White House press secretary Sarah Huckabee Sanders set aside some time during the daily press briefing Wednesday to declare that former FBI director James B. Comey should face criminal punishment for allowing negative information about the president to be leaked to the New York Times, and that ESPN reporter Jemele Hill should be fired for her comments about Trump and race.
The Comey comment came in response to a question from a reporter, following up on Sanders’s comment Tuesday that Comey had broken the law in asking a friend to leak information from a memo that he’d prepared after a conversation with the president.
Sanders explained her rationale for claiming that the law had been broken: The memos Comey wrote about his interactions with the president were written on an FBI computer and “clearly followed the protocol of an official FBI document.” Leaking such a memo “violates federal laws, including the Privacy Act,” as well as employee agreements. (Those, of course, are likely moot, since Trump already fired Comey.) “I think that’s pretty clean and clear that that would be a violation,” she said.
Asked what she thought should happen, she said it was “not up to me to decide” but that “the Department of Justice has to look into any allegations of — whether something’s illegal or not.”
There’s no evidence that the information leaked was classified and, as Sanders noted, Comey has argued that they were his personal — not professional — notes. The Times’s Peter Baker points out that no memo was leaked, just the contents of one, detailing a request Trump made of Comey to drop the investigation into former national security adviser Michael Flynn.
It’s true that there are prohibitions about sharing government documents even when not classified, as outlined here. The broader question is whether Comey’s defense that the memos were personal would sway a potential prosecutor.
More broadly, though, it’s extremely unusual for the White House to hint that a political opponent — which Comey unquestionably is — should face a criminal inquiry. When Republican presidential candidate Donald Trump repeatedly suggested that he would have Democratic opponent Hillary Clinton prosecuted if he won the election, Fortune interviewed a slew of legal experts and former attorneys general to gauge the appropriateness of such a move.
The responses were nearly uniform: The attorney general would make the call on any prosecution (as Sanders stated) — and that it’s inappropriate for the president to push the attorney general to take such an action.
New York University professor Jim Jacobs put it like this, in speaking to Fortune:
That’s very contrary to the way the Justice Department operates. It is essential that the department be apolitical with respect to its choice of law enforcement targets and to its exercise of prosecutorial discretion. And very improper if the president were to be making phone calls to the attorney general with respect to a particular target of investigation. I don’t know of any president who has done that. If it had been revealed to have happened in the past it would have been a scandal.
There’s an irony to Sanders’s comments, of course: Trump denies that he attempted to tell Comey what to do with the Flynn investigation — and the White House is now hinting to the Department of Justice that it should begin a Comey investigation.
A short while later, Sanders offered her thoughts on ESPN’s Hill who, on Monday, tweeted among other things that “Donald Trump is a white supremacist who has largely surrounded himself w/ other white supremacists.”
Asked about the comment by The Post’s David Nakamura, Sanders replied, “I think that’s one of the more outrageous comments that anyone could make, and certainly something that I think is a fireable offense by ESPN.”
Beyond the White House suggesting that criticism of the president should result in a person losing his or her job, it’s worth remembering that Hill is a member of the media. Sanders is suggesting, then, that a journalist be fired by a media outlet for offering her opinion — a slightly more significant argument than if Hill had simply been an average citizen who said the same thing.
This, too, is highly unusual. When President Barack Obama in 2009 suggested that a police officer who’d arrested a black Harvard professor outside his home had “acted stupidly,” it kicked off weeks of criticism from his opponents, including a proposed congressional condemnation. Ultimately, Obama hosted both the officer and the professor at the White House to discuss the incident and broader issues of race.
Anathema to any conservative to call for the career of someone who offended with speech. Grotesquely irresponsible from the White House. https://t.co/x285wuYEXP
— Noah Rothman (@NoahCRothman) September 13, 2017
Bear in mind: Obama didn’t call for him to be fired, and the officer’s actions weren’t criticism of the president. Nor was the officer a member of a profession that’s specifically protected under the First Amendment.
Sanders’s suggestions — which she’ll no doubt soon emphasize were only that — were abnormal comments that echoed a common theme. Criticism of the president and drawing attention to unpopular political decisions he makes results in the White House telling reporters that they should face punishment.
To put it mildly: This isn’t usually how the presidency works.
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