Here's Why The DOJ Declined to Charge James Comey for Leaking Classified Information

On Oct. 28, 2013, President Barack Obama and James Comey participate in the installation ceremony for Mr. Comey as FBI director at the bureau’s Washington headquarters. PHOTO: CHARLES DHARAPAK/ASSOCIATED PRESS

On Oct. 28, 2013, President Barack Obama and James Comey participate in the installation ceremony for Mr. Comey as FBI director at the bureau’s Washington headquarters. PHOTO: CHARLES DHARAPAK/ASSOCIATED PRESS


Investigative reporter John Solomon broke the news on Wednesday night that fired FBI Director James Comey was referred to the DOJ for possible criminal prosecution under classified information protection laws. My colleague, Bonchie, posted on that story here.

The DOJ, however, has declined to prosecute which has many conservatives scratching their heads. I believe there is a method to their madness. From the sounds of it, the DOJ has bigger fish to fry.

Sources have told Solomon that DOJ IG Michael Horowitz’ report will be “damning” especially where it concerns Comey’s conduct. It is said to “conclude he leaked classified information and showed a lack of candor after his own agency began looking into his feud” with the President. Apparently, those “reluctant” witnesses who showed up at the 11th hour had an interesting story to tell.

Multiple sources have indicated that, although DOJ prosecutors believed the evidence was compelling, they didn’t consider it sufficient to prove that Comey “intentionally” violated the law.

For example, one of the memos Comey gave to his lawyer/friend to leak to the NY Times was classified retroactively, and even then, only at the lowest level of classification which is “confidential.”

According to Solomon’s sources, this was a technical violation, but the DOJ “did not want to make its first case against the Russia investigators with such thin margins and look petty and vindictive.”


The bigger legal issues for Comey and countless other Obama administration intelligence agency officials, and this is a very big tent, concern the origins of the Trump/Russia collusion investigation which prosecutor John Durham is focusing on. Why did they decide to open an investigation into Trump campaign members? Why would they use a dossier they knew to be unverified and unverifiable to substantiate an application to the FISA court? Comey signed off on an application to the FISA Court in October 2016 claiming that the dossier was “VERIFIED.” Three months later, Comey presented a two-page summary of the dossier to then President-elect Trump in January 2017 and told him it was “unverified” and “salacious.”

One source told Solomon, “There are significant issues emerging with how the FISA was handled and other conduct in the investigation, and everyone involved remains under scrutiny.”

The testimony of then State Department Deputy Assistant Secretary Kathleen Kavalec will be crucial here. She was one of the “11th hour” witnesses who provided information to IG Horowitz’ that caused them to delay the completion of their report for three months.

Kavalec had met with Christopher Steele ten days before the FBI submitted their application for the warrant to spy on Carter Page and immediately determined that parts of it were untrue and also that Steele had a political agenda. He hated Donald Trump and wanted to prevent him from winning the election. He also made it clear that those who had commissioned him to write the dossier wanted to make sure it became public before Election Day. She emailed the FBI two days later with her suspicions.


The recipient of this email we learned only yesterday was FBI agent Stephen Laycock. Conservative group Citizens United filed a FOIA request to obtain copies of the email plus all documents attached to it and received a highly redacted copy several months ago. They filed a second FOIA request for an unredacted or at least less redacted version of it and current FBI Director, Christopher Wray, has actually gone to court to prevent that from happening. I wrote about this story on Wednesday.

Regarding the IG report, Solomon reported:

It is expected to conclude that the former FBI director improperly took with him memos that were FBI property when he was fired, transmitted classified information via an insecure email account, and shared some of the memos with his private lawyers. Some of the Comey memos were classified up to the “secret” level, but the FBI has not disclosed whether those were shared with his lawyers like the classified confidential memo was.

The memos, which mostly recount Comey’s interactions with Trump in the Russia case and include information about foreign leaders, were sensitive enough to require government officials to send a professional “scrub team” to a Comey lawyer’s office to ensure all classified information was deleted, sources previously told me.

In addition, the IG is likely to find that Comey engaged in a lack of candor when FBI agents came to retrieve the classified memos in his possession, failing to tell the interviewing agent that he had forwarded some of the sensitive memos by email, according to sources familiar with the probe.


Judicial Watch released documents yesterday which support these conclusions. Bonchie will be covering this later today.

John Solomon, investigative reporter Sara Carter and Fox News’ legal analyst Greg Jarrett appeared on Hannity to discuss this new information. Generally, they were disappointed that the DOJ declined to prosecute. They pointed out a long list of Americans including General David Petraeus who were convicted  for lesser offenses.

Additionally, Comey’s leak to the NY Times worked precisely as he intended. It triggered the appointment of a special counsel which has undermined the legitimacy of Trump’s presidency and his ability to govern. Comey’s stunt literally changed the course of history.

Putting that aside, all agreed that Attorney General William Barr has set his sights on Comey’s larger crimes, those which are now being uncovered by John Durham. The evidence of wrongdoing by Comey and many other officials is vast, less subject to interpretation and easier to prosecute.

Here are some of the highlights of their discussion:

Solomon: He’s got a day of reckoning coming, but there is more coming ahead…The more important thing to watch is the ongoing investigation by Bill Barr and what we know about the FISA [application]. They are learning some very troubling information about the FISA process and everyone involved remains under significant scrutiny…The AG is looking at the possibilities. Can I win this case in New York and if I lose this case in New York, what message does it send that a leaking FBI director got off? If there’s a better case to be made against James Comey, patience is sometimes the better part of prudence.


I think AG Barr and John Durham will be judged on the final product. When Barr, Durham and Horowitz get done, what’s the final outcome?

Hannity: I suspect there are bigger issues in play that we don’t know about yet…I know there are bigger issues about to come down and I am giving him [Barr] the benefit of the doubt and you know more than I do and you seem to agree with me.

Solomon: I do agree with you. The sources are telling me to stay tuned. There’s a lot more to come down the pike on Jim Comey. He signed the first FISA agreement and that’s going to turn out to be a fraudulent or misleading document.

Hannity speaks to Carter and Jarrett. He tells them he suspects that Solomon is right. Why would the AG take the most insignificant, the lowest hanging fruit, to make their first prosecution or indictment on when they know they’ve got something bigger.

Jarrett: I think the AG might feel that his bigger hammer against Comey is FISA abuse and lying to a court…but now we know why he fessed up to Congress that he leaked government documents to trigger the special counsel because the night before, the FBI had shown up at his house and he had been forced to hand over these classified documents…

Carter: FISA is what they’re looking at.

In other words, the AG is passing up the hors d’oeuvres to save room for dinner. As Solomon says, stay tuned.


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