1. Opinion

Another voice: The smear defense

Published Sep. 18, 2017

Faced with an ongoing special counsel investigation, the White House appears to have settled on a novel method of defending President Donald Trump in the court of public opinion: smearing James Comey. Three times this past week, Trump's press secretary Sarah Huckabee Sanders accused the former FBI director of possible criminal wrongdoing. While leveling such charges in the absence of any evidence would have been inappropriate enough, Sanders went on each time to hint that the Justice Department should "look at" Comey's supposed transgressions — a wink and a nod that borders on a threat to use law enforcement as a political tool against the president's enemies.

Speaking from the White House lectern, Sanders suggested that Comey had violated the law both in giving false testimony before Congress and in sharing with the New York Times a memo documenting the president's request that the FBI drop its investigation into former national security adviser Michael Flynn. When asked why she believed Comey's conduct to have been illegal, Sanders presented a hodgepodge of legal arguments with little relevance to the former director's actions.

According to Comey's sworn testimony, the memo he provided to the newspaper did not contain classified information. This rules out his having violated his nondisclosure agreement with the FBI. Yet Sanders pointed to that agreement along with the Privacy Act, which governs disclosure of personal information contained in government files, such as medical records. There's nothing to suggest that Comey's memo contained any information that would be protected under the statute or that the memo was housed with FBI records. Sanders stated that the former director prepared the memo on a government computer. But even if that were enough to transform the document into a record covered by the Privacy Act — which is far from clear — there's no public evidence to support Sanders' claim that Comey used an FBI computer to draft that particular memo.

Sanders' strongest argument is that Comey may have transgressed the terms of his employment agreement with the FBI. But breach of that agreement would not be illegal. And Comey had already been fired when he passed the memo to the New York Times.

The legal reasoning behind Sanders' attacks on Comey may be risible, but the White House's willingness to groundlessly malign an adversary should be taken seriously. It's one thing for the president's legal defense team to try to persuade the public and the special counsel that Comey is not a credible witness. It's quite another to leverage the power of the presidency against a political adversary and hint at a Justice Department investigation on the basis of paper-thin claims. By now it may be naive to hope that Trump will come to respect the importance of independent law enforcement. But he would be wise to keep in mind the catastrophe that engulfed his administration when he assaulted that independence by firing Comey — and abandon this latest attack.


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