James Comey, Andrew McCabe, and the Office of the Inspector General

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law & Procedure Practice Group, was recorded on Tuesday, September 10, 2019, during a live teleforum conference call held exclusively for Federalist Society members.    

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is on "James Comey, Andrew McCabe, and the Office of the Inspector General." My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are very fortunate to have with us a couple of regular returning guests. First is Mr. John Malcolm, who is Vice President at the Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies, and Senior Legal Fellow at the Heritage Foundation.  And with us is Professor John C. Yoo, who is a Professor at the University of California Berkeley School of Law and worked in the Bush administration with John Malcom.

 

      So after our speakers give their remarks today, we will have time for an audience Q&A, so please keep in mind what questions you have for any of their remarks, for this topic, one or both of them, you name it. Thank you both for sharing with us today. John Malcolm, I believe the floor is yours to begin.

 

John Malcolm:  Well, thank you, Wesley. I appreciate it. It's great to be on another teleforum with my good friend, John Yoo. So we're here to talk about a couple of IG reports, and I'll first talk about Andrew McCabe. Actually, the McCabe IG report came out a while ago in February 2018, but it's been in the news lately because it's been widely reported that federal prosecutors are nearing a decision about whether to indict Andrew McCabe for lying to the federal agent.

 

      McCabe's attorney -- his team is led, by the way, by Michael Bromwich, who's a former DOJ Inspector General. Most recently he was on the legal team with Christine Blasey Ford during the Kavanaugh confirmation hearings. McCabe's legal team, headed by Bromwich, has had two separate meetings, one with Jessie Liu, the U.S. Attorney in the District of Colombia, and the second with Jeffrey Rosen, the Deputy Attorney General, presumably to try to talk the department out of indicting McCabe.

 

      So McCabe, just to remind listeners, was a 21-year FBI veteran. He spent two years as the Deputy Director of the FBI and three months as the Acting Director after President Trump fired Jim Comey and prior to Chris Wray's confirmation.

 

      So the basis of the charge is sort of laid out in the Inspector General's report. The Inspector General faulted McCabe for a lack of candor, both in his dealings with Jim Comey and also in connection with a leak investigation that the FBI and then the OIG undertook. McCabe, by the way, recently signed on with CNN as a contributing analyst. He was fired by then-Attorney General Jeff Sessions two days before his scheduled retirement. Sessions said that this decision was based on the Inspector General's report.

 

      However, McCabe recently filed a lawsuit against the Department of Justice and the FBI, saying that his termination was politically motivated and was the result of pressure applied by President Trump because of McCabe's role in overseeing Operation Crossfire Hurricane, which was the investigation looking for potential connections between folks in the Trump campaign and Russian operatives attempting to interfere with the 2016 election.

 

      All right. So what was this all about? So in 2016, in the run-up to the very hotly contested presidential election, the FBI was conducting two separate investigations that potentially implicated Hillary Clinton, stemming from her tenure as Secretary of State. One of them was Operation Midyear Exam, which dealt with her alleged misuse of a private email server to receive, store, and transmit classified information, and the other involved an alleged pay-to-play scandal involving the Clinton Foundation. If you made a large donation to the Clinton Foundation, you got unprecedented access and other favors by Secretary Clinton and the State Department; at least, those were the allegations. And Andrew McCabe played a significant role in overseeing both of those investigations.

 

      Now, on July 5 of 2016, Comey publicly announced that the FBI was going to recommend against filing charges against Hillary Clinton, pursuant to Operation Midyear Exam for her misuse of a personal email server. Two days later, he was testifying before the House Oversight Committee, and he was asked whether the FBI was still investigating the Clinton Foundation. He declined to answer that question, and he did the same thing before the House Judiciary Committee a couple of months later in September.

 

      In the intervening time period, on August the 12th, Andrew McCabe got a telephone call. And this is undisputed. Both parties to this conversation acknowledge that this happened. He got a telephone call from the Principal Associate Attorney General. It was reported that this was Matthew [Axelrod]. And he was a close confidant to then-Deputy Attorney General Sally Yates. And according to McCabe, Axelrod, or the PADAG, Principal Associate Deputy Attorney General, the PADAG was really angry at McCabe because the FBI appeared to be still pursuing the Clinton Foundation investigation during this election season. And the PADAG informed McCabe that DOJ considered this to be a matter that was dormant, and that they were not interested in pursuing prosecution.

 

      McCabe said it was a very dramatic call. It was unprecedented that he push back. And he said to the PADAG, "Are you telling me that I need to shut down a validly predicated investigation?" McCabe said there was a pause, and that the PADAG responded, "Of course not." Both parties to this conversation confirm the substance of this call. However, the PADAG said that McCabe's characterization that this was some attempt at political interference was unfair.

 

      All right. That happens in August. On October 23rd, The Wall Street Journal published an article. It was written by a guy named Devlin Barrett who now works at The Washington Post. And in that article, he pointed out that a political action committee that was run by the then-Virginia Governor Terry McAuliffe, a very close Clinton confidant, and the Virginia Democratic Party had contributed more than $675,000 to the unsuccessful state senate campaign of Andrew McCabe's wife, Dr. Jill McCabe, at the same time that McCabe was running the FBI's Washington Field Office and providing assistance to the Clinton probes. So this article was pointing out that, "Gee, isn't this a conflict of interest that the guy who's involved in running these investigations, his wife is receiving huge donations, by far the biggest set of donations from very, very close Clinton confidants?" So that comes out on October the 23rd.

 

      The next day, Barrett called the FBI's Office of Public Affairs and said that he was working on a follow-up story about McCabe's oversight and any potential connections between Andrew McCabe and his oversight and the contributions that had been made to McCabe's wife. The following day, McCabe hears all of this and instructs the head of the Office of Public Affairs and FBI Special Counsel Lisa Page, the one who later was disclosed had an affair with Peter Strzok, that they should call Barrett back and just sort of be in receive mode, find out what Barrett is snooping around about.

 

      The next day, McCabe is on a telephone conversation in which the Attorney General is ripping a couple of people in charge of the FBI's New York Field Office for leaking to the press. This was for an unrelated investigation. It had to do with the death of Eric Garner, but Loretta Lynch is ripping into the FBI Field Office and saying that they are a source of leaks.

 

      The following morning, Comey assembles an investigative team. They have now discovered, as everyone will remember, new Clinton-related emails on the laptop of Anthony Weiner, who was married at the time to Huma Abedin, who was the Vice Chair of Clinton's presidential campaign and also a former Deputy Chief of Staff to Clinton when she was Secretary of State. During that call, Comey asks McCabe to get off of the call, and Comey said later it was because of appearance issues in light of The Wall Street Journal story that had appeared three days beforehand. McCabe says it was for different reasons, but Comey asked him to drop off that call.

 

      That afternoon, McCabe speaks to Lisa Page. Lisa Page says, "I've now had a conversation with the reporter Devlin Barrett. Devlin Barrett tells me that he has a confidential source who is going to say that McCabe ordered the FBI to basically shut down the Clinton investigation probe until after the election, and he's going to put in his story that this was being done for an improper purpose because of the campaign contributions that were going to McCabe's wife."

 

      McCabe is incensed by this and tells Lisa Page, "That is completely untrue. In fact, I had this conversation with the PADAG back on August 12th in which he told me to shut down the investigation, and I told him I wasn't going to do it." And he authorizes Lisa Page to call the reporter back and to leak that information. And there's a lot of texts and phone records that confirm that Page and McCabe communicated with each other several times that day.

 

      That Sunday, Barrett's follow-up story appears, and it lays all of this stuff out. It lays bare about the conversation with the PADAG and the tension between the top brass at the FBI and the Justice Department. And also, for the first time, it tacitly acknowledges that the FBI, in fact, does have an ongoing investigation against the Clinton Foundation. McCabe, one could surmise, in an attempt to draw attention away from himself as the source of the leak, makes separate calls to two different officials at the New York City FBI and reams them out for the leaks that have now appeared in this follow-up story. The next day, Comey convenes a staff meeting to talk about this and say how terrible all of these leaks are, and not a word, according to Comey, from McCabe.

 

      All right. So a leak investigation is begun. And according to Inspector General Michael Horowitz, on two different occasions, in May 2017 and in late July 2017, McCabe was asked by first the FBI and then the Office of Inspector General about these leaks. And he says, "No, I have no idea how these leaks happened. I never authorized anybody to leak any of this information. Don't know anything about it." During the second interview, he is actually shown a series of text messages between Lisa Page and another official which suggests that Lisa Page was the source of the leak—she was—and he's asked about that. He denies all of this.

 

      Two days later, he calls the Office of the Inspector General and goes, "You know, I've been thinking about this some more, and yeah, I actually think that I was the person who authorized Lisa Page to leak that information. I was confused when I was asked about this before. I misspoke. And oh, by the way, I now remember that I had a conversation with Jim Comey after his staff meeting, after the initial report came out, and I told him, I said, 'Yeah, Director Comey, I was the source of that leak. I authorized Lisa Page to do this because I really thought that this was going to be a good idea to rebut the narrative that somehow the FBI was caving to political pressure. And yeah, I realize that this might anger some people at the Department of Justice, but I thought it was worth doing.'" And he says that his response was that Comey didn't react negatively. He just kind of accepted it.

 

      Comey is asked about this and says, essentially, "No, and hell no." He would never have authorized this leak, that, in fact, he remembers that McCabe tried to give him the exact opposite impression, that he was angry about the leak and had no idea who it was. And so this is what McCabe may be charged with is leaking this information, lying about it, and trying to make it seem as if this was done for the FBI's benefit when the person who stood to suffer the most reputational damage was not the FBI, it was him.

 

      Now, one of the things that the Department of Justice, I think, is going to keep in the back of its mind is the potential danger that it will suffer if, in fact, it does not charge Andrew McCabe. So some people will say, "Look, if George Papadopoulos, or Michael Flynn, or somebody who's affiliated with Trump and outside the hierarchy of the Department of Justice or the FBI, if they lie to an FBI agent, they get charged. But if you're Andrew McCabe, and you're a high-ranking FBI official, then you get a pass." This won't be a very easy case to win.

 

      I would add, if he does get charged, one factor is that although it didn't fit within FBI policy as a reason to leak the information, Andrew McCabe as the Deputy Director was, in fact, one of the very, very few people who was authorized to leak information to the media if he thought it was in the FBI's best interest to do so. Another problem is that the government's going to have to prove that McCabe intentionally lied about all of this, that he wasn't just confused or misspoke. He's going to have to persuade all members of the jury of his guilt beyond a reasonable doubt. And D.C. juries not only are notoriously liberal, they do not like Donald Trump.

 

      I am a D.C. voter. I voted for the President, but in 2016, Donald Trump got exactly 4.1 percent of the popular vote in the District, by far the lowest total in the nation and the lowest total ever received by any Republican ever since District voters have been granted the right to vote. And the President has been on somewhat of a tear in terms of his Twitter account, blasting Andrew McCabe. And so if Andrew McCabe is able to get all of this in and persuade a jury which is disinclined to like Donald Trump to begin with that in fact this prosecution is politically motivated and that it was brought because of pressure by the President and not because of any misconduct by McCabe, it might be a tough row to hoe for the prosecutors to win that case.

 

      So with that, I think I will stop and turn it over to John for his comments.

 

Prof. John Yoo:  That was really thorough. I'm going to have to confess when I discuss Comey, I'm not going to be as detailed. It's so painful. It reminds me about working in the Justice Department again.

 

[Laughter]

 

      So I just want to focus on the last point that John made about how this would seem inequitable as an exercise of prosecutorial discretion were the Justice Department to choose not to charge McCabe. Because compare his case to other high-profile cases involving people like George Papadopoulos, these little fish, but consider important people like the National Security Advisor, Michael Flynn.

 

      Or maybe it's been a while now, but also think about the case of Scooter Libby, who -- both of these people -- Scooter, who was, for those who don't remember, he was Vice President Cheney's Chief of Staff and was questioned about what he said to a reporter, similar facts. Even when the investigators—this was Pat Fitzgerald, Jim Comey's good buddy and a well-know figure at the Justice Department who was Special counsel—even when Pat Fitzgerald, the independent counsel there had already figured out that Scooter Libby had not actually leaked the information that they were pursuing.

 

      So if you remember that case, it really came down to one or two statements that Libby made about whether he had talked to a New York Times reporter, Judy Miller, or not, and when exactly, and what he said. And I think, based, as I think we've now learned, on I think very flimsy evidence, which, actually, the New York Times reporter's now said was incorrect, Scooter Libby went to jail. He's been the subject of pardon and so on, but I think if the Justice Department were not to charge McCabe for similar leak to the press, but one where he actually intentionally lied and then tried to cover up because the lie was to his benefit, I think that shows the inequity in the way the Justice Department is considering using its discretion.

 

      The second point I would make that I think goes beyond that is I think it's particularly important that Justice Department officials, and particularly FBI officials, hold themselves to that higher standard because if the public sees that it's okay for them to lie, then why would anybody cooperate with the FBI in the future? Why would anyone tell the FBI the truth? Why would anyone cooperate with Justice Department prosecutors?

 

      In a related matter, this was one of the reasons I thought that President Trump actually should have sat down and answered questions from the special counsel because it's not just that McCabe or Comey, who we'll talk about in a second, or even Trump are just regular witnesses. They are actually part of the Article 2 constitutional law enforcement mechanism, and that depends on, as we're going to see with the Comey report from the IG, that depends on the voluntary cooperation of citizens with the thousands of FBI IG employees and Justice Department employees. And if you don't have that voluntary cooperation, doing justice, I think, would become impossible. So I'm afraid. I think someone like McCabe, the Deputy Director of the FBI, it's even more important that someone like that be investigated and charged if they have actually committed the crime of lying to their own agents. So that's my only comment there.

 

      Let me turn briefly to the IG report on the Comey memos. This is, for those of you who are following, this not the last, I think, time we're going to see Comey in an IG report. There's still a big one, maybe the biggest one yet is to come, which is the one about whether there was an abuse of the Foreign Intelligence Surveillance Act in launching the and conducting the investigation and surveillance into the Trump campaign during the 2016 elections.

 

      This is about a smaller matter, but it's fairly devastating, I think, in its conclusions about Jim Comey when he was FBI Director. This involved the memos that Jim Comey had written that he used to try to memorialize his conversations one-on-one with President Trump. There were seven of them. Comey kept some. Actually, I think he kept all of them at home. Some he gave to the FBI. Some he leaked to the media, though in a crafty way. Two of the seven memos had very small amounts of classified information in them.

 

      And so the two questions were, one, did Comey actually violate the classification laws by revealing or sharing the classified information in two of those seven memos, either with people who aren't authorized to receive them or with the press? And then the second question was did Comey actually violate the -- it's not in a criminal statute, but did he violate the norms, practices, things that are expressed in places like employment contracts and manuals that keep sensitive information that just law enforcement collects, even if it's not classified?

 

      So Comey, I think, was actually very crafty here and did the things that he did, as he actually openly said later, in a way to record these conversations and use them to try to prompt the appointment of a special counsel. At the same time, he did it in a way so as not to be subject to the accusation that he leaked classified information. He came, I think, as close as you can get to that line. Maybe he even put his little toe over it. But I think, in general, he didn't leak classified information.

 

      But that obscures the real problem, which is that what he did seemed almost Hooveresque. What he was really doing was creating a file about President Trump. Although he kept saying, "I was doing it to protect myself and protect the FBI," the end result was that he had this file of all these things about President Trump, and then he selectively leaked it. I mean, in the report, it details -- and it came out in public later that Comey was giving copies of these memos to his lawyers who also happened to be his friends, and he directed one of them to actually go and basically read one of these memos over the phone to a New York Times reporter.

 

      And the reason I say Hooveresque is because this, I think, is a terrible thing for the Justice Department, particularly an FBI Director to have done this, to take in sensitive law enforcement information, which is supposed to be confidential, and to use it to leak and try to manipulate the press and the public discussion to attack someone that the Director doesn't like. And Comey succeeded. He ended up triggering a special counsel investigation, and it put the country though two years of turmoil when it turned out, in the end, as the Mueller report showed, that actually the Trump campaign had no elements of conspiracy or collusion, if that's the colloquial term, with the Russians.

 

      Let me just describe very quickly these -- I'm not going to go through these seven documents, but the most important one is the first one, Memo 1. And there's been some discussion of this, because I think there's an arguable case that what Comey was doing here actually wasn't even memorializing his conversation but was actually engaged in a sting operation on the President. This is an argument that Andy McCarthy has made, and I think he's got a case there for it. But Memo 1 is a description. Comey wrote the memo in January 7, 2017. Trump is not yet President. Comey participates in a briefing with the President-elect and other leaders of the intelligence community to brief Trump about the status of the investigation into Russian efforts to interfere with the election.

 

      Then, Comey has a second briefing after that briefing in which Comey raises what's now known as a Steele dossier, this sort of outrageous collection of rumors and innuendos and outright fabrications, and who knows, maybe some truth in there—I don't know. We'll find out when we see the next OIG report—about President Trump that was collected by a British intelligence official and allegedly relied on Russian sources and talks about Trump's -- particularly Trump's visit to Moscow and what he allegedly did with prostitutes in a hotel room there.

 

      Some of that memo, just a few -- maybe like one sentence, just very limited information about that memo -- that discussion, I'm sorry, constituted classified information. But what was remarkable about that memo is how Comey went about recording it. And he did this in conjunction not just with the top leadership of the FBI like his Chief of Staff and his General Counsel and so on, but he also, I believe, brought in the actual leaders of the team that were investigating the Russian collusion or Russian election meddling operation. So Comey goes in and he springs this on Trump, this Steele dossier stuff, and then he rushes back to his car where there's a laptop in wait so he could type up detailed notes immediately about the conversation.

 

      So people have said, I think with good reason, this is a strange thing to do. This doesn't sound like the way cabinet officers and top officials act when they go to the White House to consult with the President. This sounds like sending in an undercover agent into a mafia or a drug cartel meeting and springing something on somebody, see what they say, and then writing down immediately the notes so that you could use them in court, maybe even -- so there's an argument you could get around hearsay or something like that.

 

      People who make that claim -- I think there's an arguable claim. This is very bizarre for an FBI Director to act in this manner. It's not really the way you would sit down and say, "I'm going to record my conversation. Wait till we get to the office." But to pretend like, oh, it's so immediate you have to write it down in this laptop in the back of the FBI Director's car suggests maybe something else was going on. So I think there's an arguable claim for that.

 

      The other memo that's quite important in this report is the memo where -- it records a private dinner between Trump and Comey where Comey had said, "I was surprised I was invited by myself." This was the memo that got a lot of attention in the press because Comey has a great attention for detail and was talking, I think, about the clothing that the severs were wearing and so on. But this is the one where Trump basically said something along the lines of, "I expect loyalty." And then Comey says, "Well, I'll give you honesty." And then Trump says, "You mean honest loyalty." And then Comey says, "You'll get that." [Laughter] So I think that memo has been portrayed by Comey and Comey's camp as this kind of strange mafia boss way for Trump to talk to an FBI Director and not recognizing that the FBI Director has to be independent and maybe even an implicit effort to sort of gain influence over Comey.

 

      Those are really the two most important and noteworthy memos. But let me say, again, so what Comey does is he shares these memos, except for that first one which might have the classified information, he shares those other memos with his legal team, which include people like Pat Fitzgerald, who was a special counsel back from the Scooter Libby days, and a professor at Columbia Law School, and a fellow who was also, I believe, a former DOJ FBI person who had worked with Comey, shared those with those.

 

      And he kept them rather than turning them in to the FBI when he was fired from office by President Trump. And his explanation for this is he thought these were his personal papers. And this is the interesting legal part of the IG report, is the IG report says this whole idea of private papers has no legal foundation at all. They don't cite it, but they could have well cited in the report, there's a famous case for separation of powers scholars about Nixon because Nixon tried the same thing. He tried to keep all his papers from when he was President, said they were private papers, not the papers of the government. And actually interestingly, when the government took them to set up -- for the archives, I believe Nixon filed a takings claim. So this has actually been rejected before.

 

      But Comey said, "Oh, no, these are private papers. They're not federal government records. They're not the documents of the FBI. They're my private papers. I need them to protect myself. Or maybe I'm going to use them to write a memoir, who knows?"

 

      The IG report says quite clearly there is no basis for this claim, and they are quite right about this. And these are not private papers. These are recordings of what the President is saying to Jim Comey in his role as Director of the FBI. I couldn't think, actually, of documents that would be more federal government documents than these. And so one thing that the IG report says is this idea that the FBI Director can make up these memos, spread them around, use them with the press, is a misuse of federal records and rejects this claim that Comey could just keep them because he thought they were private.

 

      The second and more important conclusion of the report -- it doesn't go on at great length about this, but it says what Comey did was a violation of FBI and Justice Department rules and procedures which are designed to guarantee the confidentiality of information collected in investigations. And here's where I think the report is most damning is that the reason why Comey claimed -- or his justification for ignoring those rules is because he said—I think I've got it here—quote, "If I love this country, and I love the Department of Justice, and I love the FBI," and that justified his actions.

 

      The report says, and I think this is quite damning, the report says here, quote, "However, were current or former FBI employees to follow the former Director's example and disclose sensitive information in service of their own strongly held personal convictions, the FBI would be unable to dispatch its law enforcement duties properly." Because people would no longer cooperate or trust the FBI, and I think rightly so if we believe that FBI officials then were turning around with their investigatory files and spreading dirt about people they don't like.

 

      I think Jim Comey's been out there saying he's demanding an apology, I think, from President Trump and other critics of his who are claiming that he leaked classified information. But in the end, I think the person who ought to apologize is Jim Comey. I'm sorry to say it because he had, I think, a distinguished career before 9/11 and through 9/11 and the years after, but I'm afraid here he let down that Justice Department and the FBI that he said he loved so much because he thought he had this sort of higher vision of what he was doing. And he was sort of a self-righteous crusader to whom the normal rules did not apply, whereas I think, and I mentioned this with my comments on the McCabe and I'll turn it over to John to see what he thinks, is the very people who it's most important that they follow these kinds of rules are actually the ones that we entrust with this great power of investigation and prosecution. So John?

 

John Malcolm:  Yeah, so I agree with almost everything you said. A couple of just sort of factual, nitpicky things -- so he created these seven memos. He kept six of them. The first one, which you correctly said was the most important memo -- he actually -- it was bizarre, actually, all the circumstances in which it came about in his creation. All of what you said is correct. But it's the one memo where he followed procedure. He created the document on an FBI-secure computer. He left it at the FBI. It's the one memo he did not take home.

 

      He did take home the other six, and at the end of the day, actually four of the documents -- it was the first one that was at the secret level. There was another document that he created that was classified at the secret level, and then he had two other documents that were ultimately classified as confidential, which is the lowest level of classification, but they were classified. So he created four documents that contained classified information and he took home three of them. The other three, he's not out of the water with respect to those. Those were designated as "For Official Use Only," and for official use only means it does contain classified information, but it's to be disseminated on a need-to-know basis. And certainly, the New York Times is not a need-to-know basis.

 

      So why wasn't he charged? Well, I think the reason is because he had this bizarre claim that these were his personal documents. I'll mention something about that in a moment. But he shared the remaining six documents with his personal lawyers, who included Pat Fitzgerald, as you said, and this guy Daniel Richman, who's his buddy, a Columbia Law professor. And then he told Richman after the President said something along the lines of, "Oh, Comey better hope that I don't have tapes," he told Richman to leak one of those memos to the New York Times, but it was one of the for official use only memos. It was not one of the classified memos.

 

      Now, Richman had also talked to Comey about the loyalty dinner table conversation. That was a classified memo, but Richman says, "I actually didn't see the memo at the time we had that conversation. Comey just told me about that conversation. And I also leaked that to the New York Times reporter." So he was backchanneling all over the place, but in terms of he was sharing this information to people who didn't have clearances, that was clearly wrong. But in terms of leaking to the press, the one document that actually got leaked was not classified. And I suspect that's why they decided not to charge him, that it was too messy.

 

      And this whole claim that these were personal documents is, as John said, I think is more than bizarre. It's not like President Trump is having these conversations with Jim Comey because they are bosom buddies and lifelong pals. He's having this conversation with him because he is the FBI Director. Of course, that conversation is an official conversation. Any recordation of that conversation is an official conversation. It could arguably even have been subject to a valid claim of executive privilege. Comey, of course, did not give the President the opportunity to invoke the privilege, which was completely wrong.

 

      And I think that John is completely right. So Jim Comey -- some people said that this was the same thing when he was Deputy Attorney General, but I think he saw and probably sees himself as America's bastion of truth and America's Boy Scout. And that if he thinks that there is, to use his words, "a higher calling" that demands that he do something improper and violate rules, well, you know, the law c'est moi. It's Jim Comey. He thinks it's justified, and he'll do it.

 

      And as Michael Horowitz correctly pointed out, when you are in those positions, it is more important than ever that you follow procedures because the stakes are much higher. And the example you set for all of those people who are underneath you and the rest of the country that deals on a regular basis with the FBI, they're going to be watching what it is that you do.

 

      So with that, I think I'll stop there.

 

Wesley Hodges:  Well, very good. Looks like we do have two questions so far from the audience. Here's our first caller of the day.

 

Caller 1:  I wanted to thank Director Malcolm and Professor Yoo for an excellent set of remarks. My question tees off of --

 

Prof. John Yoo:  Hold on. You just promoted John Malcolm to Director of the FBI already?

 

[Laughter]

 

John Malcolm:  I took Meese Center Director.

 

Caller 1:  A higher office, which is director of the Meese Center, so…

 

John Malcolm:  I'll take it.

 

[Laughter]

 

Caller 1:  My question tees off of a remark that Professor Yoo had made about the circumstance with regards to General Flynn. I was wondering if both Director Malcolm and Professor Yoo might comment on why—something I don't understand—why under the False Statements Act the requirement that the statement be knowingly and willfully rendered as false, that it was knowingly and willfully rendered, presumably with an awareness of its falsity, that that's not enough of a protection. And we have lots of cases, Scooter Libby, General Flynn, arguably Mr. McCabe, of folks who will say that they misremembered something but find themselves ensnared with a false statements charge. And I'm wondering why the protection -- why the scienter requirements aren't seemingly enough.

 

      And B, related to that, whether you think that this is a moment for congressional reform if we're overcharging in this particular arena or, I don't know, maybe it's a pardon. General Flynn, Scooter Libby, and McCabe, all is freedom for those who have misremembered. And I'll take my responses off the air. Very grateful for the time.

 

John Malcolm:  So I think the scienter requirement is the same. It has to be a knowing and willful false statement on a material matter within the jurisdiction of the FBI. And they can say all they want to, "I misremembered," or "I was confused," or "I didn't know," in the same way that somebody, I suppose, can say, "Oh, is that cocaine in my pocket?" But the question of what is the evidence, and do you believe it or not? So McCabe will say, "Oh, I was just confused, and I misremembered."

 

      And people are going to say, "Baloney. You were covering up this leak because you knew Comey was never going to approve it. You were the person who stood to benefit because you were the person who was being dinged up by these Wallstreet Journal reports. And the only reason you came forward after having denied all of this twice was after you were shown text messages between Lisa Page and somebody else. It's pretty obvious to you that the OIG and the FBI know that Lisa Page was the source, which puts them one step away from you. And so you figured, okay, they're on to me. I better limit my damage by calling up and saying, 'Oh, I was confused.'" That was an after-the-fact excuse.

 

      Same thing, I suppose, with Michael Flynn. He was asked, "Did you have a conversation with Ambassador Sergey Kislyak, and did you talk about sanctions?" He plead guilty to lying about that and saying, "Well, if I did talk to him, it wasn't about sanctions," when he clearly had talked to him about sanctions. So the scienter requirement is still the same. The point is a good one, which is that a lot of times, it's not any underlying criminal activity that gets you in trouble. It's the cover up. It's lying about it or telling some lie in connection with that investigation.

 

      So John gave a really great example of Scooter Libby. So Pat Fitzgerald, by the time Scooter Libby is interviewed, knows darn well that the Deputy Secretary of State, Richard Armitage, was the source of the leak about Valerie Plame. But he was going on and asking other questions about other conversations with other reporters, and he claims that Scooter Libby lied.

 

      So it's not that Scooter Libby did anything wrong, but it was a matter within the jurisdiction of the FBI. They considered it a material matter in terms of their investigation. They asked about it, and they believe that he lied. And he actually went to trial and got convicted. There are a lot of critics of Title 18 U.S.C. §1001, which is what makes it a crime to lie to a federal agent, saying that it's the hook to get lots of people who, in fact, did not engage in any underlying criminal conduct, but they were sketchy in terms of their talking about it.

 

Prof. John Yoo:  Let me also talk about Flynn rather than McCabe because I think the contrast is very strong when you take the facts as John Malcolm had described them and then compare them with Flynn. If you recall, Flynn is the National Security Advisor, and he had two conversations with the Russian ambassador during this transition. And so these FBI agents go to see Flynn, and they ask him about this.

 

      Now, the reason why I think the government wants to know, in part, is because they have a FISA warrant, it appears, which they should, on the Russian ambassador to the United States. And so they're recording conversations that that ambassador is having with people, and I guess they pick up that he's talked to Flynn. The substance of the conversations was about whether the United States under the new Trump administration, I think, might lift sanctions. And then there's some discussion, I think, about the United Nations and a resolution about Israeli settlements, and how Russia's going to vote.

 

      So the thing is that Flynn -- the arguable case is that Flynn didn't even think or understand that he was being interviewed by the FBI for purposes of this kind of leak investigation. As the National Security Advisor, part of his job would be to keep fully briefed and aware of the counterintelligence investigations that the FBI is engaged in. And it appears that Flynn thought that the FBI agents who were coming over were coming to talk to him about that. I think, if I remember the facts, Flynn doesn't say he needs a lawyer. He doesn't call anyone from the White House Counsel's Office over. He seems to think it's a briefing, and these FBI agents sort of record him saying that he didn't actually talk to the Russian ambassador when they had him on tape doing so.

 

      It's not clear that Flynn is lying in any way to advantage himself. He might have misunderstood the questions they were asking him because again, I think he thought they were just talking about who knows what as a part of a counterintelligence operation. And the statements, if they're true or not, are of very little consequence. I think that if we think that Michael Flynn ought to be prosecuted for lying to the FBI, I think it's hard to say that McCabe doesn't meet that similar standard, whether it's meeting the scienter requirement or not.

 

John Malcolm:  I agree with all that. A couple of other things, just to add because the whole Michael Flynn thing just stunk. I mean, this was during the transition period, and the normal protocol for the FBI to go to speak to the National Security Advisor, or an incoming National Security Advisor, is to call the White House Counsel's Office. None of that happened, and in fact, Comey was asked about it. He said, "Yeah, well, they were in the middle of the transition. They were all busy and confused, and it was all hectic. So we decided, basically, to take advantage of that opportunity, just go knock on his door and see whether he would speak to us without alerting anybody to anything," which is exactly what they did. And one of interviewing agents, of course, ended up being Peter Strzok, who, it turns out, had this complete hatred of all things Donald Trump connected.

 

      But, look, at the end of the day, Michael Flynn did plead guilty. We can speculate as to why he did. Certainly, there was a report that indicated that that wasn't his only legal trouble, that he may have had violations, or at least they were looking into violations of the Foreign Agents Registration Act, the very thing that Greg Craig just got acquitted for. So there was some speculation that perhaps his son was somehow under investigation. It's unclear as to why Michael Flynn decided to plead guilty. But the whole circumstances surrounding that interview of him, particularly when it would have been perfectly reasonable for an incoming National Security Advisor to speak to the Russian ambassador about relations between the two countries, was just very troubling.

 

Wesley Hodges:  Well, very good. Let's go ahead and go to our next caller.

 

Phil Van Hoy:  Hello. This is Phil Van Hoy in Charlotte. I understand the dilemma about possibly not prosecuting  because of the difficulty of getting a raiseable jury in D.C. The consequences of that if there's a decision made not to prosecute inevitably would seem to me to be if I'm in a Democratic administration, I can flaunt the law and violate every responsibility I've got because there'll be no consequences because I won't be prosecuted. So is there some way around that, a change of venue, anything at all of that nature?

 

John Malcolm:  Look, I don't disagree with any of the statement that you made leading up to your question. I think it would be unusual. You would have to have the prosecution coming in and saying venue should be changed because they can't possibly pick an unbiased jury. Usually, it's very difficult to get venue changed, and I would say almost invariably, but I think it is invariably because the defendant comes in and says that there's been so much pre-trial publicity that he can't possibly get an unbiased jury. Here, he would be begging for a D.C. jury. It would be the government that would be saying, "No, no, no, no. We need to get as far away from Washington D.C.," perhaps not as far as California, where John is, "but somewhere in between in the Midwest. That's where we want to be."

 

Prof. John Yoo:  See now, I think Trump got more percentage of the vote in California than he did in D.C.

 

John Malcolm:  Yeah, 4.1 percent or something.

 

Phil Van Hoy:  So you don't see a solution?

 

John Malcom:  Look, I think all of the -- the leak, the meeting with Comey, the interviews with the FBI, the interviews with the Office of Inspector General, they all took place in the District of Columbia. There is no, so far as I can tell -- maybe they could get venue in New York where the reporter was at the time, but I don't see any way around if the case gets indicted and goes to trial, of getting it in front of a D.C. jury. I just don't see how you get out of that.

 

Phil Van Hoy:  Well, is my conclusion wrong? The Orwellian conclusion, some of us are more equal than others. And if you're a Democrat and misbehave and violate the law in D.C., you've got carte blanche to do that.

 

John Malcom:  Yeah. Look, I agreed with everything that you said. I mean, I think that this kind of shady dealings and lying at the highest levels and FISA -- whenever an administration does it, for whatever reasons they do it, it should just never happen. To the extent to which information can be declassified and sunshine become the best disinfectant to make sure that no political candidate or political party or the American people have to go through something like this again. It just ought to happen, and it ought to be a complete housecleaning.

 

      So I agree with you that if people somehow think that they can get away with it because they're going to get jury nullification or an outright acquittal, that is not a good enough reason not to at least try if you think a crime was committed and think you can prove it to a reasonable set of jurors beyond a reasonable doubt.

 

Wesley Hodges:  Thank you, caller. Here is our next caller.

 

Brian Calistri:  Hi. This is Brian Calistri from Philadelphia. Just a question about whether those press reports that the individuals within the FBI that determined the classification of the Comey memos, whether those individuals really were Lisa Page and Peter Strzok. That just seemed a little bit too rich for my belief, but I was wondering if there was any actual confirmation of that.

 

John Malcolm:  Do you? I remember that they were classified, but I don't remember them doing it.

 

Prof. John Yoo:  Yeah, I don't remember seeing that.

 

John Malcolm:  But go ahead.

 

Prof. John Yoo:  No, no. I agree with John. I didn't see that in the report. That doesn't mean they didn't do it; it's just I don't think the IG report itself has a discussion of who the actual figures were.

 

Brian Calistri:  Yeah, the articles I saw were like, I think, American Spectator. They were conservative sources, but they seemed somewhat source-based, I guess, and identified Strzok, Page, and also, I think, Baker as the parties within the FBI that determined the classified status because that classification, I guess, would have been done in the spring of '17 or so when they were all still employed there. But I had not seen that within the IG report.

 

John Malcolm:  Yeah, I just don't remember that. It's possible, but I just don't remember it.

 

Prof. John Yoo:  Right. Yeah, I don't remember it either. Well, it is kind of interesting, if you look at that report, as you have, some of these people are on the one hand saying, "Why is he showing these to us, these memos?" And then I think it was Lisa Page sort of surreptitiously was copying them and keeping her own set of files in case she needed them later. That really gives you an idea what it was like, I think, working in the FBI at the time.

 

      And then just the other second point was that, I mean, this could be faux outrage. I don't think so, but one thing the IG report also noted was how surprised and shocked and disappointed all those people you just mentioned, who themselves have all their own problems, were to lean that Comey had kept these memos at home and had been leaking their contents to the press. It sort of reminds me of McCabe when he had been criticizing people in public about leaking and has been telling President Trump that he would never leak.

 

John Malcolm:  So I just looked at the report, and you are right. It says the initial review of the memos to identify any potentially classified information was performed by Baker, that was FBI General Counsel James Baker, Unit Chief Page, and Strzok. So that was at least -- they did the initial review. There were probably other people involved in that review too, but they are the -- so Bill Priestap, another high-ranking FBI official. So others were involved in that, but the initial review was, in fact, conducted by Baker, Page, and Strzok. I'd forgotten that, and you were right about that. It's on page 42 of the report.

 

Wesley Hodges:  Thank you. Next caller, you are up.

 

Caller 4:  Yes. Thank you very much. I appreciate the comments of both you gentlemen. I'd like to focus on one small point, and that's just one of [inaudible 51:26] dealing with Comey. I'm not going to defend his leaking. I'm not going to defend potential mishandling of classified information. But this point of concern is I've spent 40 years as a government employee in a variety of different agencies to include as a prosecutor with the Justice Department, and the IG here pulls out a DOJ policy statement that basically says any MFRs that you might create during the course of your employment are government records.

 

      I'll be frank with you. I've never heard of that Justice Department policy. Nobody ever told us about the existence of that policy. For the better part of the last hour as you gentlemen were on, I've been trying to find a copy of it in DOJ records. I can't find it on the website. I can't find it on the various places where this is all listed. And I guess the fairness question here is that if the IG is trying to say, "You can't create these records. And by doing it and carrying them off, they're not personal property. They're a government record." Don't we have an obligation to inform people about this before we seek to hold them accountable?

 

      I guess my point here is that as a former DOJ employee, I never knew this existed. I probably created a variety of memorandums of record all over my career. I did put them in case files before I left, and I didn't seek to keep them. But I always felt that they were sort of personal property. And I guess I'm concerned here of being held accountable for an obscure policy that really hasn't been informed to the work force nor aggressively enforced in the past.

 

Prof. John Yoo:  I believe the notification actually, in part, comes when you -- if you look at the IG report, they say that it comes initially when you sign the various forms you get when you start your job, employment contract, various disclosure forms. But the other thing is I believe the actual source of it is -- and this is not in the IG report. They don't go into great detail about it. You are quite right on that point. But I think the original source of it is the Federal Records Act.

 

      And there's a federal statute which says the documents you create are now the property of the federal government and what happens to them when you -- and there's actually a procedure set out where you can, as a former government official, request to get the things that you created, that you generated, all the memorandums for the record that you're talking about that you generate. You're allowed to have access to them after you leave if you go through the right procedures.

 

      But I think that it comes right out of federal statutory law, and then that and then this other related law called the Presidential Records Act. That's what generates the cases at the Supreme Court, that talk about no, when you generate documents that involve your role as a federal official, involve your duties or so on, those are the property of the government.

 

John Malcolm:  I have nothing to add about that. I mean, first of all, whoever the caller was, thank you for your public service. I mean, both as a career prosecutor for a while and then political appointee like John during the Bush administration, I do remember sort of receiving briefings, and there was no question in my mind that if something was not public record and it was part of an investigative file or part of decision making about some course of action, either a policy matter or a case-related matter, it was a government document. It wasn't my personal records.

 

Caller 4:  Certainly, on case related information and [inaudible 54:44] of concerns about breaking [inaudible 54:46] obligations, I mean, everybody's pretty well aware of the fact that if you're creating a record like that, that has to become part of the case file. But I would suggest you were both political appointees at the Department of Justice, and you should not be surprised if career officials at the department are having meetings with political appointees and things are stated that are of concern. People might be creating private MFRs that don't necessarily become part of a case file. And if those things are now being considered to be official records, I think the department has to do a better job of informing everybody, "Any piece of paper you create regarding work that you did here is a government record and has to be preserved and treated accordingly."

 

John Malcolm:  That may be so, although I'm going to push back on that a little bit, which is if you're having those conversations, you are having internal Executive branch decision making conversations, you are not having those in your private capacity. And just like if Jim Comey is having dinner with Donald Trump, it is not because they went to high school together. It's because these are two officials having official discussions. Now, bad things can happen during those discussions that may concern you. There may be things that you can do about it after the fact, but one thing you can't do is to sort of memorialize that and walk away with it.

 

Prof. John Yoo:  Maybe it's because I worked in OLC at the Justice Department, and we actually do a lot of work on this question there about papers, particularly presidential papers, I was just familiar with it. But I think it is in the original employment contract and documents you sign when you start your service at the department. And those are the actual -- if you look at the IG report, that's what the IG repeatedly cites to show that Comey knew what he was supposed to do with these documents. And he just blew by it because he said, "I love the Justice Department and the FBI more."

 

John Malcolm:  Well, it wasn't just that he cited him for violations of FBI policy. He also cited him for violating his employment agreement. So this was something that at one point, at least, had been discussed with Jim Comey.

 

Wesley Hodges:  Very good. Looking at the time, we're at the top of the hour. So I just want to take a moment and turn the mike back to John Yoo and John Malcolm to see if they have any closing thoughts for us before we end today. John Malcolm, why don't you start?

 

John Malcolm:  This is all very interesting stuff. As John alluded to, there are other shoes to drop. We have another report, perhaps the biggest of all, into alleged abuse of the FISA process coming out of Inspector General Michael Horowitz. And of course, John Durham, the U.S. Attorney in Connecticut is doing his thing. And so there's a lot more to come, and Jim Comey and Andrew McCabe will feature prominently in those actions. So probably not the last teleforum that John and I will be doing on Andrew McCabe and Jim Comey.

 

Prof. John Yoo:  I couldn't have said it better myself.

 

Wesley Hodges:  Well, very good. We look forward to the next time we can have you both back. But on that note, I'd like to thank you both for the benefit of your very valuable time and expertise today. We welcome all listener feedback by email at [email protected]. Thank you all for joining for the call. We are now adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at www.fedsoc.org/multimedia.