Saturday, June 10, 2017

Not Leaks (Or Leeks)

Donald Trump's lawyer, Marc Kasowitz, has threatened to file a couple of complaints against James Comey.  The ex-FBI chief is accused by the GOP spin machine with "leaking" as a private citizen his own notes pertaining to meetings already described by the President.  Josh Gerstein quotes an "ex-FBI chief" commenting

“I would be astonished if the FBI supported Comey in terms of his handling of this information … If they accepted this, you would have a virtual collapse of a wide array of regulations governing dissemination of information.”

Several federal criminal laws could potentially apply, including some that prohibit disclosure of various types of classified information. However, Comey insists the memos he shared are unclassified.

Comey is not "insisting" the memoranda are unclassifed; they are his own notes.  But Gerstein continues

One statute involving theft of government property has sometimes been used to charge government employees who disclose the names of informants, confidential contract bids, or even information about changes to Medicare reimbursement policies. The law has been invoked even when the information wasn’t really stolen or removed, but merely copied or relayed.

That's not going to fly. Gerstein acknowledges

a Justice Department policy appears to bar use of the law when “the defendant obtained or used the property primarily for the purpose of disseminating it to the public.”

“Under this policy, a government employee who, for the primary purpose of public exposure of the material, reveals a government document to which he or she gained access lawfully or by non-trespassory means would not be subject to criminal prosecution for the theft,” the U.S. Attorneys’ Manual says, while acknowledging that other laws could apply, including those for classified information.

Even the premise is faulty, however. Defending James Comey and (now ex-) NASA contractor Reality Winner, Dana Gold explains

After being fired for doing his job investigating government corruption, Comey—like so many whistleblowers before him—recognized the likely futility of an independent investigation being launched into potentially one of the most serious abuses of power in history without the power of the press. Similarly, Winner reasonably believed she was exposing evidence of illegal activity on the part of the Russians to interfere with our elections, though she would have benefited from talking with an experienced whistleblower attorney before deciding to share a classified document with the Intercept.

Fear of futility—that speaking up won’t make a difference—and fear of reprisal are the two main reasons employees with evidence of serious wrongdoing stay silent. We should be grateful that Comey had the courage to use the press. Whistleblowers and the verifiable information they provide about wrongdoing, reported responsibly by the press, are essential to making our barely functional democratic system of checks and balances work.

The Justice Department will not be so grateful, and Winner is in a heap of trouble, James Comey far less.  Nevertheless, the larger issue may be, as Charles Dickens once wrote "If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass - a idiot".

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