'Total nonsense': Legal experts debunk 'uninformed' theory that Comey could be subject to legal jeopardy for withholding memo
Two theories took hold among conservatives in the immediate aftermath of the bombshell New York Times report claiming that ousted FBI Director James Comey kept memos on his meetings with President Donald Trump, including one that claimed Trump suggested he drop an investigation into his former national security adviser Michael Flynn.
With legal experts saying the memo could make for a "very strong case of obstruction of justice," conservatives suggested that, actually, it's Comey who could be in legal jeopardy. And at the very least, if Comey felt what Trump said amounted to obstruction of justice, why didn't he say anything at the time or resign immediately?
A number of leading Republican politicians, including House Speaker Paul Ryan, targeted the latter point, questioning Comey's decision to keep quiet until after he was fired.
"If this happened, the FBI director should have done something about it or quit," Sen. Lindsey Graham of South Carolina said. "If the president asked the FBI director to do something inappropriate, the FBI director should have said no and quit."
Meanwhile, former Arkansas Gov. Mike Huckabee, a major Trump backer, linked on Twitter to a Facebook post from a Tennessee-based lawyer, who suggested the former - that Comey himself could be in legal trouble for "concealing" the information. Huckabee wrote that the attorney, Matt Wilson, "has powerful questions NY Times ought to ask. Please read."
Wilson cited US Code 18 section 4, which states that, "Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both." It's known as "misprision of a felony."
Wilson also questioned why Comey waited until now to reveal the information if he believed a crime may have taken place, adding that the series of events leads to only two possible conclusions.
Either "Comey did not think the president had committed any crime, or Comey was committing a crime, himself, (i.e. misprision of a felony) in order to have something to hold over the president," Wilson wrote, adding, "On the other hand, if he did, in fact, reveal this to a judge, or to the attorney general, or to any other person in authority, then by revealing this information to the press, Comey may be impeding an active investigation."
"So if these memos actually do exist, this does not look good for Comey," he continued. "Which makes me wonder if they do, in fact, exist. If I were Comey, I would certainly lawyer up and plead the 5th if he is called to testify before Congress."
Fox News' Gregg Jarrett used essentially the same reasoning, citing the same section of US code, in a piece on FoxNews.com.
Jarrett said that "by writing a memo, Comey has put himself in a box."
"If he now accuses the President of obstruction, he places himself in legal jeopardy for failing to promptly and properly report it," he wrote. "If he says it was merely an uncomfortable conversation, he clears the president of wrongdoing and sullies his own image as a guy who attempted to smear the man who fired him. Either way, James Comey comes out a loser. No matter. The media will hail him a hero. After all, he gave them a good story that was better than the truth.
Speaking to Business Insider, several legal experts criticized this assertion as something that couldn't be further from the truth.
"Total nonsense," Alan Dershowitz, a prolific attorney and professor emeritus at Harvard Law School, told Business Insider of the conservative theories.
Robert Chesney, a law professor at the University of Texas School of Law and a founding editor of Lawfare, told Business Insider in an email "that the argument is completely uninformed" because "misprision of felony requires an affirmative act of concealment (not just non-reporting) and because in this case, the person said to know of the crime is himself the leader of the agency to whom such agency should be given."
Chesney wrote a debunking of the theory on Lawfare.
"And there's no law, let alone a criminal law, requiring the FBI director to specifically inform others in the Justice Department of investigative leads," he continued. "Really, it's quite silly."
If the memo is a real and an accurate portrayal of Comey's February conversation with Trump - in which the president reportedly expressed to Comey that he hoped the FBI director could "let go" of the investigation into Flynn because he was a "good" person - it is but one piece of the puzzle in terms of a potential obstruction of justice charge, not the full thing.
In other words, the comment alone may or may not have been something that could be considered obstruction of justice. But coupled with Trump's reported request of Comey to take a loyalty pledge, his recent firing of Comey, and his subsequent admission that the Russia investigation was part of his rationale for firing him, all of a sudden that February comment looks much more like obstruction of justice than it would have at the time.
As Democratic Sen. Tim Kaine told Charlie Rose on CBS' "This Morning" Wednesday, "if the president had said that to Director Comey, it's suspicious, but it wasn't until the firing" that it becomes potential obstruction.
"You know, I might argue it wasn't until the firing that there was an actual effort to obstruct," he said. "So you have to have an intent to obstruct but you also have to take an action to obstruct. And the action was the firing. Asking the question is very borderline - very, very borderline behavior - but if that question was asked and Comey proceeded with the investigation and there was no firing of Director Comey, it's not clear that there would then be the actual act of obstruction."
"But the combination of asking him to drop the investigation and then firing him and citing the Russia investigation as the reason, that really completes the allegations. And now what we need is to hear from director and from the president about what happened."
Philip Heymann, a professor emeritus at Harvard Law School who served in the Justice Department under presidents John F. Kennedy, Lyndon Johnson, Jimmy Carter and Bill Clinton, the last of whom he served as deputy attorney general, told Business Insider that Kaine's explanation nailed why Comey wasn't concealing a possible crime before he was fired.
"The first time he's asked to drop the investigation, it's an ambiguous event," Heymann said. "I thought that too. Surely the president can say, without meaning to threaten anybody or meaning to do anything but call to their attention a good recommendation to anyone, the president can say 'gee, Flynn's a fine man.' The president can say it not in a very intimidating way. Done in a casual way. On the other hand, as soon as the director gets fired, it becomes much more ominous."
"Then, he's asked to lay off Flynn and is fired when he doesn't," he continued. "That does sound like obstruction."
When only looking at the first half of the equation without considering Comey's ouster, it "isn't so obvious," Heymann said.
Business Insider's Josh Barro wrote Wednesday that if Comey came forth with this memo prior to being fired, Republicans would have offered up the defense that "Trump just talks like that, and he wasn't trying to obstruct justice, and you shouldn't take him so literally."
"And without Trump having taken a concrete step to obstruct justice, such as firing the FBI director, that defense would have worked," he wrote.
Andrew Wright, an associate professor at Savannah Law School, said that asking why Comey decided against bringing this conversation forward at an earlier date is "a fair question." But he added that the answer could very well be that he did, passing it up the chain of command.
And as to whether Comey could face any legal jeopardy for his actions, Wright said he's "not aware of any situation" where that would be a possibility.
"He might have had some sort of legal ethics requirement to do so but that's not the same thing as violating a criminal statute," he said.
He added that Comey's decision to not release the memo initially is highly unlikely to be "a ticket to redemption for the president or some sort of smoking gun that Comey is committing an illegal act."
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