After Last Week's Victory Lap, Comey Apologizes; Did He Talk to a Lawyer?

 

Following the release of DOJ Inspector General Michael Horowitz’s report last week, fired FBI Director James Comey published an op-ed in the Washington Post, in which he declared himself and the FBI exonerated. He also blasted President Trump and Attorney General Barr. It was a little too soon for Comey to be taking a victory lap.

As people began to actually read the report, it turned out the news wasn’t quite as good as he had initially thought.

Comey joined Fox News’ Chris Wallace on Sunday for a surprisingly tough interview. (Video below.) Wallace asked some very difficult questions about the revelations in the IG report and managed to back Comey into a corner, forcing him to actually admit he’d been wrong about the FBI’s handling of the FISA process.

Wallace played several pairs of clips, first showing Comey, then DOJ Inspector General Michael Horowitz, answering the same questions. Here is one of them:

Comey: “I have total confidence that the FISA process was followed and that the entire case was handled in a thoughtful, responsible way by the DOJ and the FBI.”

Horowitz: “It doesn’t vindicate any at the FBI who touched it…We identified significant inaccuracies and omissions in each of the four applications, seven in the first application, and a total of seventeen by the final renewal application.”

Wallace turned to Comey and asked, “Seventeen significant errors in the FISA process and you say that it was handled in a thoughtful and appropriate way?”

Pressed, Comey dances around, tries distancing himself from the lower-level employees who actually submitted the application, and finally replies, “He’s right. I was wrong. I was overconfident in the procedures that the FBI and Justice had built over 20 years. I thought they were robust enough. It’s incredibly hard to get a FISA. I was overconfident in those. Because he’s right. There was real sloppiness, seventeen things that either should’ve been in the applications or at least discussed and characterized differently. It was not acceptable and so he’s right. I was wrong.”

Wallace responded, “But you make it sound like you’re a bystander, an eyewitness. You were the director of the FBI while a lot of this was going on, sir.”

In another exchange, Wallace asked Comey, “If you were still there, and all of this came out, and it turned out it happened on your watch, would you resign?”

To which Comey responded, “No. I don’t think so. There are mistakes I consider more consequential than this during my tenure.”

He didn’t care to elaborate on what those might be.

Later on, former Congressman and current Fox News contributor Trey Gowdy (R-SC) spoke to Maria Bartiromo and was asked about Comey’s “apology.” Gowdy said:

Yeah, I mean, I think this morning, Comey admitted he was wrong. Sometimes, Maria, it’s better late than never and Comey is about two years too late. We could have used his objectivity; we could have used him as head of the FBI helping Republicans figure out what was happening with FISA instead of thwarting us and obstructing us.

He said it was a policy and procedure issue. It’s not, Maria. [There have] always has been policies against manufacturing evidence and withholding exculpatory evidence. That’s not new; those aren’t new policies. This is a personnel issue. It’s the wrong people in the wrong positions of power. That’s not gonna be fixed with a new policy or procedure. It‘s gonna be fixed by replacing the people who did what they did in 2016.

Until Sunday, the words, “I was wrong” had never crossed the former Director’s lips. And even then, it was only because he’d been forced into a corner by Chris Wallace.

Either Comey has read the report himself or he’s spoken with an attorney at some point between his ill-advised op-ed and his interview with Wallace. Comey has engaged in a great deal of unethical/illegal behavior.

In late August, IG Horowitz released a report which focused on Comey and included a criminal referral. 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.

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.

Comey also employed a legal tool that only an experienced trial lawyer would be familiar with. The National Review’s Andrew McCarthy, who is a former assistant US attorney, immediately recognized it and explained how Comey had 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 wrote 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 explained 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 have been difficult to prosecute a case against him. Barr needed to find evidence that Comey had violated the law.

With all of the violations identified in the current IG report, I was stunned Horowitz issued no criminal referrals (other than the previously issued referral for Kevin Clinesmith).

I don’t understand how a man who signed off on the original FISA Court application and two of the three renewals for the warrant to surveil Carter Page for the purpose of spying on Trump, applications which were deliberately meant to mislead the FISA Court judges, has not been charged with a crime. The FBI knowingly used Christopher Steele’s unverified dossier as the basis of their FISA applications. We now know the dossier was the “central and essential” basis for the warrant application. The FBI knew with near certainty after their January 2017 interview with Steele’s primary sub-source the information was bogus. We also know that spies were sent to interact with and record members of the Trump campaign.

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. Yet, Horowitz did not issue a criminal referral.

If no one at the top levels of the FBI is held accountable for the massive fraud they tried to carry out, then America really does have a two-tier system of justice.

All eyes now turn to prosecutor John Durham.