Former FBI Director James Comey testifies about his firing by President Donald Trump during a Senate Intelligence Committee hearing on June 8, 2017. (Photo: Diego M. Radzinschi/ALM)
White House Press Secretary Sarah Huckabee Sanders laid out a case claiming former FBI Director James Comey likely violated the Privacy Act by leaking memos involving conversations with the president, but it’s unlikely the DOJ will come after Comey anytime soon.
Asked in a White House briefing Wednesday whether she believed Comey broke the law by leaking memos he wrote about interactions with President Donald Trump to the press, Sanders said leaking sensitive FBI memos violates “federal laws.” However, the only statute she mentioned by name was the Privacy Act, which governs how and when agency employees can release records. The U.S. Department of Justice rarely pursues cases against employees under the Privacy Act.
Sanders said the fact that Comey created memos about an FBI matter on an FBI computer, while employed as director of the FBI, is an obvious violation. Whether Comey broke the law, though, would be up to the DOJ.
“I think that the facts of the case are pretty clear,” Sanders said.
In testimony before Congress earlier this year, Comey said he wrote the memos because he “knew there might come a day” when he would “need a record of what had happened” in order to protect both himself and the FBI. He said he leaked the memos after Trump fired him in March to ensure the appointment of a special prosecutor to oversee the agency’s investigation into Russian interference in the 2016 election and possible collusion with the Trump campaign. The memos themselves have not been made public.
The law Sanders cited, the Privacy Act, makes it illegal to disclose “any record” under agency control “to any person” except in certain circumstances. A record, according to the law, is “any item, collection or grouping of information about an individual that is maintained by an agency” that names the individual or contains other identifying information.
Privacy Act litigation typically occurs when an individual sues the government with the belief an agency improperly disclosed information about them. When the U.S. Office of Personnel Management had a major data breach in 2015 that exposed millions of federal workers’ personal data, several class action lawsuits were filed under the Privacy Act.
While Deputy Attorney General Rod Rosenstein has said he believes Comey’s memos should have been kept confidential, Comey said in his congressional testimony that he “understood” at least one of the memos he leaked to be a “recollection recorded of my conversation with the president.”
If the memos are personal documents, akin to a diary, they likely wouldn’t be covered by the Privacy Act. In a post on the Lawfare blog Wednesday, former National Security Agency lawyer Susan Hennessey and Brookings Institution fellow Benjamin Wittes, a friend of Comey’s, wrote, “it’s hard to even understand the argument for how Jim Comey’s memory about his conversation with the president qualifies as a record, even if he jotted it down while in his office.”
Jonathan Turley, a professor of public interest law at George Washington University Law School, said he had no doubt Comey’s memos would count as records because they were written on an FBI computer about activities undertaken in Comey’s capacity as FBI director, and he discussed the memos with colleagues at the agency. Turley said he thought it was “likely” that Comey violated the Privacy Act.
“Imagine how ludicrous it would be if FBI officials could claim that field memos were personal diary entries,” Turley said. “They could destroy the reputation of citizens. They could undermine investigations.”
Turley noted, however, that criminal prosecutions under Privacy Act violations are rare. In fact, a Justice Department guide on the law only mentions two such prosecutions, and neither resulted in a conviction.
Where Comey could run into trouble, Turley said, is if the Justice Department determined the memos contained classified information.
“If, in fact, he removed classified memos from a secure computer, that triggers a host of other potentially criminal charges,” Turley said.