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Saturday, June 10, 2017


I take the text for today’s meditation from the Preface of Kierkegaard’s Philosophical Fragments:

“When Philip threatened to lay siege to the city of Corinth and all its inhabitants hastily bestirred themselves in defense, some polishing weapons, some gathering stones, some repairing the walls, Diogenes seeing all this hurriedly folded his mantle about him and began to roll his tub zealously back and forth through the streets. When he was asked why he did this he replied that he wished to be busy like all the rest, and rolled his tub lest he should be the only idler among so many industrious citizens.”

The entire nation has been mesmerized by the spectacle of James Comey’s testimony, and the screen of my TV set, which has been on virtually non-stop, has been filled with learned speculation on the deeper significance of his revelations.  I have absolutely nothing of value to add to that commentary, but like Diogenes, I do not wish to be seen as the only idler among so many industrious citizens, so herewith a thought experiment about the question whether Comey has broken the law or violated accepted norms by passing along his contemporaneous memoranda on his meetings with Trump to a friend, with instructions to give them to a NY TIMES reporter.  My thought experiment is prompted by a statement by Susan Collins, described in a brilliant satirical piece as “the human fulcrum perched stoically at the precise center of American politics.”  Senator Collins offered the opinion that Comey had violated recognized restrictions in passing along his memorandum because it was a “work product” created on an FBI laptop while Comey was an FBI employee.  [“Work product” is a term of art from the legal world.]  Comey, meanwhile, has been described by friends and enemies alike as a “leaker.”

Let me ask a series of elementary questions, each of which can be answered by “yes” or “no.”  The answer to the first question is transparently “yes.”  Senator Collins says that the answer to the last question is “no.”  The trick is to figure out where in the series the answer flips from “yes” to “no.”

Did Comey, as a private citizen, having been fired from his job, have the right to think about his meetings with Trump during the time that he was FBI Director?  I take it we will all agree that the answer is “yes.”

Did he have the right, at night in bed with his wife, to talk to her about those meetings, describing to her his memory of what had happened during them?  This, I think, is actually the most important question in the entire series.  Presumably the answer is “no” if those recollections include classified matters, but ”yes” if not.  People privy to classified information are not supposed to share it even with spouses.  [Recall that hilarious old Arnold Schwarzenegger/Jaimie Lee Curtis movie True Lies.]  But Comey says, and no one is disputing, that he deliberately kept any classified matters out of his memos, and we will assume that he does the same in his pillow talk.

Did Comey have the right, before talking to his wife, to consult his contemporaneous memos in order to refresh his memory of the events?  Obviously yes.

Did he have the right to make notes from those memos?  Yes.

Did he have the right to draft full-length quasi-memos in preparation for his nightly pillow talk?  We may assume that his wife is a demanding bed partner, if not in matters sexual then at least in matters conversational.  Surely the answer is still “yes.”

In preparing his pillow talk aide-memoire, did Comey have the right to make it a word-for-word copy of the original memoranda?  Surely yes.  On what possible grounds could one say “no?”

At an intimate dinner the next evening with friends, did Comey have the right to share with them his pillow talk?  The answer must be “yes.”  When it comes to such matters, the spouse does not have, in the law, privileged access [as we say in philosophy] to the thoughts of the husband or wife.  If Comey can share his thoughts with his wife, he can share them with a friend.

Can Comey give to his dinner guest a copy of the private notes he prepared prior to the previous evening’s pillow talk?  Why not?  Can he ask that friend to pass it on to a reporter?  Again, why not?  The fact that the document began life as a personal aide to Comey before getting into bed the night before seems to be irrelevant. 

Can Comey, who, we may suppose, is an indifferent typist, make a Xerox copy of the original memorandum rather than typing out a new copy before giving it to his friend?  It is difficult to see why not.

Suppose Comey, by mistake, gives his friend the original memorandum rather than the Xerox copy.  At this precise moment, but not before, Comey, according to Susan Collins, has violated a law or norm because the original memo was written on an FBI laptop while Comey was an employee of the FBI.  Really?  So what Comey did would be all right with Collins if it was a copy rather than the original that he passed to his friend.  I would be willing to bet that it was a copy.  But does Senator Collins, or anyone else, seriously wish to hang on that detail the charge that Comey has violated some law or norm?


Unknown said...

I share your puzzlement.

s. wallerstein said...

Even if Comey violated some minor law or norm, his contribution to the greater good outweighs the "evil" of breaking that law or norm in the same way that double parking to get a patient who is having a massive heart attack into the hospital emergency room more rapidly outweighs the "evil" of double parking.

Robert Paul Wolff said...

That is called the Necessity Defense. The only time I tried to use it [I was arrested in an anti-apartheid demonstration] the judge shot me down. I was found guilty but did not have to pay the $72.50 fine. Whew!

howie berman said...

Professor Wolff:

Didn't Kant famously say we ought to obey the law no matter what? Could you explain your disagreement with Kant on this matter?

Jerry Fresia said...

Very nice. Is this legal analysis coming from the virtual firm, Wolfe and Wolfe? If not, I can see where your son might be getting his legal chops.

Speaking of legal minds and the Comey testimony, have you ever had any contact with Dershowitz? He is, once again, cranking out legal theories to protect the opulent few from the majority, to paraphrase Madison.

Robert Paul Wolff said...

I Have never met Dershowitz. he seems to me to be really poisonous. I leave him to Lawrence tribe, who has been doing a nice job of taking him apart on TV. No, that was my fantasy. My son has more serious things to do!

Danny said...

'Senator Collins offered the opinion that Comey had violated recognized restrictions in passing along his memorandum because it was a “work product” created on an FBI laptop while Comey was an FBI employee.'

I note the term 'recognized restrictions', though we I am not sure what this means. Are these ethical lines? I wouldn't actually be sure what that means either. Cross-reference this:

'herewith a thought experiment about the question whether Comey has broken the law or violated accepted norms ..'

Okay, what are 'accepted norms'? I guess the point is not whether *I* accept them? I think I can handle the reference to 'the law', but I cannot handle all of these loose synonyms for 'the law', or, like, 'the spirit but not the letter of the law', or maybe 'what you should do', and first of all, you should not break the law. I'm not actually even sure we all agree that you should not break the law. Would it be, like, *immoral* to break the law, is that it? I don't expect agreement on that, and I don't even expect that I can guess how many different answers can be found for that.

By the way, I look at this again:
' I do not wish to be seen as the only idler among so many industrious citizens, so herewith a thought experiment'

Oh, perhaps that's a deliberate funny! ;)

Danny said...

Personally, I have no problem saying that the polar opposite of Trump, would be those who are experts in the law and bureaucracy; those who know the rules, understand why the rules exist, and enforce them. I more or less regard Trump as an anti-professional to whom laws were meant to be broken. There are, one might say, bureaucratic professionals like James Comey. I remember, as well, Deputy Attorney General Sally Yates (whom Trump also fired, after she refused to defend his executive order banning people from seven Muslim-majority countries). There is Preet Bharara, who was the United States attorney for the Southern District of New York until Trump fired him earlier this year..