During a news briefing on Wednesday, Press Secretary Sarah Huckabee Sanders made the administration’s case for prosecuting former FBI Director James Comey from the White House podium.
In making the comments, Sanders is disregarding what was previously an important ethical standard — that the Justice Department has prosecutorial independence. The idea is that the Justice Department should decide who to prosecute based on a unbiased application of the law, not political pressure from the White House. This is something that neither Sanders or her boss seem to value.
“The memos that Comey leaked were created on an FBI computer while he was director,” Sanders said on Wednesday. “He claims they were private property, but they clearly followed the protocol of an official FBI document. Leaking FBI memos on a sensitive case regardless of classification violates federal laws including the privacy act, standard FBI employment agreement, and non-disclosure agreement all personnel must sign.”
“I think that’s pretty clean and clear that that would be a violation,” she added. “I think the facts of the case are very clear.”
Lawyers, however, are in broad agreement that Comey did nothing wrong by sharing an unclassified memo about his interactions with the president with a friend who later shared them with the New York Times.
After Trump first accused Comey of being “a leaker” in June, LawFare looked into Trump’s accusation and found that “there is nothing to suggest his actions were illegal, unethical, immoral, or otherwise inappropriate.” The piece specifically rejects the claim Sanders made on Wednesday — that because Comey prepared the memo on an FBI computer, he violated the law.
The information wasn’t classified. It didn’t plausibly include any “national defense information.” Therefore, the Espionage Act is inapplicable.
As Steve Vladeck notes, the only even remotely plausible statute under which Comey’s conduct might be criminal is 18 U.S.C. § 641, barring the conversion of government property. But, as Vladeck also notes, in U.S. v. Morison (as well as Carpenter v. U.S.) courts determining whether information qualifies as property focus on the financial value. There’s no argument at all here that Comey’s memos had financial value.
[T]he argument this qualifies as conversion of government property under § 641 is laughably thin, regardless of whether the documents qualify as government records or not.
Sanders’ comments on Wednesday drew a quick rebuke from Matthew Miller, Department of Justice spokesperson under President Obama.
— Matthew Miller (@matthewamiller) September 13, 2017
Sanders’ denunciation of Comey on Wednesday came in response a question about similar comments she made during Tuesday’s briefing.
Reading prepared remarks, Sanders said on Tuesday that “Comey by his own self-admission leaked privileged government information.”
“His actions were improper and likely could have been illegal,” she said. “Comey leaked memos to the New York Times.”
Later during Tuesday’s briefing, Sanders reiterated that she thinks the DOJ “should certainly look at” prosecuting Comey.
“I think if there’s ever a moment where we feel someone has broken the law, particularly if they’re the head of the FBI, I think that’s something that certainly should be looked at,” she added.
On Twitter, Miller characterized Sanders’ comments on Tuesday as “suggesting DOJ pursue political retaliation, plain & simple.”
Indeed, as special counsel Robert Mueller’s investigation in the Trump campaign for possible collusion has heated up, Trump and his supporters have repeatedly resorted to smearing Comey and Mueller as a way to take pressure off the president.
After news broke that Mueller is working with an IRS unit that focuses on financial crimes and collaborating with New York Attorney General Eric Schneiderman, Trump took to Twitter to attack Comey for prematurely exonerating Hillary Clinton.
Wow, looks like James Comey exonerated Hillary Clinton long before the investigation was over…and so much more. A rigged system!
— Donald J. Trump (@realDonaldTrump) September 1, 2017
Not only do experts believe that Comey did nothing wrong in that instance as well, but Trump’s allegation wasn’t even consistent with his past statements. His attack on Comey for allegedly being too soft on Clinton came less than four months after Trump justified his decision to dismiss Comey as FBI director by citing a letter making the case that Comey was actually too hard on her.
And it’s not just White House officials who making a public case that Comey did something wrong. On Wednesday, President Trump’s personal attorney, Jay Skeulow, tweeted that he thinks it’s time for former FBI Director James Comey to get a lawyer.
— Jay Sekulow (@JaySekulow) September 13, 2017
Trump, his press secretary and his personal lawyer all appear to be engaged in a systematic effort to pressure Attorney General Jeff Sessions to prosecute Comey.