Comey during an April 2018 interview for ABC News. | Ralph Alswang/Walt Disney Television via Getty
Michael Horowitz criticized Comey for setting a “dangerous example.”
What should the former FBI director do if he thinks the president is executing a corrupt cover-up?
James Comey’s answer, in 2017, was to have allegations laid out in a memo documenting concerning conduct by the president given to the New York Times. Comey’s goal was to create a public uproar that would result in a special counsel being appointed — and indeed, Robert Mueller got the gig one day later.
But Justice Department Inspector General Michael Horowitz opines in a new report that Comey really should not have done that.
Leaking “sensitive information” to the press “set a dangerous example,” Horowitz writes. “It is of utmost importance that all FBI employees adhere to Department and FBI policies, particularly when confronted by what appear to be extraordinary circumstances or compelling personal convictions.”
Horowitz’s new report is a review of Comey’s handling of those memos he wrote about his interactions with President Donald Trump in early 2017: The memos documented exchanges Comey found highly concerning, including Trump’s request for Comey’s “loyalty” at a private dinner and Trump’s urging of Comey to drop an investigation into Michael Flynn.
To Trump critics, Horowitz’s criticisms seem blinkered and dismissive of the bigger picture — the president’s own shocking and arguably illegal conduct. “The IG has basically faulted Comey for speeding on his way to tell the village that a fire was coming,” Matt Miller, a former spokesperson for Obama’s Justice Department, tweeted. “Such a narrowly-scoped view of the world.”
But while at times harsh on Comey, the report does not go as far as some conservative journalists had claimed it would. Specifically, there is no finding that Comey lacked candor in his answers to investigators, and Horowitz writes that there is “no evidence” that Comey leaked any classified information to the media. For that, Comey claimed vindication.
DOJ IG “found no evidence that Comey or his attorneys released any of the classified information contained in any of the memos to members of the media.” I don’t need a public apology from those who defamed me, but a quick message with a “sorry we lied about you” would be nice.
— James Comey (@Comey) August 29, 2019
And to all those who’ve spent two years talking about me “going to jail” or being a “liar and a leaker”—ask yourselves why you still trust people who gave you bad info for so long, including the president.
— James Comey (@Comey) August 29, 2019
What are the Comey memos, and why do they matter?
Between January 2017 and April 2017, then-FBI Director Comey wrote seven memos chronicling interactions with Trump that he found noteworthy or disturbing. (You can read them, in mostly unredacted form, at this link.)
The first memo chronicles Comey’s briefing of President-elect Trump about the Russia investigation (and the infamous “pee tape” allegations). But Comey said he had no intention of memorializing all his conversations with the new president until Trump invited him to a private dinner on January 27, 2017, and said some things he found concerning. (“I need loyalty,” Trump told him.)
The most important memo, however, chronicles a now-infamous interaction between Trump and Comey on February 14, 2017 — the day after Trump had fired National Security Adviser Michael Flynn. After an Oval Office briefing with several other aides, Trump asked everyone but Comey to leave the room, and told him he wanted to “talk about Mike Flynn.”
Flynn had been fired amid controversy over reports about his contacts with Russian Ambassador Sergey Kislyak during the transition. Flynn had insisted he hadn’t discussed the topic of sanctions with Kislyak — including to FBI agents who asked him about it. Now, he was facing a potential criminal investigation for this.
Trump told Comey, per the memo, that Flynn didn’t do anything wrong. “I hope you can see your way clear to letting this go, to letting Flynn go,” he said. “He is a good guy. I hope you can let this go.” Comey viewed this as an inappropriate attempt to get him to drop the Flynn investigation.
About three months later, on May 9, 2017, Trump suddenly fired Comey as FBI director, a shocking move that raised questions about whether he was trying to end the Russia investigation and corrupt the Justice Department.
Comey shared these fears, and wanted to do something about it — to try to ensure the appointment of a special counsel who could carry out the investigation without corrupt political interference. He had a copy of the memo chronicling Trump’s request that he drop the Flynn case in a safe at home. So he took pictures of the memo, sent them to a trusted friend, and asked his friend to share the memo’s contents (but not the full document) to the New York Times’s Michael Schmidt.
Schmidt’s bombshell report was headlined: “Comey memo says Trump asked him to end Flynn investigation.” And the day after it was published, Deputy Attorney General Rod Rosenstein appointed Robert Mueller as special counsel.
What the inspector general concluded
Shortly afterward, the Justice Department’s inspector general, Michael Horowitz, began looking into Comey’s handling of these memos, including whether he’d improperly leaked sensitive or classified information.
Horowitz was confirmed to the IG post (an internal watchdog role) in 2012, under the Obama administration. He was a nonpartisan figure who had deep roots in the department and had worked under presidents of both parties. His reputation was as a vigorous investigator who takes his job quite seriously — “straight shooter” is one of the most common phrases used to describe him.
Last year, Horowitz completed a high-profile report reviewing Comey and other FBI officials’ conduct around the Clinton email investigation and the 2016 investigation. There, he was highly critical of Comey’s public statements on the email probe, finding that he “usurped the authority of the Attorney General,” “chose to deviate” from established procedures, and engaged “in his own subjective, ad hoc decisionmaking.” And in this new report on Comey’s memos, he came to similar conclusions.
Some of the report criticizes Comey based on technicalities about the handling of small amounts of classified information — something Hillary Clinton would certainly find ironic. For instance, the FBI retroactively deemed “six words” in a certain memo about “President Trump comparing the relative importance of returning telephone calls from three countries” to be classified. Horowitz chides Comey for ”failing to immediately notify the FBI” that he had shared this memo’s six now-classified words to his attorneys.
But Horowitz saves his strongest criticism for Comey’s decision to have one memo’s contents leaked to the New York Times.
“Comey violated FBI policy and the requirements of his FBI Employment Agreement when he chose this path,” Horowitz writes. This memo was relevant to both the ongoing investigation into Flynn and as documentation of a potential attempt to obstruct the Flynn investigation. “Rather than continuing to safeguard such evidence, Comey unilaterally and without authorization disclosed it to all.”
Comey argued to Horowitz that he felt the issue was of “incredible importance to the Nation, as a whole” and that he felt leaking the information was “something I [had] to do if I love this country.”
But Horowitz responds: “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.”
Horowitz mentions that Comey could have disclosed the information to the inspector general’s office, to the DOJ or FBI Office of Professional Responsibility, to the FBI Inspections Division, or to Congress. He also could have urged the appointment of a special counsel publicly without leaking “law enforcement information,” Horowitz says.
In other words: He should have gone through the proper channels. Comey, however, says he didn’t do this because he no longer trusted the Justice Department’s leadership under Trump.
(Horowitz, we should note, also referred Comey’s conduct for DOJ prosecutors to assess, but they declined to bring any criminal charges.)
In extraordinary circumstances, you’d better stick to the rules, Horowitz says
The key long-running disagreement between Comey and Horowitz is whether unusual circumstances warrant unusual methods — or whether, in unusual circumstances, it’s even more important to rigorously stick to the ordinary rules and procedures.
Comey was deeply concerned about the perception of impropriety in the Clinton email case, because Attorney General Loretta Lynch had talked with Bill Clinton on a plane. So he decided to cut out DOJ from his decision-making entirely and make his own, highly unusual public announcement criticizing Clinton’s behavior, but saying he wouldn’t recommend charges.
After that, Comey was deeply concerned with Trump’s behavior, and viewed it as a grave threat to the rule of law in the United States.
But Horowitz’s response is, essentially: That’s just, like, your opinion, man.
The inspector general argues that if any FBI employee followed Comey’s lead and let the leaks flow when they had strong views about something, that would be a disaster.
“Comey set a dangerous example for the over 35,000 current FBI employees — and the many thousands more former FBI employees — who similarly have access to or knowledge of non-public information,” he writes. “Were current or former FBI employees to follow the former Director’s example and disclose sensitive information in service of their own strongly held personal convictions, the FBI would be unable to dispatch its law enforcement duties properly.”
Say what you will about Horowitz’s viewpoint, but at least it’s consistent. He doesn’t think Comey should have colored outside the lines in the Clinton case, and he doesn’t think Comey should have colored outside the lines regarding Trump.