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Comey’s bid to show he lacked ‘mens rea’ to leak may not work

Former FBI Director, James Comey was fired by President Trump in 2017.

He provided memos, or the content of memos, created by him to friend, Daniel Richman, with the purpose of disseminating that information to the press. The information concerned Comey’s interactions and conversations with Trump.

When confronted with the question of whether or not he leaked, or violated a term of employment at the FBI – one that requires him not to divulge information without written permission of the FBI of any of his work product, and not to disseminate or leak classified information, Comey answered that he did not consider his memos to be work product, but rather, akin to a private diary, even though he left copies at the FBI, and the content of those memos concerned official FBI Director business.

Comey is arguing, essentially, that he made a good faith mistake in leaking the contents of memos to his friend to give to the press.

Comey himself did not provide his information to the press. Why did he hand it to a friend to leak? Surely, Comey could easily command the attention of the press over materials he did not believe were classified and over which he believed were basically his diary.

Comey’s stealth in this regard may be evidence that the DOJ Inspector General, and other federal investigators, will take into consideration when they decide whether or not Comey is believable when he argues he did not believe he was leaking.

Comey maintains in his interviews that he does not consider himself a leaker; that he did not leak, although Comey did leak memos or their contents to Richman to, he admits, to start a probe of the president (a probe predicated on an opposition research document funded by the Clinton campaign and the DNC). If Comey admitted he deliberately leaked what he knew to be classified information, or FBI work product, with the intent to start a probe of Trump, the question would be clear cut.

As Professor Jonathan Turley points out, “[t]he problem is that Comey’s description of his use of an FBI computer to create memoranda to file suggests that these are arguably government documents.” Turley cites 18 U.S.C. § 641, which prohibits stealing, selling, or conveying “any record, voucher, money, or thing of value of the United States or of any department or agency thereof.”

Arguably, memos of meetings between the Director of the FBI and the President, conveyed to a friend to convey to the media, fall under prohibitions of § 641.

The Inspector General may issue a report soon, possibly recommending a criminal investigation of Comey, just as it did Comey’s Deputy, Andrew McCabe.

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