Comey Out of the Frying Pan & Into the Fire

The IG Report regarding Comey’s memorializations of his meetings with Trump and how Comey handled those memos did not establish criminal acts, but the facts the IG did find make later serious charges more likely.

Comey has skated on charges that he mishandled confidential material, but the facts of his meetings with the President could prove far more damning down the road.  The facts establish that, by January 2016, James Comey had opened a criminal investigation directed at President Trump, the ultimate goal of which was to impeach Trump or impair his Presidency.  If it was not “adequately predicated,” then James Comey will face much more serious charges.

Yesterday, AG Barr released the Report of Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda // Oversight and Review Division, August 2019 (the “IG Report.”)  It was an investigation by the Dept of Justice Inspector General into the facts and circumstances surrounding Former FBI Director Comey’s 2016 meetings with President Trump, the memos Comey produced based on those meetings — or as Comey critically describes them, his “recollections recorded” — and Comey’s disposition of those memos.  Several of the memos Comey provided to counsel, one with the instruction that it be leaked to the New York Times.  Several of the memos he kept in his private residence, including retaining them after he had been fired by Trump.

As Byron York notes at the Washington Examiner:

The new IG report is devastating for Comey. His leak of other materials from his memos — sensitive law enforcement material from an ongoing investigation — violated Justice Department and FBI policies, as well as Comey’s own FBI employment agreement, the inspector general wrote. More broadly, Comey set a “dangerous example” for all FBI employees. If other bureau officials acted similarly, the report said, “the FBI would be unable to dispatch its law enforcement duties properly.”

Nonetheless, AG Barr announced in advance of the public release of the report that he did not see the facts as rising to the level of provable criminal activity.  As I’ve opined previously, that is probably a fair assessment by Barr.

Comey, for his part, spiked the football.  “Comey released a statement portraying the scathing report as a type of victory and encouraged his critics to send their apologies to him.”

I suggest we hold those apologies just yet.

The facts of the IG Report do not alone establish criminal conduct.  But the facts do go a long way to establishing several key things long suspected.  The most important is that Crossfire Hurricane was a criminal investigation aimed at President Trump.  To date, Comey et al. claimed that Donald Trump was not the target of the investigation.  That was always extremely suspect.  Now we know it was false.

The IG Report definitively establishes that the FBI never provided a “defensive briefing” to Donald Trump regarding the totality of the Steele Dossier being investigated by the FBI, only a small part of it, that being the single allegation that Trump had engaged with Russian prostitutes in 2013.  The only possible justification for that is that the FBI was targeting Trump himself.

Further, Comey’s briefings and his memos establish that Comey treated his interactions with the President as a part of the criminal investigation.  This from Andrew McCarthy at NRO:

What we learn is that Comey and his top FBI advisers prepared extensively for the then-director’s January 6, 2017, briefing of then-president-elect Trump. The detailed preparation owed to the fact that the FBI regarded the session at Trump Tower in New York not as a mere briefing but as an evidence-gathering opportunity. That’s because they were investigating Trump, which they hoped to continue doing when he took office . . . which called for putting him at ease . . . which meant telling him that they were not investigating him.

The plan on January 6 (i.e., the day after director Comey met with President Obama about next steps in the Russia investigation) was for Comey to hit the president-elect with a Steele-dossier allegation: the salacious and unverified claim that Trump had cavorted with prostitutes at a Moscow hotel in 2013, and been covertly recorded doing so by Russian intelligence.

That’s not a briefing. It is Criminal Investigations 101: . . .

And make no mistake: Comey was the investigator. . . .

When we look again at Comey’s memo of that first meeting with President-elect Trump, we see how this played out: Comey’s zinger, Trump’s exculpatory responses. We find the highly experienced investigator elaborating on the operation of his suspect’s mind:

I said, the Russians allegedly had tapes involving him and prostitutes at the Presidential Suite at the Ritz Carlton in Moscow from about 2013. He interjected, “there were no prostitutes; there were never prostitutes.” He then said something about him being the kind of guy who didn’t need to “go there” and laughed (which I understood to be communicating that he didn’t need to pay for sex). He said “2013” to himself, as if trying to remember that period of time, but didn’t add anything. He said he always assumed that hotel rooms he stayed in when he travels are wired in some way.

If you understand what Comey was doing, the memo is not very subtle. The implication is that the “golden showers” incident may well have happened (meaning: Yes, Putin may have Trump over a barrel, just like Chris Steele says!). The president-elect was adamant only that prostitutes were not involved, not that an escapade of this kind was inconceivable. The then-director made sure to include Trump’s thinking aloud about the year of the alleged incident, 2013. Translation: Most normal people would be able immediately to say, “This never happened”; but for Trump, kinky exploits must be so routine that his first impulse was to sort out the time frame.

That is to say: If the FBI’s investigation turned up some corroboration for Steele’s pee-tape story, Comey would now be in a position to provide helpful testimony about Trump’s statements and state of mind. The memo itself might even be admissible in court as evidence for the prosecution.

“Recollection recorded” — remember that one? That was the tell.

In June 2017, when the existence of former director Comey’s memos first emerged, he was asked why he’d made them. He explained, “I understood this to be my recollection recorded of my conversation with the president” (emphasis added). I observed at the time that, as an old prosecutor, that got my antennae pinging. To non-attorneys, this was just gobbledygook. But as any trial lawyer can tell you, “recollection recorded” is not an idle phrase. It is a term of art in the Federal Rules of Evidence (specifically, Rule 803(5), “Recorded Recollection”).

Most out-of-court statements (e.g., a news story about an event) are inadmissible as hearsay. But under some circumstances, “recollection recorded” is an exception to the hearsay rule. To qualify, the recollection must be recorded (such as in a memo) at the time an incident was fresh in the witness’s memory, so that it accurately reflects the witness’s knowledge. That’s why — if you’re not only an FBI official but a seasoned trial lawyer, such as Jim Comey — you’d want to write it down contemporaneously or immediately after the relevant event. Perhaps in a car speeding to a meeting with fellow investigators to report back to them about the investigation you’ve just done, despite telling your prime suspect, the incoming president, that you are not investigating him. . .

So, what it all comes down to now is whether the FBI had probable cause to be investigating President Trump — and as I’ve previously opined, that is looking very suspect.  This from Kevin Brock at The Hill:

Next up will be the IG’s findings regarding Comey’s truthfulness before the Foreign Intelligence Surveillance Act (FISA) court and whether he attested to false or misleading statements in order to electronically monitor a presidential campaign.

That determination may not be as cut-and-dried as many think it is, but it hopefully, at a minimum, will explain why Comey believed he could sign off multiple times on a FISA application based largely on information that he, himself, described as “salacious and unverified.” His exposure here is potentially much more devastating than breaking FBI record retention and handling rules.

Close behind the IG’s second report will be findings by U.S. Attorney John Durham whether Comey and his rogue team of investigators violated FBI and departmental guidelines to initiate a counterintelligence investigation into a presidential campaign. They will determine if Comey had adequate justification for launching such an unprecedented investigation.

But beyond that, Mr. Durham and his team likely will follow up on emerging indicators that Comey may have colluded with other intelligence community leaders to actually “manufacture” the justification needed for an investigation by targeting covert informants against campaign representatives in violation of established policies and procedures.

If these investigation show what I suspect they will, then Comey and several others from the Obama administration will be thrown into the fire.  Not the least of the charges they should be facing include 18 U.S. Code § 2384. Seditious conspiracy:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, . . . the Government of the United States, . . . they shall each be fined under this title or imprisoned not more than twenty years, or both.

It is unfortunate that, among the many practices we adopted from Britain in our Constitution, one was not the British practice for dealing with sedition.