CARR:  Comey’s leak and constitutional protections, privilege standards

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Editor’s Note:  Retired U.S. Magistrate Judge Robert S. Carr of Charleston offers this perspective on the rules of public and private information, a topic that has particular import with the political hijinks going on these days in Washington, D.C.  While Statehouse Report doesn’t typically cover national issues, we believe this article brings a fresh view to help readers better understand news that is roiling the country.

By Robert S. Carr, special to Statehouse Report  |  The recent revelation and subsequent articles concerning the leak by former FBI Director James Comey to the New York Times  via a “friend” and the testimony of Attorney General Jeff Sessions highlight the complex world of privileged information and the lack of understanding of the serious nature of those privileges.

First, it is necessary to remember that privileges and secrets are protected, whether written or oral, and belong to governments and protected individuals  While it may be of significance who prepared a written document, it is the information that is subject to protection, not the piece of paper it is written on or who created the document.  For example, if I write a memo to our enemy following a top-level military meeting about a classified military operation, it is of little defense for me to say, “it is my memo.”  Indeed, it is even more damning.  And national security has been compromised.

Second, media reports often refer to Comey’s documents as classified or “not classified.”  However “classified” is just one of many statuses which may give information legal protection from public disclosure.

In the most technical sense, classified information is information which has been designated by a sovereign as sensitive, such as a state secret. This information and the documents containing it are subject to a variety of levels of classification such as “confidential,” “secret,” “top secret” and many other related categories that are not discrete classifications.   As far as I know, the information in Comey’s memos did not go through a specific formal classification process, although I suppose some could argue all discussions with the president about official business are considered by the government as sensitive at some level.

In this photo from 2013, former FBI Director James Comey spoke at the White House about being nominated by then President Barack Obama, right, to head the agency.  At left is former director Robert S. Mueller, appointed this year to serve as special counsel into an investigation of Russia’s involvement in the 2016 elections.

However even if Comey’s memos were not about sensitive state information, the information  still could be privileged or otherwise entitled to legal protection from public disclosure.

Privileged documents or information are those in which one or both parties have a legal right not to have the documents or the information  disclosed, that is, a right for the information to be safeguarded.  Privileges may be challenged in proper legal forums, but until ruled otherwise, a claim of privilege must be respected.

This privilege arises because of the nature of the parties involved, the circumstances of the discussion and the nature of the subject matter.  Examples of privilege include communications between attorneys and clients, priests and penitents, and in many jurisdictions, between doctors and patients or reporters and their sources and records.  Can you imagine if Comey had been a priest and divulged his discussions with the president, or an attorney and leaked his conversations with his client?  Come to think of it, Comey arguably was the government’s — and thus the president’s — attorney with regard to criminal matters and investigations.  Likewise Sessions could easily have asserted attorney client privilege concerning his discussions with the president.

One such privilege is executive privilege.  It is the  privilege given to the president of the United States and other members of the executive branch to protect information and personnel relating to the executive  branch from disclosure to  legislative and judicial branches of government..  It is a constitutional right recognized by the U.S. Supreme Court as part of the separation of powers.  Comey’s actions deprived the president of his right of privilege. How could the president  endure the judicial trials to protect that privilege when Comey had already leaked the information?  Furthermore while some may question the extent to which General Sessions mentioned executive privilege, it is noteworthy that a well-trained and experienced attorney and high-ranking government official like Director Comey did not once hesitate to disclose information or answer a question out of respect for the right of the presidency. In the events now before the country, it is patently clear that the former director of the FBI deliberately and surreptitiously deprived the president of an essential right to safeguard the constitutional balance of powers in our government to further the director’s desire for the appointment of a special prosecutor.

This gives me great pause.

It is an admission of an assault at the highest levels on the very fabric of our government to achieve a personal political end.  It is a breach of unfathomable proportions.  It is Shakespearian.

Still, the United States and all of its states have determined that government documents should be in the sunshine, open to the public, under the Freedom of Information Act.  These are documents which the government has determined by law the public should be able to see.  Of course, there are procedures to be followed and rules to be applied.  Nevertheless, want to see James Comey’s federal financial disclosure forms or President Donald Trump’s financial disclosure forms?  All anyone has to do is ask, and since it is the government, pay a copying fee.

But even here, the United States has limits.  One of those limits is that information concerning ongoing criminal investigations is exempt from public disclosure under the Freedom of Information Act, but the agency may waive that exemption.  Think what a field day it would have been to be able to compel production of the records of then ongoing, notable criminal investigations, such as the Clinton investigations (take your pick).

Again, Comey circumvented the protections of the law for information of ongoing criminal investigations, by surreptitiously sending the information to the New York Times and only the New York Times.

In short, there is no getting around the fact that at the highest level of government, the U.S. Constitution was violated to undermine the presidency for personal political gain.  Director Comey violated his oath of office to uphold the Constitution and breached legal and ethical standards in his disclosure.  The question now is whether there is a remedy.

Robert S. Carr served as a U.S. Magistrate Judge for the U.S. District Court’s District of South Carolina for more than 25 years.  He is a founder of the Charleston School of Law.  He lives in Charleston.  Have a comment?  Send to:


One Comment

  1. David Sweatt says:

    Comey’s disclosure was premeditated and executed in spite of his very specific and detailed knowledge of the U.S. Constitution and executive privilege.Judge Carr describes the events directly and clearly.

    Comey’s transparent motives are detestable: he arrogated to himself these “leaks” in full view of the nation and portrayed himself as a martyr. There were other ways that he could have made his ostensibly heroic one man efforts to save the republic. But hubris stood in the way.

    When the top FBI guy does this, is it any wonder that our bureaucrats in D.C. are so proud to do this all the time?

    D.C. was built on a swamp. The stench is growing.

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