The most damning aspect of the Department of Justice Inspector General’s report on James Comey is its quotation of his own testimony and statements regarding the importance of not divulging or leaking confidential information about ongoing investigations. After quoting Comey’s words, the report proceeds to document how he repeatedly violated these standards and the policies of the Justice Department.
The report is unforgiving in its its criticism of the former director of the FBI, and especially of the defense that he has offered to justify his improper actions.
He has said that he thought it was important for the public to see these documents. The report rejects the right of individual government officials, even high-ranking ones, to take the law into their own hands and make individual decisions as to when it is proper to violate established standards — to break the law — in the interest of a higher value.
At bottom, Comey is saying he engaged in civil disobedience. Even after reading the report, he doubled down, saying he would do it again under the same circumstances. In other words, this man, who has rightfully said that the president is not above the law, believes that he is above the law if he thinks braking it is "important.”
I’m sure that when J. Edgar Hoover repeatedly broke the law back in the day, he too believed that it was important and that he was acting under a higher duty. But therein lies the road to tyranny and the end of the rule of law.
It is quite remarkable that Comey thinks he was vindicated by this report. He is asking his critics to admit they were wrong. Well, we were right to criticize him both for his inept and unlawful statements with regard to Hillary Clinton’s emails and his equally inept and unlawful disclosures with regard to President Trump.
The report rightly criticizes him for both. The difference between them is that in the Clinton case, he at least had the courage of his convictions and issued the improper statements himself before the cameras. In the Trump matter, he laundered the improperly leaked memos through a Columbia law professor, hiding the fact that he was the source.
Those who claim the mantle of civil disobedience must at least have the courage to do it themselves and bear the consequences. Comey didn’t do that. He wanted the memos to be published by the media but he didn’t want be blamed for leaking them. Martin Luther King, Jr. he is not.
The Inspector General and the Justice Department got it exactly right in criticizing Comey but not prosecuting him. He shouldn’t have leaked the memos even if they did not contain any technically classified material. That warrants criticism. But the material that was classified did not become classified until after he leaked the memos. I believe that james Comey is a good man who made a bad mistake , but he is not a criminal.
Criminal prosecution should be reserved for only the clearest and most calculated violations of criminal statutes, as Comey himself suggested when he announced the decision not to prosecute Hillary Clinton. In regard to the decision not to prosecute him, Comey benefited from the standards he correctly applied to Clinton.
The past several years have not been good for the FBI. It is among the most powerful governmental agencies capable of doing much good. It is also capable, if its vast powers are misused, of endangering the civil liberties of Americans.
Since 2016, it has been accused by both sides of the aisle of improper partisan bias. Even if this overstates the reality, it is clear that the perception of partisanship is real and that James Comey is partly responsible for this problem. Hopefully this objective, non-partisan report by the DOJ’s Inspector General will be an important first step to returning the FBI to its proper nonpartisan mission and to restoring the sense of trust in its objectivity by the American people.
Dershowitz is an american lawyer and former professor at Harvard Law School.