Former FBI agent Terry Albury is likely to receive between three and five years in prison when he’s sentenced for giving classified information to reporters, raising questions of a double standard benefiting the men who led the bureau at the time of his leaks.
Albury’s illegal activities, which his attorneys call “an act of conscience,” began in February 2016, when the bureau was led by Director James Comey, and continued until August 2017, when FBI Deputy Director Andrew McCabe’s three-month stint as acting director ended.
Albury, allegedly motivated by discrimination as the only African-American agent in Minneapolis, is believed to have sent The Intercept a guide to informant recruitment and rules for seizing records from journalists. Albury pleaded guilty Tuesday to two felony counts, and prosecutors want 4-5 years in prison. Albury’s attorneys say 3-4 years would be appropriate.
Comey and McCabe, meanwhile, face no criminal charges, though Republicans in Congress are clamoring for action in response to their interactions with the media.
Comey admittedly leaked memos about his conversations with President Trump. Some of the memos reportedly contained classified information. McCabe, meanwhile, authorized a self-serving 2016 leak to reporters about an investigation of the Clinton Foundation, before allegedly lying about it to Comey, FBI agents, and Justice Department inspector general employees.
“Higher-level officials routinely leak sensitive — sometimes even classified — information to advance their own personal interests and rarely face serious consequences. But if a whistleblower leaks sensitive information of public interest, the hammer comes down,” said Jess Radack, a prominent whistleblower defense attorney.
“The government will no doubt argue that leak cases are evaluated individually, but if equal treatment and proportionality in punishment are key precepts of our criminal justice system, ours is an abysmal failure. The outcomes have everything to do with politics and nothing to do with justice,” Radack said.
Jonathan Turley, a law professor at George Washington University, said, “Washington continues to operate on a type of ‘Animal Farm’ culture where everyone is equal but some are more equal than others. There remains a sharp disconnect in how high-ranking officials are treated as opposed to others in our system.”
“The Albury case shows the disturbing disconnect in the treatment of those accused of leaking. There was no long period of internal debate, or a $500,000 defense fund like McCabe’s, for Albury,” Turley said, referring to an online fundraiser for McCabe.
“Comey was tasked with finding leaks and then became a leaker himself. The memos released clearly show that these were FBI documents — as the FBI itself has indicated. Not only did Comey improperly remove the the memos but then gave four to a person to leak the information to the media. It now appears that four were viewed as classified — deepening the concerns in how others have been treated for classified leaks,” he said.
Comey said he gave four of seven memos he wrote about talks with Trump to Columbia University law professor Daniel Richman to leak to reporters, to force the appointment of a special counsel to investigate potential Trump campaign collusion with Russia.
The Wall Street Journal reported Friday the Justice Department inspector general’s office is reviewing two memos given to Richman that had classified information, though one apparently was revised by Comey to remove the classified content. The other memo’s content reportedly was upgraded to “confidential,” the lowest level of classification, after it was shared.
Turley said it’s possible McCabe’s case will be different than most unprosecuted allegations against senior officials, given an inspector general criminal referral, but that “often these referrals die in the U.S. Attorney for the District of Columbia after being scuttled by prosecutors [and] are often not even submitted to grand juries.”
McCabe, as deputy director of the FBI, was allowed to authorize public confirmation of a probe into the Clinton Foundation, which he did in an effort to dispute allegations he was biased, according to an inspector general report. But McCabe allegedly told Comey and investigators lies about his role in doing so, which could constitute a crime. McCabe’s alleged misconduct resulted in his firing by Attorney General Jeff Sessions hours before his retirement last month, upon the recommendation of the FBI’s Office of Professional Responsibility,
Turley said a closer parallel to McCabe may be found in former national security adviser Michael Flynn, who pleaded guilty last year to making false statements about his contact with Russia’s ambassador before Trump took office. Flynn is awaiting sentencing.
“Flynn was indicted for criminal false statements on less,” Turley said. “He now faces a prison stint after pleading guilty to a single false statement about a meeting with Russian diplomats during the Trump presidential transition period. While Flynn did not deny the meeting, which was entirely legal, he denied discussing sanctions with the Russians. Mueller charged him with lying or misleading federal investigators under 18 U.S.C. 1001. He did so even though investigators working under former FBI Director James Comey reportedly had concluded that Flynn did not intend to lie and should not be charged criminally for the omission. Flynn has put the normal disconnect in the DOJ’s treatment of its own into sharp relief. It is hard to dismiss the fact that McCabe helped investigate Flynn and then committed the same alleged act.”
Mark Zaid, a defense attorney on many high-profile national defense cases, said it’s possible the treatment of Comey and McCabe would constitute a double standard, but that he’s not yet willing to allege that’s the case, as some facts remain unknown about Comey’s memos. McCabe’s alleged “lack of candor” may not be prosecuted in ordinary circumstances, he said..
“That said, historically speaking, senior officials, regardless of administration, have been treated more leniently than the rank and file,” Zaid said. “It is a sad state of affairs because accountability of government officials, and the example of leadership, should start at the top rather than the bottom.”
Zaid said one popular theory for why high-level officials aren’t prosecuted while lower-level officials are is “those in power are friends with everyone around them and influence can be had” and “someone in power being stripped of their position, especially publicly, is sometimes viewed as a major fall from grace and sufficient as a deterrent rather than having to be prosecuted.”
Richman, who represents Comey as a legal client, did not respond to a request for comment. McCabe spokeswoman Melissa Schwartz said he “neither lied nor leaked,” leaning on an interpretation that there was a series of misunderstandings, rather than intentional untruths — a contention dismissed by the Justice Department’s inspector general.
A sentencing date for Albury has not yet been scheduled. He is the second alleged leaker to face harsh Espionage Act charges under Trump. The first, former National Security Agency contractor Reality Winner, was arrested in June for allegedly providing a document to The Intercept on Russian attempts to hack election systems. Winner is being held without bail.
Joshua Dratel and JaneAnne Murray, attorneys for Albury, declined to comment.
