The DOJ Investigation of the Investigators, Act One: James Comey

Donald Trump (left) — James Comey (center) — William Barr (right)

Although the Department of Justice (DOJ) “investigation of the investigators” appeared to be lagging for some time, recent developments show that things are precipitating.

According to multiple sources, as reported on July 31, 2019 by John Solomon of The Hill, Inspector General (IG) Michael Horowitz has referred former FBI Director James Comey for possible prosecution under the classified information protection laws under two counts:

-(a) leaking classified information, and

-(b) showing “lack of candor” (an euphemism for lying) with investigations, after the FBI investigated President Trump over the Russian collusion.

For the first count, Comey leaked one “confidential” memo (a technical violation) to a friend in order to be published by the media, as he himself admitted in a congressional testimony. The memo detailed a conversation he had with Trump, after he was fired by the president on May 9, 2017.

During his spring 2018 book tour, Comey told CNN that he had written between five and ten memos about his interactions with Trump, but there is documentation for only seven memos.

The FBI classified the memos after Comey was fired. On May 17, 2017, Deputy Attorney General Rod Rosenstein appointed Robert Mueller to serve as special counsel in the investigation of the “Russia collusion.”

On June 7, 2017, special agents visited Comey at home, and the former FBI Director gave them four memos as “evidence,” dated between January, February and April 2017. On June 8, Comey testified to Congress he had leaked his memos hoping for a special counsel investigation (that had been triggered earlier).

For the second count, Comey was found to be engaged in a “lack of candor” when he failed to inform the FBI agents who came to retrieve the classified memos in his possession that he had forwarded some of the memos on to others by e-mail.

In a first stage, the DOJ prosecutors working for Attorney General (AG) William Barr have decided to decline prosecution for “lack of intent.” This is quite ironic. The same rationale was used by Comey himself, when he decided not to charge Hillary Clinton for violating the Espionage Act for mishandling classified information on her email server.

A clear intent is proven by Comey’s own admission that he leaked the memos in order to have a special counsel investigation against President Trump.

Let us remember that people were indicted for similar acts. In 2012, General David Petraeus was found guilty to a misdemeanor charge of mishandling the classified information that he allegedly provided to his mistress and biographer. In 2016, Navy sailor Kristian Saucier was convicted to unlawful retention of national defense information and sentenced to one year in prison for taking photographs of classified engineering areas of a nuclear-powered attack submarine.

It is possible that the IG’s prosecution proposal of leaking information for a technical violation could be considered too “thin” for the time being. And maybe AG Barr will reconsider his decision to decline Comey’s prosecution later on during the investigation and include it in a “larger package” of charges.

Comey is also a possible target of a separate IG investigation into alleged Foreign Intelligence Surveillance Act (FISA) abuses, which Horowitz had launched in March 2018. Comey signed three of the four FISA applications targeting former Trump campaign adviser Carter Page before being fired by Trump.

In the meantimeu, General David Petraeus was fi, Barr’s “investigation of the investigators” is underway, and the AG is working very closely with Horowitz. Comey’s actions as FBI director will be scrutinized during this review of the origins of the Trump-Russia investigation. Barr tasked the U.S. attorney in Connecticut, John Durham to lead the review. In this capacity, Durham has the ability to convene a grand jury and subpoena people outside of the government.

On the top of that, Lindsey Graham, the Senate Judiciary Committee Chairman, a close ally of President Trump, has promised a “deep dive” into the origins of the Trump-Russia investigation after IG Horowitz completes his work.

Horowitz‘s report is expected to be released later this fall. John Ratcliffe, Trump’s recent nomination for the Director of the National Intelligence, who has spoken to Horowitz, indicated that the IG’s report will be ready “sometime right after Labor Day,” which is September 2, 2019.

The public’s expectations are high. Let us hope that AG Barr has a more general view that will enable him to move easier on the chess table and bring more serious indictments when the time is right. Otherwise, the feeling that all this is political theater will intensify, and the Americans’ hope for fixing the justice system will be irretrievably damaged.


NOTE – A version of the article was published in MEDIUM.


TIBERIU DIANU has published several books and a host of articles on law, politics, and post-communist societies. He currently lives and works in Washington, DC and can be followed on MEDIUM.





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