On Comey Firing, James Trusty Discusses Former FBI Director’s Freedom of Speech
May 11, 2017
What can fired FBI boss James Comey say now? His opinion, for starters
Many people want to know Comey’s take on why Trump fired him this week
Newly fired FBI director James Comey may not have a job, but lawmakers are very eager to know whether he’s got a story to share on Capitol Hill.
Last week, a Senate panel heard from James Comey the law-enforcement official. Next Tuesday, the Senate intelligence committee investigating Russian meddling in the U.S. election wants to hear from James Comey the private citizen during a closed-door hearing.
The man who was overseeing the investigation into possible collusion between the Russians and members of President Donald Trump’s team is now free to give testimony of a sort he couldn’t before.
“Right now he can come out … to talk about his opinions, his politics,” said Jeff Ringel, a retired FBI squad supervisor in New York. “There’s no longer the requirement he has to forever hold those views to himself.”
The FBI is not intended to be a political entity. The federal law known as the Hatch Act restricts employees from expressing partisan beliefs. But Comey is no longer bound by the bureau’s rules against showing partisanship.
In a televised hearing, for example, Comey could testify under oath and reveal why he believes he was fired shortly after reportedly requesting more money from the Justice Department to expand the bureau’s Russia inquiry.
“As a private citizen, he can now jump up and down and say, ‘Trump’s an asshole,’ and that’s fine,” Ringel said.
Comey, 56, reportedly learned he was fired Tuesday while addressing a Los Angeles field office and noticed breaking news alerts on TVs in the room.
The official reason, given in a memorandum from Deputy Attorney General Rod Rosenstein, was Comey had “usurped” the authority of the Department of Justice in July by announcing findings critical of Democrat Hillary Clinton’s handling of sensitive emails back when she was secretary of state.
Skeptical Democratic lawmakers and some of their Republican colleagues questioned that rationale, noting that Trump had previously praised the Obama administration appointee, saying it took “a lot of guts” for him to make the Clinton announcement during the campaign. His sudden firing raised suspicions of an attempt to derail the FBI’s Russia investigation that was ramping up following Comey’s refusal last week to confirm in a Senate hearing that Trump was not a target.
Attending a House or Senate panel would give Comey the opportunity to air possible grievances, says Myron Fuller, a former FBI supervisor who ran the Salt Lake City division.
“I think if I was him, I’d want to tell my story,” he said. “And at least he would be able to give some idea of why he thinks he was fired, because the discussion is why was he fired now?”
Fuller expects Comey will appear at a future congressional hearing, though he says it’s unlikely he would disgrace the office by saying anything unprofessional, given his reputation as a straight-shooter and as someone who holds the FBI in the highest regard.
“I think that would be really the only thing he would want to talk about if questioned, is, ‘Why do you think you were fired?'”
But Comey’s farewell letter to agents and friends at the bureau suggests otherwise.
“I’m not going to spend time on the decision or the way it was executed. I hope you won’t either,” he wrote.
While Comey is free to publicly share his opinions, he has no such leeway when it comes to classified information about ongoing cases such as the Trump-Russia probe.
Jim Trusty, who worked as a lawyer for the Department of Justice in the organized crime and gangs division, said Comey is still required “to respect the traditional restrictions of free speech,” meaning classified material can’t be leaked into the public domain.
Law enforcement officials aren’t supposed to provide factual details of ongoing investigations, particularly when it’s disparaging information and the agency doesn’t end up prosecuting.
“The philosophy behind that is it’s particularly unfair to say negative things about a target, and then never afford them a court proceeding with which they can acquit themselves,” explained Trusty, now a partner with Washington-based firm Ifrah Law.
U.S. President Donald Trump is defending his decision to fire Comey after receiving criticism from both parties. (Carolyn Kaster/Associated Press)
David Gomez, a former FBI special agent in charge of the Seattle field office, says anyone who carries the highest security clearances in the U.S. would carry those into retirement for a certain period of time.
“Whenever you leave the FBI — whether you’re fired, retired or resigned — you sign a non-disclosure agreement as you do when you’re hired,” he said. The agreement would dictate an employee is barred from talking about anything related to specific cases without approval from headquarters.
That means any possible tell-all memoir detailing Comey’s tenure as director, for example, would need sign-off from the FBI to ensure revelations such as code words don’t jeopardize sensitive operations.
Violating non-disclosure agreements might carry criminal penalties, Gomez said, “though the violation would probably have to be pretty egregious.”
“That said, knowing Jim Comey and his reputation, I think you’re going to see the same Jim Comey testifying publicly before Congress as we’ve seen before.”