The strangest claim to emerge from yesterday’s Senate intelligence committee hearing is the one first suggested by President Trump’s personal lawyer, Marc Kasowitz, and picked up since then by the President’s strongest defenders: That former FBI Director James Comey somehow violated executive privilege and broke the law by orchestrating a leak of memos memorializing some of his conversations with the President.
I have an Op-ed out this morning via the Washington Post that explains why the executive privilege piece of this is so ridiculously empty (in short: executive privilege (1) is a shield against efforts to compel disclosure of documents and testimony, not a sword against voluntary disclosure; (2) has almost certainly been waived here; and (3) would in any event likely yield to the more compelling interests of pending criminal investigations). But I thought it might be worth saying a bit more about the leak-as-crime piece of this, just to make clear how similarly empty that argument is.
1. Did #Comey's orchestration of the memo leak break the law? In a word, no.
In a few more words:
— Steve Vladeck (@steve_vladeck) June 8, 2017
The above thread already walked through the basics of the issue, but it reduces to this: There’s no general criminal prohibition against government employees disclosing internal governmental information, as such. Instead, the question is whether the unauthorized disclosure of such information violated some specific criminal statute. The two best candidates in most leak cases are the Espionage Act and the federal conversion-of-property statute. But the former requires that the disclosed material be “information relating to the national defense.” Without more, a memo that simply memorializes a private conversation with the President ain’t that (and, indeed, could not have been properly classified even if the President had tried).
The conversion statute requires a bit more analysis. An individual violates 18 U.S.C. § 641 if he: “embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof.” The Comey-as-criminal meme focuses on the notion that Comey “convey[ed] . . . [a] record,” or “property made . . . under contract for the United States.” But whether or not that reading seems superficially alluring, the case law doesn’t support its application here. Most significantly, as the Fourth Circuit explained in the Morison case, it’s an open question whether “property” in this context includes “pure information” (since the crux of the issue here is the content of the memo, not the physical memo itself). That’s why leak prosecutions (which often rely on § 641) tend to focus on the pecuinary value of the information being leaked (including, as in Morison, the classified photographs of a new Soviet aircraft carrier). I just don’t see the argument that Comey’s memos have comparable value here.
As the Post piece concluded,
Of course, none of this means that Comey acted “appropriately” in orchestrating the leak of his memos. Not for the first time, it appears that Comey took it upon himself to breach important norms governing the conduct of senior law enforcement officials — an offense that, perhaps ironically, would have unquestionably justified his termination, if he hadn’t already been fired before doing it. And reasonable minds can and surely will disagree about whether such breaches of protocol were justified under the circumstances.
But nuance in this context matters. Kasowitz and Trump’s defenders are not arguing that Comey only acted inappropriately; they are arguing that Comey acted unlawfully and in violation of executive privilege. Neither claim is correct — and those suggesting to the contrary do and should know better.
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