First, Comey, or one of his closest allies or staff members with the FBI, may be, as some commentators have surmised, the leaker. Second, Comey’s conduct is already under review by the Inspector General for his office’s mishandling of the last major political investigation his office undertook. Third, as far as what has come out publicly, it appears Comey failed to speak up about his deputy director, Andrew McCabe’s failure to recuse himself in the Clinton Foundation inquiry, and equally failed to speak up about former Attorney General Lynch’s failure to recuse herself in the Clinton emails investigation. Fourth, Comey’s recent performance before the Committee raised more questions than confidence about both his independence and impartiality in any leaks inquiry.
Four sources govern FBI ethics: the strictures and statutes in the Constitution and Congress; executive orders by the President; federal regulations; and ethical manuals from the Department of Justice, the Office of Government Ethics and the FBI. Comey publicly committed the FBI to “institutional and individual integrity.” As Comey declared in ethical guidance to the FBI: “integrity is the value that binds together the very fabric of our institutional identity. It defines us and what we stand for; it is how we operate and how we measure our success. In short, integrity is the touchstone for everything we do.”
First, under section 45 of title 28 of the code of federal regulations, and repeated in Comey’s own ethical manual for the FBI, “no employee shall participate in a criminal investigation” whenever the individual has either a “personal or political relationship” with “any person or organization substantially involved in the conduct that is the subject of the investigation” or “has a specific and substantial interest that would be directly affected by the outcome of the investigation.”
When someone from Comey’s staff at the FBI (or even Comey himself) could be the leaker, then this poses a direct conflict of interest in the leaks inquiry, and Comey’s complete failure to identify any leaker, or limit those leaks, raises a risk that is the case. Comey refused to commit to an investigation of the illegal leaks. Equally problematic, Comey did not recommend any adverse action for agents who may lie about the President or the public in false leaks to the press. Comey suggested his own officer may be lying to the press about what an investigation found, but declaimed any interest in correcting false stories put out by members of the intelligence community. Section 3-1, part 7 of Comey’s own ethics manual compels all FBI officers to “tell the truth in all matters.” This means not allowing agents “misusing the office” of the agency, or the reputational power of the badge, to lie to the press to smear a disfavored political target, like a Mike Flynn or President Trump. Yet, Comey gave no express remedy for agents engaged in such lying beyond pointing out it’s “not a crime” and saying he wouldn’t correct such lies, under the guise of not wanting to either “confirm or deny” such issues. Unless “the employee’s participation would not create an appearance of a conflict of interest likely to affect the public perception of the integrity of the investigation,” then recusal is required.
Second, Comey’s own published ethics manual admits “the FBI requires employees to report to proper authority any known or suspected failures to adhere to the law by themselves or others.” Comey failed this recusal-reporting test badly during the Clinton investigation. Both Comey’s deputy director, McCabe, and Attorney General Lynch had conflicts that I believe disqualified them from the Clinton investigation, as the aforementioned standards articulate. A person should not be involved in an investigation with anyone they have a “personal or political relationship” with. FBI Deputy Director Andrew McCabe stayed involved in the Hillary Clinton email investigation even after PACs associated with long-time Clinton confidante Terry McAuliffe donated nearly $675,000 to the failed state senate campaign of McCabe’s wife. The breadth of the FBI ethical obligations requires FBI agents “disclose waste, fraud, abuse and corruption to appropriate authorities.” Lynch was clearly close politically to Clinton, and had no business investigating Clinton’s conduct in such a case. Yet, as far as we can tell, Comey said nothing publicly about either, despite the rules requiring remedial action, particularly in the case of McCabe.
Third, under the same public-confidence-in-the-investigation basis for recusal, Comey’s track record is less than inspiring at compelling ethical conduct by those in a political investigation. The unauthorized leaks, conflict-tainted decision making, and inadequate use of investigative resources in the Clinton matters all came under such scrutiny, the Inspector General promised an independent review.
Fourth, FBI Director James Comey’s conduct last week at the Congressional hearings saw him possibly violate numerous ethical commands of his officers. First, a key duty of an FBI agent requires avoiding announcing their mind-reading exercises in public. For example, Comey’s own manual requires public disclosures about ongoing cases “should include only incontrovertible, factual matters, but should not include subjective observations.” Comey was filled with the kind of psychoanalytic, from-a-distance speculation about Russia and Putin that would even put the Hawaii Trump-hating judge to shame. Second, Comey cited unreliable, partial sources that could not be used as credible evidence in court. Comey made claims of hacking servers he admitted the DNC did not even allow him or his team to forensically review. Comey relied on DNC vendor, and Russia-phile, organization Crowdstrike, even when informative tech industry experts revealed Crowdstrike had a history of questionable accusations concerning Russia, and Crowdstrike received funding from the DNC. This compounds complaints from Senators that Comey tried to put the author of the discredited dossier on the FBI payroll, the same dossier Bob Woodward even called garbage. This all culminated when Comey came under further scrutiny after Congressional Intelligence Committee Chairman Nunes reported intercepts of Trump communications less than 48 hours after Comey reported he knew of “no information” to support Trump’s tweets about wiretapping of Trump or Trump Tower.
In our modern age, all electronic communication uses what the law defines as “wires” to transmit messages. This has allowed the federal government to dramatically expand its jurisdiction in a range of civil and criminal matters, through authority over “interstate wires.” Any intercept of an electronic communication is considered a “wiretap” in our age. This includes emails, cell phones, landlines, texts, computer interaction, bank wires, etc. Comey implied no such surveillance by his “no information” to support Trump comment, then less than 48 hours later we get the Nunes disclosures of “incidental” intercepts of Trump team communiques. Comey may be a wanna-be Hoover, with his proclamations he intends to be in office a long time, but even Hoover knew to keep his ethical breaches mostly private.
Comey is right about the importance of public trust, and that public trust now compels his recusal from an investigation into the deep state leaking against President Trump. Sessions took the honorable path to be above reproach. Will Comey?
Robert Barnes is a California-based trial attorney whose practice focuses on Constitutional, criminal and civil rights law. You can follow him at @Barnes_Law