Why Comey Escaped Charges Last Week and Why His Luck Is Likely To Change

FBI Director James Comey pauses while making a statement at FBI Headquarters in Washington, Tuesday, July 5, 2016. Comey said the FBI will not recommend criminal charges in its investigation into Hillary Clinton’s use of a private email server while secretary of state. (AP Photo/Cliff Owen)



The release of last week’s Inspector General’s report, which focused on James Comey, was a disappointment to conservatives who were hoping to see the former FBI Director held accountable for his actions. DOJ Inspector General Michael Horowitz found that Comey had flouted FBI rules and ignored protocol in his determination to undermine President-elect Trump. He leaked memos he had written after each meeting with Trump with the intention of triggering the appointment of a special counsel. And he was successful. Horowitz clearly presented Comey’s wrongdoing, but even so, Attorney General William Barr declined to charge him with a crime.

There were several reasons for Barr’s decision. Comey, having attained the top position at the FBI knew the limitations of the law and how to remain within them. First, he made sure his memos were not classified at the time he leaked them. Next, he leaked the documents to his attorney friend who also had a security clearance.

Finally, he employed a legal tool that only an experienced trial lawyer would be familiar with. The National Review’s Andrew McCarthy, who is a former US attorney himself, immediately recognized it and explained how Comey used what prosecutors call a “recollection recorded.

At a certain (prearranged) moment during the intelligence briefing of President-elect Trump on January 6, 2016, the other officials, including CIA director John Brennan, left Comey and Trump alone so that Comey could “spring the trap.”


Comey told Trump of the dossier and specifically discussed the “golden showers” story. McCarthy writes that he was trying to force Trump into making incriminating statements that he could include in his memo of the meeting, and which could later be used as a “recollection recorded.” This is what Comey wrote in his memo following the meeting.

I said, the Russians allegedly had tapes involving him and prostitutes at the Presidential Suite at the Ritz Carlton in Moscow from about 2013. He interjected, “there were no prostitutes; there were never prostitutes.” He then said something about him being the kind of guy who didn’t need to “go there” and laughed (which I understood to be communicating that he didn’t need to pay for sex). He said “2013” to himself, as if trying to remember that period of time, but didn’t add anything. He said he always assumed that hotel rooms he stayed in when he travels are wired in some way.

McCarthy explains what Comey was trying to accomplish:

If you understand what Comey was doing, the memo is not very subtle. The implication is that the “golden showers” incident may well have happened (meaning: Yes, Putin may have Trump over a barrel, just like Chris Steele says!). The president-elect was adamant only that prostitutes were not involved, not that an escapade of this kind was inconceivable.

That is to say: If the FBI’s investigation turned up some corroboration for Steele’s pee-tape story, Comey would now be in a position to provide helpful testimony about Trump’s statements and state of mind. The memo itself might even be admissible in court as evidence for the prosecution.

In June 2017, when the existence of former director Comey’s memos first emerged, he was asked why he’d made them. He [Comey] explained, “I understood this to be my recollection recorded of my conversation with the president.”

I [McCarthy] observed at the time that, as an old prosecutor, that got my antennae pinging. To non-attorneys, this was just gobbledygook. But as any trial lawyer can tell you, “recollection recorded” is not an idle phrase. It is a term of art in the Federal Rules of Evidence (specifically, Rule 803(5), “Recorded Recollection”).

Most out-of-court statements (e.g., a news story about an event) are inadmissible as hearsay. But under some circumstances, “recollection recorded” is an exception to the hearsay rule. To qualify, the recollection must be recorded (such as in a memo) at the time an incident was fresh in the witness’s memory, so that it accurately reflects the witness’s knowledge. That’s why — if you’re not only an FBI official but a seasoned trial lawyer, such as Jim Comey — you’d want to write it down contemporaneously or immediately after the relevant event. Perhaps in a car speeding to a meeting with fellow investigators to report back to them about the investigation you’ve just done, despite telling your prime suspect, the incoming president, that you are not investigating him.


Barr is not a stupid man and knew that, due to Comey’s careful preparation and deliberate manipulation of the President-elect, it would be difficult to prosecute a case against him.

Barr is also well aware that there are two far more comprehensive reports coming. The first, the IG’s report on the FBI’s abuse of the FISA Court application process is due at the end of this month or in early October. The American Spectator’s Jed Babbin wrote that these reports are expected to show clear violations of the law. “Not in violation of regulations or procedures: in violation of the law.”

And, from what sources such as former DOJ official Joe DiGenova, investigative reporter John Solomon and several GOP members of Congress have said, the findings will be very damaging to James Comey and his colleagues.

Rep. Andy Biggs (R-AZ) appeared on Fox News’ “Sunday Morning Futures” last weekend and predicted that the IG’s FISA abuse report would be “devastating” and will result in indictments. Biggs, who is a member of the House Judiciary Committee said:

I anticipate that we will see some very stark revelations of manipulation of the whole system for political purposes. When you see that happen, that’s when I think you’re going to see references or referrals for indictments, and I think you are going to see some indictments.

I think you are going to see some accountability there.


Biggs estimated that the report “will be released probably mid-September.”

Comey signed off on the original FISA Court application and two of the three renewals for the warrant to spy on low-level Trump campaign advisor Carter Page for the purpose of spying on Trump. The FBI knowingly used Christopher Steele’s unverified dossier as the basis of their FISA applications. Comey, as well as the other major players in the conspiracy to bring down Trump knew the dossier was bogus, but wanted to gain a window into his campaign. FBI officials had been warned by the fourth highest ranking DOJ official, Bruce Ohr, that the dossier was funded by the Clinton campaign and the DNC and that Steele had been hired by opposition research firm Fusion GPS. They were told that Steele harbored deep resentment against Donald Trump and was “desperate” that he lose the race.

In addition, the FBI had received an email from State Department official Kathleen Kavalec prior to submitting their first application to the FISA Court.

Finally, The Hill’s John Solomon reported that the FBI kept a chart of the allegations made in the dossier. And the finest law enforcement agency in the world with all of the powerful tools of intelligence available to them, had not been able to verify a single one.

Three months after signing off on the first application swearing that the information had been “verified,” Comey sat in Trump’s office and grossly misrepresented the situation for his own purposes.


The case against Comey and his top officials is pretty clear cut in this instance and there is a solid trail of evidence to back it up. This leaves very little opportunity for deception.

The second and most consequential report will come after special prosecutor John Durham completes his investigation into the origins of the Trump/Russia collusion case.

That report will be the “main event.” Babbin writes that, “It will be the one that decides whom to indict and will obtain those indictments from one or more grand juries convened for that purpose.” (I will focus on that report in a later post.)


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