Jed Shugerman was quoted in The Guardian about President Trump accusing James Comey of leaking sensitive information during his congressional testimony.
Those words do not cohere as a legal argument of intimidating precision and strength, said the Fordham law school professor Jed Shugerman, author of the Shugerblog commentary site.
“This should not be called a leak,” Shugerman said of Comey’s decision to pass a personal memo to the media through a friend. “The word ‘leak’ refers to revealing secret and classified information. It is a misuse of the term ‘leak’ to apply that in any way to what Comey described in his testimony.”
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Shugerman pointed out that Comey described in his testimony on Thursday how he had taken care not to put classified material in the memo in question. The memo recounted how Trump had directed Comey, as Comey understood it, to end an investigation of the former national security adviser Michael Flynn.
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Trump’s incorrect reference to the Comey memo as a “leak” does not necessarily mean that releasing the memo was lawful, Shugerman cautioned, pointing to seven conceivable scenarios under which Comey’s release of the memo could present a legal hazard.
Under none of the seven scenarios did Comey appear to be much in danger of transgression, however, Shugerman said. Here are the relevant categories identified by Shugerman, with his analysis in quotations:
Illegal leak: “It’s not an illegal leak, because as Comey clarified in his testimony, he made sure to avoid any question of whether it would be classified or should have been classified or reveal classified information or other secret information. It’s not classified, so it’s not a leak.”
Privilege: “A very ambiguous assertion of privilege without actually identifying the privilege itself. If what they’re asserting is executive privilege, it’s pretty clearly been waived. They had notice and opportunity to invoke executive privilege before his testimony. Trump referred to those conversations himself in his letter on Comey’s firing. And executive privilege is not absolute – it must be balanced with public interest.”
An official FBI document: If Comey’s memo was a so-called Field 302 form, it may be subject to rules for non-release. But the memo was not written as part of a formal investigation, and “if he was trying to make sure that he was preserving a memo for his own use, he would obviously not create a form”.
Non-disclosure agreement: “It’s certainly possible that there’s a non-disclosure agreement within the FBI. But violating a non-disclosure agreement is not necessarily criminal. [And] as far as we’re aware,” there isn’t one.
Federal law governing the handling of public property or records: “It’s quite a stretch to say that just because Comey wrote notes on an FBI government computer, that those notes become an official record … So it’s not an official record, and it’s not larceny of property or conversion of property for personal benefit or gain.”
Internal FBI rules: “I’ve not seen anyone cite a particular internal FBI rule that would have made Comey’s behavior illegal or directly contrary to FBI policy.”
Privacy act: “It’s not an official record, and does not refer to otherwise private matters,” so no.
