White House Press Secretary Sarah Huckabee Sanders said Wednesday that it’s “pretty clean and clear” that former FBI director James Comey violated federal law by leaking a memo about his conversations with the president.
The Privacy Act bars the disclosure of “any record” under agency control “to any person” except in certain circumstances, the National Law Journal explains. A record is defined as “any item, collection or grouping of information about an individual that is maintained by an agency.”
Comey had disclosed in June that, after he was fired, he gave a memo summarizing a meeting with the president to a friend so he could give it to the press. The leak apparently led to a New York Times story about Trump allegedly telling Comey he hoped he could let go of the Michael Flynn investigation.
Sanders spoke in response to a question by a reporter who was following up on a comment by Sanders the previous day. The reporter asked Sanders why she considered the memo leak illegal if it didn’t contain classified information and it was released when Comey was a private citizen.
Sanders responded: “The memos that Comey leaked were created on an FBI computer while he was the director. He claims they were private property, but they clearly followed the protocol of an official FBI document. Leaking FBI memos on a sensitive case, regardless of classification, violates federal laws including the Privacy Act, standard FBI employment agreement, and nondisclosure agreement all personnel must sign. I think that’s pretty clean and clear that that would be a violation.”
Pressed by the reporter on what she would like to see happen, Sanders said: “The Department of Justice has to look into any allegations of whether or not something is illegal or not. That’s not up to me to decide. What I’ve said and what I’m talking about are facts. James Comey leaking of information, questionable statements under oath, politicizing an investigation—those are real reasons for why he was fired. And the president’s decision was 100 percent right.”
Sanders had said the previous day that the Justice Department should “certainly look at” charging Comey, the New York Times reported.
The National Law Journal offers the views of experts who differ on whether Sanders is right about a likely Privacy Act violation.
George Washington University law professor Jonathan Turley says it’s likely that the memo leak violates the law because the memos qualify as records under its definition. “Imagine how ludicrous it would be if FBI officials could claim that field memos were personal diary entries,” Turley said. “They could destroy the reputation of citizens. They could undermine investigations.” Turley previously wrote about the issue here.
Taking the other side are Susan Hennessey, a former lawyer at the National Security Agency, and Brookings Institution fellow Benjamin Wittes, who is a friend of Comey’s.
“The mere fact these memos were prepared on an FBI computer doesn’t make them records within the definition of the Act,” they write at the Lawfare blog. “Records are things like fingerprints, educational, medical, investigative records, or financial data associated with individuals. It’s hard to even understand the argument for how Comey’s memory about his conversation with the president qualifies as a record, even if he jotted it down while in his office. And Sanders does not even attempt to describe whose Privacy Act rights might be at issue.”
Typo corrected at 12:50 p.m.