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The Justice Department’s chief watchdog is preparing a damning report on James Comey’s conduct in his final days as FBI director that likely will conclude he leaked classified information and showed a lack of candor after his own agency began looking into his feud with President Trump over the Russia probe.
Inspector General (IG) Michael Horowitz’s team referred Comey for possible prosecution under the classified information protection laws, but Department of Justice (DOJ) prosecutors working for Attorney General William Barr reportedly have decided to decline prosecution — a decision that’s likely to upset Comey's conservative critics.
Prosecutors found the IG’s findings compelling but decided not to bring charges because they did not believe they had enough evidence of Comey’s intent to violate the law, according to multiple sources.
The concerns stem from the fact that one memo that Comey leaked to a friend specifically to be published by the media — as he admitted in congressional testimony — contained information classified at the lowest level of “confidential,” and that classification was made by the FBI after Comey had transmitted the information, the sources said.
Although a technical violation, the DOJ did not want to “make its first case against the Russia investigators with such thin margins and look petty and vindictive,” a source told me, explaining the DOJ’s rationale.
But Comey and others inside the FBI and the DOJ during his tenure still face legal jeopardy in ongoing probes by the IG and Barr-appointed special prosecutor John Durham. Those investigations are focused on the origins of the Russia investigation that included a Foreign Intelligence Surveillance Act (FISA) warrant targeting the Trump campaign at the end of the 2016 election, the source said.
“There are significant issues emerging with how the FISA was handled and other conduct in the investigation, and everyone involved remains under scrutiny,” a second source said.
Patrick Fitzgerald and Daniel Richman, two of Comey’s lawyers, and Keith Urbahn, his spokesman, did not return repeated calls and emails seeking comment.
The lack of prosecution is certain to demoralize some conservatives, who long have called for Comey’s head. But the IG report, set to be released within the next few weeks, likely will provide significant condemnations of Comey’s conduct, sources tell me.