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WASHINGTON — James B. Comey’s testimony on Thursday that he orchestrated the disclosure of his account of his discussions with President Trump has raised questions about the ethical and legal implications of his actions.
“My judgment was, I needed to get that out into the public square,” said Mr. Comey, whom Mr. Trump fired last month as F.B.I. director. “And so I asked a friend of mine to share the content of the memo with a reporter. Didn’t do it myself, for a variety of reasons. But I asked him to because I thought that might prompt the appointment of a special counsel. And so I asked a close friend of mine to do it.” The friend, Daniel Richman, a Columbia Law School professor, gave the information to a journalist at The New York Times.
Mr. Trump and his defenders have responded to Mr. Comey’s testimony by denouncing him as a leaker.
What is a leak?
The word “leak” has no official legal definition. But the term usually refers to the act of providing confidential information to the public in a surreptitious way and without official authorization.
That is a neutral description, but Mr. Trump on Friday used the term in a way that was clearly intended to carry pejorative connotations: “He’s a leaker,” Mr. Trump said of Mr. Comey at a news conference.
Gabriel Schoenfeld — a senior fellow at the conservative Hudson Institute, who published a book in 2010 that criticized the publication of leaked national security information, but has praised leaks about the Trump administration as morally necessary — said he nevertheless wished that Mr. Comey had been open from the start that he was the one putting out the information.
“It would be cleaner, ethically, if Comey had just revealed it in a public way or published it under his own name instead of this subterfuge, which has allowed the Trump administration to exploit it,” Mr. Schoenfeld said, adding: “Comey said he has his reasons, and they may be very good ones. We should withhold judgment until we know what they are.”
What is not a leak?
Sometimes former officials, without authorization, publish memoirs recounting high-level internal conversations, or officials blurt out secret information at a congressional hearing. In those cases, the disclosure is not clandestine and therefore not a leak.
Other times, news reporters publish previously confidential information and attribute it to officials who spoke anonymously, but behind the scenes those officials had obtained permission to talk. Such a disclosure could be described as a “plant” because there was an official policy decision to put out that information.
The line between a leak and a plant is sometimes ambiguous. In a 2013 law review article, David Pozen, a Columbia University law professor, coined the term “pleak” to describe a practice in which high-level officials talk to reporters without getting clearance but in a way that the White House tolerates.
“If we define authorization as coming from the White House, Comey looks more like a leak than a plant,” Mr. Pozen said.
Is leaking the same thing as whistle-blowing?
Whistle-blowing is a subset of leaks about waste, fraud, illegality, abuse of power or some other form of government or corporate wrongdoing. Defenders and critics of leakers often spar over whether any particular disclosure meets that higher moral standard.
Dana Gold, the director of education for the nonprofit Government Accountability Project, argued that Mr. Comey merited being described as a “whistle-blower” rather than as a “leaker,” given that he was bringing to light information about potential obstruction of justice by the president.
Are leaks illegal?
Most are not, but some are. Federal law criminalizes the leaking of certain types of information. The Espionage Act makes it a felony to disclose, to someone not authorized to receive it, information related to the national defense that could be used to harm the United States or aid a foreign adversary. A small handful of specific types of information — like nuclear secrets, the identities of covert agents and techniques for surveillance of intelligence communications — are separately protected by law. For most of American history, the government did not punish leakers through criminal action, but in the 21st century, leak prosecutions have become more common.
After the hearing on Thursday, Mr. Trump’s lawyer, Marc E. Kasowitz, talked about how the Trump administration was being undermined by “selective and illegal leaks of classified information and privileged information.” He added, “Mr. Comey has now admitted that he is one of these leakers.”
But Mr. Comey specifically testified that he did not include classified information in the memos he shared.
Are officials legally bound not to disclose their conversations with the president?
No. The president’s lawyers are said to be planning to file a complaint with the Justice Department’s inspector general next week arguing that Mr. Comey had improperly disclosed what they deemed privileged communications. But Renato Mariotti, a former federal prosecutor, noted that this destination for their complaint “tells me they couldn’t come up with a legal basis to file a lawsuit.”
Executive privilege is a constitutional doctrine that presidents may assert to block Congress from obtaining information about their confidential communications with other executive branch officials related to their constitutional duties. Separately, under attorney-client privilege, current or former lawyers for a president have an ethical duty to keep their confidential communications secret, and they could face a bar complaint for disclosing them. But neither of those principles creates a legal duty for other types of former officials to stay silent about their recollections of their talks with the president.
Steven Aftergood, the director of the Federation of American Scientists’ Project on Government Secrecy, said that it was “discourteous to the president” for Mr. Comey to release information about their conversations, and that if a current official had done so without approval, it could have been grounds for employment discipline, like firing. But, Mr. Aftergood said, “is it protected by law from disclosure? That is hard to see.”
Author:
Charlie Savage