On Monday, Representative Trey Gowdy targeted FBI Director James Comey over the leaks coming from the intelligence community regarding former National Security Advisor Michael Flynn, saying bluntly, “The felonious dissemination of classified material most definitely is a crime.”
Gowdy began by asking Comey if there is an exception in the law for current or former U.S. officials who request anonymity. Comey said there was, but when Gowdy amended the question to ask if reporters were granted such an exemption, Comey said, “That's a harder question, as to whether a reporter incurs criminal liability by publishing classified information, and one probably beyond my ken.”
Gowdy pressed the issue, asking, “You're not aware of an exception in the current dissemination of classified information statute that carves out an exception for reporters?” Comey answered that he was not aware of such an exception, then added, “I don't think a reporter's been prosecuted, certainly in my lifetime, no.”
Gowdy responded, “Well, there have been a lot of statutes at bar in this investigation for which no one's ever been prosecuted or convicted, and that does not keep people from discussing those statutes, namely, the Logan Act. In theory, how would reporters know a U.S. citizen made a telephone call to an agent of a foreign power?”
Comey answered, “If it was declassified and then discussed in a judicial proceeding or a congressional hearing, something like that.”
Gowdy then pointed out that if none of those facts were at play, the knowledge would only be disseminated illegitimately. He then segued to which groups were entitled to “unmask,” meaning the removal of the names of U.S. persons to protect their privacy and their identity. He asked how many people within the FBI were given that privilege.
Comey said he didn’t know the exact number. He argued that the number of people in the FBO and NSA was less important than the culture behind the leaks.
Gowdy was relentless as he persisted, “The smaller the number is, the easier your investigation is. So, the number is relevant. I concede the culture is relevant. NSA, FBI, what other U.S. government agencies have the authority to unmask a U.S. citizen's name?” Comey answered that the NSA, the CIA does, the FBI, and the Department of Justice had the authority.
Gowdy asked how Comey would commence an investigation.
You would start figuring out, so who are the suspects? Who touched the information that you've concluded ended up unlawfully in the newspaper, and start with that universe, and then use investigative tools and techniques to see if you can eliminate people or include people as more serious suspects.
Gowdy asked whether former CIA director James Clapper, CIA director John Brennan, former National Security Advisor Susan Rice, former Attorney General Loretta Lynch and former acting A.G. Sally Yates would have had access to an unmasked U. S. citizen's name. Comey said they would.
Gowdy continued, “The name of a U. S. citizen that was supposed to statutorily be protected is no longer protected … we're a month and a half or two months into something that you and I agree is incredibly important and also happens to be a felony. So, I'm just simply asking you to assure the American people. You've already assured them you take it really seriously. Can you assure them that it is going to be investigated?”
Comey replied, “I can't, but I hope people watching know how seriously we take leaks of classified information, but I don't want to confirm it by saying we're investigating it, and I'm sorry I have to draw that line. I just think that's the right way to be.” He added, “Two things folks at home should know. First, an unauthorized disclosure of FISA is an extraordinarily unusual event, so be assured were going to take it very seriously, because our trust -- the American people and the federal judges that oversee our work is vital. And second, that this conversation has nothing to do with 702. Folks often mix them together. 702 is about targeting non-U.S. persons overseas. “
Gowdy didn’t buy Comey’s attempt to parse the issue. He said:
Director Comey, you are 100 percent correct, and I am 100 percent correct in saying that that is a distinction that doesn't make a difference to most of the people watching television. You are exactly correct. What we are reauthorizing this fall has nothing to do with what we are discussing, other than it is another government program where the people consent to allow government to pursue certain things with the explicit promise it will be protected. So, you're right, they're different. But in the eyes of people watching, it is the U. S. government officials leaking the name of a U. S. citizen, and if it can happen here, it may happen there.