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Could FBI Director James Comey Be Prosecuted?


Tough words from press secretary Sarah Huckabee Sanders. She just sneered her way through a press conference where she did a two-step calling for James Comey’s prosecution, and then immediately disclaiming responsibility for what she had just suggested.

First, she said:

“I think if there’s ever a moment where we feel someone’s broken the law, particularly if they’re the head of the FBI, I think that’s something that certainly should be looked at.”

A few moments later, though, Sanders was quick to distance herself and her boss from the statement, saying that recommending such a prosecution is “not the president’s role.” Not long thereafter, though, Sanders doubled down on her call to grab the pitchforks, saying:

“I think there’s no secret. Comey, by his own self-admission, leaked privileged government information weeks before President Trump fired him. Comey testified that if an FBI agent engaged in the same practice, they’d face serious repercussions. I think he set his own stage for himself on that front. His actions were improper, and likely could have been illegal.”

If we could just put aside the gross inappropriateness of a White House press secretary’s making such accusations during a press conference, I’d like to delve into the substance of what Ms. Sanders said. She accused James Comey of two things: 1) committing perjury when he testified before Congress; and 2) illegally leaking privileged information to the New York Times. Perjury first.

Here’s the applicable federal perjury statute:

(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true;

Comey clearly took an oath. The Senate Select Committee on Intelligence is clearly a competent tribunal authorized to administer an oath. Comey gave both written and oral testimony. The only things up for discussion are: 1) whether Comey stated anything that he does not believe to be true; and 2) whether, if so, those things count as “any material matter.”

I think we can all agree that Comey’s testimony, which centered around about private meetings between himself and Donald Trump, and about the Hillary Clinton email investigation definitely constitute “any material matter.” Demands or pledges for loyalty, directions or acquiescence to back off an ongoing investigation, or the non-existence of such interactions is about as material as it gets. For a perjury charge, it all comes down to whether James Comey stated anything he does not believe to be true.

While Sarah Huckabee Sanders left the issue [intentionally] vague as to what particular statements of Comey’s were perjurious, it’s reasonable to assume that she was referring to Comey’s accusations that President Trump pressured him to drop the Russia investigation, or Comey’s recap of the investigation and subsequent non-prosecution of Emailgate.

As to the Comey v. Trump showdown, there’s not much grey area. Either Trump asked Comey to drop the investigation or he didn’t. Either Trump asked Comey for loyalty or he didn’t. Either Comey’s written and spoken testimony is true, or he has committed perjury.

To prove Comey guilty of perjury, a prosecutor would need to introduce evidence that the conversations Comey detailed in his testimony did not, in fact, take place. Prosecuting someone by proving that a conversation did not take place isn’t exactly easy, no matter what the press secretary thinks.

As for any “lies” Comey may have told about the timing of decisions on Emailgate and the importance of the ClintonLynch tarmac conversation, a perjury prosecution seems equally unlikely. Given the discretion an FBI director would have over such a case, as well as the myriad political factors in play, it would be beyond unlikely to find credible evidence that Comey’s testimony constituted a purposeful falsehood.

As for illegal leaking, that’s a bit more complex. In July, The Hill reported that four of the Comey memos had markings making clear they contained information classified at the “secret” or “confidential” level. When under oath, Comey testified that the memos were unclassified personal documents. Comey’s testimony left unclear the specific number of memos, as well as the exact contents of each. Comey said the following about the memos:

“My view was that the content of those unclassified, memorialization of those conversations was my recollection recorded.”

It is, of course, not Comey’s view that would matter. Standard FBI procedure dictates that all records created during official duties are government property, not to be disclosed without specific authorization. If Comey’s late-night phone call prompted his friend to divulge classified information, or information properly held with official FBI documents, there may be consequences to face. What exactly that would mean, given that Comey is no longer an FBI employee and is simply a private citizen, is still not entirely clear.

If (a big “if” unless Sarah Huckabee Sanders has some pretty interesting information up her sleeve) Comey publicized information he shouldn’t have, there is at least the potential that he would be criminally prosecuted for doing so. While the statements from the podium today certainly sound pretty ominous, the precise origin of the Comey memos, as well as the chain of communication for each of them will need to be sorted out before any talk of prosecution is realistic.

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos