in making sure that the two guys who planted the bomb on Pan Am 103 were prosecuted. Barr was a straight shooter and would not cut corners. I also am friends with a person who worked directly for him during that period. That person insists that Barr is not going to let Comey and Brennan and Clapper off the hook. But that person also has reminded me that Barr will do it by the book and do it fairly.

With that predicate, I want you to focus on the core of today’s Inspector General report. It is very simple and concise:

The focus of the OIG’s investigation was to determine whether Comey violated Department or FBI policies, or the terms of his FBI Employment Agreement, in his handling of the Memos during and after his tenure as FBI Director.

Memos 2 and 7 contained small amounts of information classified at the “CONFIDENTIAL” level. The FBI designated Memos 4, 5, and 6 as unclassified, “For Official Use Only.”

Comey was removed as FBI Director on May 9, 2017, Comey still had copies of Memos 2, 4, 6, and 7 in his personal safe at home.

[t]he Inspector General Act of 1978, the OIG provided a copy of [these] factual findings to the Department for a prosecutorial decision regarding Comey’s conduct. . . After reviewing the matter, the Department declined prosecution.

As described in this report, we conclude that Comey’s retention, handling, and dissemination of certain Memos violated Department and FBI policies, and his FBI Employment Agreement.4 

I repeat, Comey violated Department of Justice and FBI policies and violated his FBI Employment Agreement. If he had taken classified memos home and stored them then he would have been indicted. But he did not engage in criminal activity with respect to classified information. He consciously and deliberately took steps to not keep classified information at his house. This is quite different from the conduct of Hillary Clinton, who knowingly and intentionally kept classified information on her unclassified, private server.

Jim Comey is stupidly taking a victory lap over this report and insisting that he is vindicated. I once considered Comey to be a smart person. Clearly he is not. He just pretends to be. His behavior today reveals an immaturity and hubris that confirms why he was fired in the first place as FBI Director.

This is the second Inspector General report that blasts Comey for unprofessional and unethical conduct. Being unprofessional and unethical is not illegal and does not guarantee a prison term.

The Inspector General is building a clear body of evidence that Jim Comey routinely and frequently violated Department of Justice and FBI policies and procedures. I want you to recall what the Inspector General said about Jim Comey and his July 2016 press conference on the Hillary Clinton investigation:

We determined that Comey’s decision to make this statement was the result of his belief that only he had the ability to credibly and authoritatively convey the rationale for the decision to not seek charges against Clinton, and that he needed to hold the press conference to protect the FBI and the Department from the extraordinary harm that he believed would have resulted had he failed to do so.

While we found no evidence that Comey’s statement was the result of bias or an effort to influence the election, we did not find his justifications for issuing the statement to be reasonable or persuasive. We concluded that Comey’s unilateral announcement was inconsistent with Department policy and violated long-standing Department practice and protocol by, among other things, criticizing Clinton’s uncharged conduct. We also found that Comey usurped the authority of the Attorney General, and inadequately and incompletely described the legal position of Department prosecutors.

The same conclusion with respect to Comey’s handling of the Weiner laptop:

We found no evidence that Comey’s decision to send the October 28 letter was influenced by political preferences. . . .

Much like with his July 5 announcement, we found that in making this decision, Comey engaged in ad hoc decisionmaking based on his personal views even if it meant rejecting longstanding Department policy or practice. We found unpersuasive Comey’s explanation as to why transparency was more important than Department policy and practice with regard to the reactivated Midyear investigation while, by contrast, Department policy and practice were more important to follow with regard to the Clinton Foundation and Russia investigations.

Comey’s description of his choice as being between “two doors,” one labeled “speak” and one labeled “conceal,” was a false dichotomy. The two doors were actually labeled “follow policy/practice” and “depart from policy/practice.”

we found it extraordinary that Comey assessed that it was best that the FBI Director not speak directly with the Attorney General and Deputy Attorney General about how best to navigate this most important decision and mitigate the resulting harms, and that Comey’s decision resulted in the Attorney General and Deputy Attorney General concluding that it would be counterproductive to speak directly with the FBI Director.

Why in the world does Jim Comey celebrate being known as the FBI Director who routinely departed from DOJ and FBI policy and practice. He did not follow the rules. He made up rules to suit his personal fancy. The fact that Comey thinks this is a worthy trait tells us everything we know about his lack of character and integrity.

Another critical Inspector General report on Russiagate is still pending and Comey faces great danger on this front. This one will cover the FBI’s conduct with respect to the FISA warrant process. There is no doubt that Jim Comey lied to the FISA court in asserting that the information derived from the Steele Dossier was true and verified. But he will not be alone in this finding. Lying to a Federal court is a charge with weight and teeth. That is still hanging over Comey’s head.

I think DOJ did the right thing in not trying to prosecute Comey over the memos he drafted. It is a nuanced process crime and would be tough to present to a jury. Lying about the FISA warrant is completely different and more profound. Barr’s Department of Justice should prosecute Comey and others on that issue. If they do not, then the cause of justice in our Republic will be dead. It is that simple. Justice is supposed to be blind in terms of not having a preconceived conclusion about guilt or innocence. This also means that your status and wealth should not provide you protection against being held accountable for illegal acts. The jury remains out with respect to what Attorney General Barr will do. I still give him the benefit of the doubt.

Reprinted with permission from Sic Semper Tyrannis.

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