The Russia Hoax

by Gregg Jarrett

  Comey’s Theft of Government Documents

  For years, James Comey carefully cultivated a public portrait of himself as a grown-up Boy Scout—honest and morally straight. The truth is quite different. His actions belie the virtuous image he sought. It was all an illusion designed to mask the kind of conduct that most people find reprehensible. The record shows that he was less than honest, engaged in acts of questionable legality, and abused his power to further his ambitions.

  One of the more stunning moments during Comey’s testimony before the Senate Intelligence Committee in June 2017 occurred when he confessed that he deliberately leaked to “a friend” the contents of the presidential memorandums memorializing his conversations with Trump.59 He directed that friend, Daniel Richman of Columbia Law School, to leak the information to the New York Times with the objective that it would trigger the appointment of a special counsel to investigate the man who had just fired him. It was a devious scheme, to be sure. Comey knew the media would be more than willing to trash Trump by contorting the memos’ contents and misconstruing the law to accuse the president of obstruction of justice. Journalists and pundits did not disappoint.

  The opening sentence in the Times story on May 16, 2017, did not recite facts derived from the memos, but drew an unsupported conclusion that “President Trump asked the FBI director, James Comey, to shut down the federal investigation into Mr. Trump’s former national security adviser, Michael T. Flynn, in an Oval Office meeting in February.”60 Ipso facto, obstruction. The headline was nearly identical to the first line. Thus, anyone who did not read past the title of the story or the opening sentence was led to believe that Trump had probably committed a crime.

  Of course, this is not what happened in the February meeting, according to Comey, who testified on June 8 about his conversation with Trump, narrating the encounter from his memos. Indeed, at the congressional hearing, Comey specifically quoted Trump’s vague comments about Flynn as “hoping” he would be cleared.61 That is not the same thing as “asking to shut down” an investigation, as the Times would have its readers believe. The Times story went on to raise the specter of obstruction and, sure enough, the next day Comey’s longtime friend and ally Robert Mueller was appointed special counsel. For the fired FBI director, it was mission accomplished. His media leak achieved his desired purpose.

  In defense of his actions, Comey offered an explanation that was, in equal parts, erroneous and obtuse. He claimed that the seven presidential memos he took with him when he was fired were his personal property. If he believed that, he is not much of a lawyer. The FBI’s policy manual states quite clearly that documents or records generated during official duties are government property.62 The FBI Employment Agreement, to which Comey was bound, mandates that “all information acquired by me in connection with my official duties . . . remain the property of the United States of America.”63

  Under both the Federal Records Act and the Privacy Act, any document or record composed by government employees during the course and scope of their employment is not the property of the person who authored the document, but the property of the government.64 This is especially true if the material was prepared on a government-owned computer and written during the normal work hours while the employee is on the job performing the duties of his job, as was the case with Comey’s presidential memos. His discussions with the president arose directly from his position as head of the FBI. These records laws apply to classified and unclassified documents alike. Furthermore, in his testimony before the Senate Intelligence Committee on June 8, 2017, Comey admitted that he wrote the memos so that they could be “discuss(ed) within the FBI and the government.”65 This is an admission that these documents were not his personal property. Records that are composed for government use are automatically government property.

  The fact that Comey did not want to leak the memos himself, but chose a conduit or middleman to do so covertly at his behest, is substantial proof that he knew what he was doing was wrong and illegal. By using a third-party to do the dirty work, Comey was trying to circumvent the law to insulate himself from criminality. He failed.

  18 U.S.C. 641 makes it a felony punishable by up to ten years in prison to give someone outside of government an unclassified, but protected, record without authorization:

  Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record . . . of the United States or of any department or agency thereof . . . shall be fined under this title or imprisoned not more than ten years.66

  This is precisely what Comey appeared to have done “converting” to his own use and in conveying to his friend, without authorization, his presidential memos which were government records.

  Having been fired, Comey stole government records with the intent to leak them for his benefit. In an obvious act of retribution, he wanted the documents to inculpate Trump in a special counsel investigation and, he hoped, generate a criminal charge of obstruction of justice. This scheme to benefit himself and harm the president also may have violated at least two federal regulations, including this one identified in the Code of Federal Regulations:

  An employee shall not engage in a financial transaction using nonpublic information, nor allow the improper use of nonpublic information to further his own private interest or that of another, whether through advice or recommendation, or by knowing unauthorized disclosure.67

  Under the law, it does not matter that Comey was an ex-employee when he leaked the documents because he maintained custody of them when he was still employed, then took them out of the FBI building to use for his own devices. This was a direct violation of FBI regulations which state, “FBI personnel must surrender all materials in their possession that contain FBI information upon FBI demand or upon separation from the FBI.”68 Comey did not do this. He converted government property to his own use, then disseminated it to the public.

  Comey must have known that he was likely breaking several laws and committing felonies. As FBI director, he was legally obligated to adhere to the bureau’s standard nondisclosure contract in which all personnel promise not to disclose the very type of records and information Comey leaked. The agreement specifically warned that employees are subject to “criminal sanctions . . . and personal liability in a civil action at law . . . and the disgorging of any profits arising from any unauthorized publication or disclosure.”69 Separation upon termination did not render the contract null and void. It was a binding, enforceable, and actionable contract regardless of job status. Under the terms, Comey agreed he could be sued and face criminal prosecution. Since his firing, Comey published a book quoting from the memos he filched. This enabled him to profit handsomely from his wrongful actions, pocketing millions of dollars. If the FBI contract were to be enforced, Comey could—and should—lose earnings derived therefrom.

  The Comey-composed memos themselves recited discussions with the president that were both privileged and contained information involving an ongoing FBI investigation into Flynn’s contacts with Russia. This means Comey appeared to have broken yet another law, punishable by up to ten years in prison. 18 U.S.C. 793 makes it a crime to “willfully communicate or transmit national defense information,” even though it is not neccesarily classified when written.70 While the full contents of the partially redacted memos made public so far do not deal directly with national defense matters, the overall Flynn investigation did.

  Comey’s chicanery was laid bare in his congressional testimony when he told the Senate Intelligence Committee that he deliberately wrote some of his memos as “unclassified” documents. Making them classified, he told the committee, “would tangle them up.”71 In other words, he manipulated the classification system to exploit the political damage his documents might cause, while concomitantly attempting to shield himself from criminal charges. But this may be a moot point if any of the seven memos Comey took with him contained classified information, regardless
of how he might have labeled them or, more aptly, mislabeled them. Under law, the content dictates classification, not the markings.

  Sometime in late 2017 or early 2018, the FBI advised the Senate Judiciary Committee that the majority of the memos were, in fact, “classified.”72 Chairman Charles Grassley, one of the few people who gained access to the memos, revealed that four of them were “marked classified at the ‘Secret’ or ‘Confidential’ levels,” a fact that was confirmed when the memos were released.73 Richman told Fox News that he received four of the seven memos.74 This means that Comey appears to have given his “friend” at least one “classified” document.

  Giving “classified” records to an unauthorized person and/or storing them in an unsecured venue constitutes several felonies—the same crimes Hillary Clinton surely committed. For example, 18 U.S.C. 1924 states as follows:

  Whoever, being an officer, employee of the United States . . . becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than five years, or both.75

  Comey appears to have done this. He admitted he knowingly removed presidential memos without authority from FBI headquarters, kept them in what must have been an unauthorized location, then conveyed at least four of them to his “friend,” Richman. As director of the FBI, he knew that at least some of their contents were both privileged and might well be classified. It would be folly for Comey to argue they were not classified since the FBI insists they are. If Comey deliberately mismarked them, he cannot use his own wrongful act to insulate himself from criminal prosecution.

  In the alternative, let’s assume for the sake of argument that Comey’s handling of the documents was “grossly negligent,” instead of “knowing” or “intentional.” That would be the same crime for which Clinton should have been charged, 18 U.S.C. 793(f).76 The irony is lost on no one. Comey appears to have committed the identical felony as Clinton, and it was Comey who contorted the law to absolve her of this crime, as explained in chapter 2.

  But the story of Comey’s machinations does not end there. Days after the presidential memos were released to the public, it was learned that Richman had worked for Comey at the FBI as an unpaid “special government employee.”77 Comey concealed this important information from Congress during his June 2017 testimony, later dismissing this fact as “irrelevant.”78 Moreover, Comey failed to disclose that another person, Patrick Fitzgerald, also reportedly received memos.79 Fitzgerald is a former U.S. Attorney and special counsel who, like Richman, is a friend of Comey. Both Richman and Fitzgerald have since been hired by Comey as his lawyers.80 And so, too, has another lawyer, David Kelly, to whom Comey gave one or more memos.81 This means that the fired director can invoke the attorney-client privilege to try to protect some or all of their communications about the memos.

  The FBI was sufficiently concerned about Comey’s dissemination of classified information that agents conducted a search of Richman’s office to retrieve documents and contain the leak.82 It is unknown whether the same “spillage clean-up” occurred at Fitzgerald’s office and, perhaps, Kelly’s, as well. These corrective actions by the FBI suggest that classified information may well have been shared by Comey in violation of federal law.

  When Comey was questioned by senators in a June 2017 hearing before the Intelligence Committee, he omitted these relevant and important details in his answers about his leak of the memos. Under 18 U.S.C. 1001, it is a crime to give false or misleading statements in a legislative proceeding.83 “Concealing material facts” in response to questions under oath before Congress would constitute misleading statements in violation of that statute.

  Congress has been investigating Comey for a series of other suspected deceptions made during testimony before various congressional committees. In one instance, he told the House Judiciary Committee, under oath, that he decided not to refer criminal prosecution of Clinton only after she was interviewed.84 Yet, documents uncovered later indicated he made the decision well before the interview.85

  Comey insisted that Loretta Lynch, the attorney general, never knew of his decision to clear Clinton in advance of his public announcement.86 Yet, text messages exchanged between Peter Strzok and Lisa Page suggested that Lynch had been apprised in advance.87 Comey also testified that, while FBI director, he never authorized leaks to the media about the two presidential candidates.88 Yet, a subsequent statement by his deputy director, Andrew McCabe, appeared to contradict Comey.89

  Finally, the Senate Judiciary Committee sent a letter to the Justice Department’s inspector general accusing Comey of “apparent material discrepancies” in his testimony about the FISA warrant applications, asking whether this was “a deliberate attempt to mislead.”90

  There is substantial evidence that Comey did not tell the truth on several occasions and may have violated numerous federal statutes governing the theft of government documents, including classified material. He may also have obstructed justice in the Hillary Clinton email case and violated the law by deceiving the FISA court in a warrant to spy on an American citizen.

  Days after Comey published his book and commenced his publicity tour, it was learned that the inspector general at the Department of Justice was investigating whether Comey mishandled classified information contained in the presidential memos he gave to his “friend” that was then leaked to the media.91 If he broke the law, he should be held accountable.

  Former independent counsel and U.S. Attorney Joe diGenova was blunt in his assessment of Comey:

  I don’t think there’s any doubt that Comey committed multiple crimes. If the Justice Department wants to pursue them vigorously and fairly like they would with any other citizen, he should be indicted for his false testimony on Capitol Hill and for his obstruction of an investigation.92

  Far from the image of an honest and honorable Boy Scout, the evidence is compelling that James Comey sought to mislead, deflect, and deceive. He also appears to have abused the powers of his office to exact punishment on the president who fired him. His plan to convert presidential memos for his own use, then leak them to the media to damage Trump suggests a willingness to defy rules, regulations, and federal laws with impunity.

  Perhaps Comey felt he could get away with it because he successfully engineered the appointment of his close friend Robert Mueller as special counsel to pursue potential charges against the president.

  Chapter 11

  The Illegitimate Appointment of Robert Mueller

  The primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done.

  —CANONS OF PROFESSIONAL ETHICS, CANON 5 (1908)

  Ages ago, the legendary criminal defense attorney Clarence Darrow gazed back on his long career as a central figure inside America’s courtrooms and sadly observed to a reporter, “There is no such thing as justice—in or out of court.”1

  As a young lawyer filled with idealism, I thought he was wrong. Nearly four decades later, I fear he was right. I was naïve. Darrow knew through experience that, all too often, prosecutors are willing to abandon their ethical duty to see that justice is done. Instead, emboldened by their powers, they become consumed by a zeal to win, sometimes at any cost. Fairness and justice are secondary to the goal of gaining a conviction. The law, Darrow concluded, had evolved into a “horrible business.”2

  Exhibit A in support of Darrow’s thesis is the appointment of Robert Mueller to serve as special counsel. The facts and circumstances did not warrant a special counsel. The regulations governing his selection were misused. His authority exceeded the limits intended. And Mueller, himself, was so stricken with conflicts of interests that he should never have accepted the position. His determination to forge ahead, notwithstanding these legal obstacles, demonstrates that considerations of justice were a me
re nuisance, if not irrelevant.

  To put it as succinctly as possible, Mueller launched an investigation in search of a crime—any crime. This is backwards. Under regulations authorized by law, there must first be an identifiable crime specifically stated and accompanied by some evidence that such a crime may have been committed by someone. Mueller would then be empowered to question witnesses, examine records, and gather documents to resolve whether any charges should be brought. However, this legal requirement was not met when the special counsel was appointed. This makes his endeavor a lawless or illigitimate one.

  Mueller has a long track record of loyal service to our nation, and many trust him to be fair and impartial, as if that excuses an improper appointment. The team of lawyers he hand-picked to assist him is as riddled with conflicts of interest as he is.

  Mueller’s Appointment Was Invalid

  After taking office as attorney general, Jeff Sessions incorrectly disqualified himself from any investigations involving Russia and the 2016 campaign. He was not required to do so, as detailed in chapter 9. However, his mistaken recusal meant that the deputy attorney general, Rod Rosenstein, became “acting attorney general” on all matters involving Sessions’s disqualification.

  On May 17, 2017, Rosenstein decided to appoint Robert Mueller as special counsel. The authority to make an appointment is derived from federal statutory law (28 U.S.C. 515), and defined by the Code of Federal Regulations, 28 C.F.R. 600.1 which states:

  The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted.3

  These regulations are codified into law known as administrative laws. All government employees, regardless of rank or position, are required to follow and uphold them. This particular regulation makes specific reference to a “criminal investigation.” To conduct one, there must first be some evidence that a crime might have been committed to warrant the investigation. When Mueller was appointed, there was no suspected crime. Moreover, no other campaign-related statutes had any relevance to the known facts involving activities in the Trump campaign.