From the moment Steve Bannon stated in his 60 Minutes interview that President Donald Trump’s decision to fire former FBI Director James Comey was the biggest political mistake in modern presidential history, there simply was no chance that this week would proceed without a fair amount of political insanity. The fact that the president’s former chief strategist would publicly and brazenly disparage that decision was bound to result in a fierce White House pushback. And so it has. But over the last three days, the White House has repeatedly advanced flawed and in some instances preposterous legal arguments that don’t stand up to informed scrutiny.
The hijinks began on Monday, when White House Press Secretary Sarah Huckabee Sanders claimed that information divulged after Comey was fired served as retroactive justification for the president’s decision. She alleged, among other things, that Comey had given “false testimony” and leaked “privileged information to journalists.” On Tuesday, Sanders did not repeat the “false testimony” claim, but she did reiterate the assertion that Comey had “leaked privileged government information,” and speculated that his actions “could have been illegal.”
In Wednesday’s press briefing, reading from what appeared to be prepared notes, Sanders explained what she meant by “illegal”:
“The memos that Comey leaked were created on an FBI computer while he was the director,” she said. “He claims they were private property, but they clearly followed the protocol of an official FBI document, leaking FBI memos on a sensitive case regardless of classification violates federal laws including the Privacy Act, standard FBI employment agreement and nondisclosure agreement all personnel must sign.”
These talking points were presumably provided to Sanders by the White House Counsel’s Office, but as a litigator with considerable experience representing government officials and contractors (including whistleblowers) of all ideological persuasions, trust me: They are nonsense.
For one thing, the Privacy Act has no clear or recognizable application here. The Privacy Act is a statutory mechanism by which individuals can secure access to records maintained in what’s known as a U.S. government “System of Records” and that contains their personally identifiable information. It also enables individuals to sue the U.S. government in civil court if a federal agency relies on inaccurate records to render a determination concerning that individual, or if the agency disseminates an individual’s records to unauthorized third parties.
Even if President Trump were inclined to sue Comey for “leaking” one of the memoranda, it’s not clear what legal basis he would have for doing so under the Privacy Act. There is no indication the memoranda were ever maintained in an FBI System of Records, or that they contain any personally identifiable information about the president that would implicate the Privacy Act. The statute does also contain a criminal provision, but even if it somehow applied to the memorandum “leaked” by Comey (and there is no clear reason why it would), the provision itself is essentially toothless. In the 43-year history of the Privacy Act, there appear to have been only two reported cases in which the Department of Justice has ever sought to prosecute someone for violating it. The most recent case was prosecuted in 1997 and resulted in a Not Guilty verdict.
Although Sanders did not specifically mention it, some legal commentators have claimed that Comey could be prosecuted under 18 U.S.C. § 641 regarding “theft” of government property. However, the Department of Justice’s own Criminal Resource Manual explicitly states that the provision shall not be used to prosecute theft of government information. The reason, according to the manual, is to protect whistleblowers from unfair prosecution.
Sanders cited two other legal sources: the FBI employment agreement and the bureau’s nondisclosure agreement. Neither of these documents, which are essentially employment contracts, provides a viable claim of criminal liability in this context.
The nondisclosure agreement, better known as Standard Form 312, applies only to classified information. Words like “sensitive” or “privileged” information mean nothing—the nondisclosure agreement does not apply. Classification is a binary designation; either the information is classified or it is not. As far as we know, the only document Comey provided to anyone other than Special Counsel Robert Mueller were the notes he “leaked” to a professor at Columbia Law School, who read portions of it to the New York Times. That memorandum was unclassified and therefore does not implicate Comey’s nondisclosure agreement.
The only thing left is Comey’s employment agreement. There is no dispute that Comey breached that contract. If the former FBI director had still been a government employee when he “leaked,” that breach would be a basis to fire him. However, he disseminated the memorandum after being fired. At most, the Justice Department could sue Comey for breach of contract, but that’s a civil matter at worst and a seriously far cry from the bombastic claims made by Sanders.
So where is the White House going with this? Media reports have indicated that the president’s personal attorneys have already submitted legal memoranda to Mueller arguing that Comey is not a credible witness. That’s a smart tactical move for the president’s attorneys to take, given the extensive personal knowledge Comey has that is relevant to Mueller’s probe; Comey’s recollections and his contemporaneous notes are directly relevant to the question of whether the president sought to obstruct justice.
Now it seems the White House is escalating its own smear campaign against Comey, who is nobody’s idea of a partisan hack. If the Trump team wants to have any credibility in that fight outside of their ideological echo chamber, however, they’re going to need far better legal arguments.