RUTHFULLY YOURS

In his memoir, James Comey cites a “development still unknown to the American public to this day.” This mysterious development, he says, was central to his decision to intervene publicly in the Hillary Clinton email case.

Now this is strange because the big mystery was apparently disclosed in a flurry of reporting by the New York Times, Washington Post and CNN a year ago. His insistence in his book that the secret is likely to remain classified for decades also seems a bit hilarious when so much of the story was spontaneously declassified by anonymous leakers last spring, likely including Mr. Comey or people working for him.

Let’s recall what spawned that year-ago leakfest. It’s a question Mr. Comey leaves untouched in his book. Many in the FBI thought the intelligence was fake, possibly a Russian plant. The final reporting word was CNN’s, which cited sources saying Mr. Comey knew the evidence was probably fake but still considered it a threat to discredit the Justice Department’s handling of the Clinton email case.

A few weeks later, though, Sen. Lindsey Graham told CBS that Mr. Comey (presumably in closed hearings) had twice confirmed that the secret intelligence inspired his actions in the email case but “as early as a month ago, he never mentioned it was fake.”

Let us guess that this matter will remain classified for “decades” because it is embarrassing to Mr. Comey and the FBI. It’s also embarrassing, perhaps fatally so, to the intelligence agency that presented the intercept to Mr. Comey. The implication ought to set your hair on fire. Mr. Comey’s first intervention led to his second intervention, reopening the Hillary investigation 11 days before the election, which he now concedes he might have resisted if he had not been sure Mrs. Clinton was going to win anyway.

Many analysts, including Mrs. Clinton, believe Mr. Comey’s actions—possibly driven by fake Russian intelligence—changed the outcome of the election.

In brief, an intercepted Russian document cited a Democratic Party email that, in turn, referred to a private conversation in which Attorney General Loretta Lynch assured a Clinton aide that Ms. Lynch would sit on the email investigation.

In his book, Mr. Comey says of this unnameable intelligence that political opponents of Mrs. Clinton could use it to cast “serious doubt” on the credibility of the Justice Department investigation.

Let’s roll back the tape because Mr. Comey’s original intervention makes even less sense now. If the email was fake, how does it compromise Ms. Lynch? And whether or not it was fake, how did Mr. Comey improve matters? In fact, by intervening, didn’t he just confirm that Justice couldn’t be trusted? Finally, if the intel wasn’t fake, where are the subpoenas and obstruction-of-justice indictments that naturally follow? CONTINUE AT SITE

President Trump said he wanted Supreme Court Justices in the mold of Antonin Scalia, and on Tuesday he got his wish. Though Justice Neil Gorsuch joined the four liberals on an immigration case, his logic would have made the late Justice proud.

In Sessions v. Dimaya, the government sought to deport a legal resident twice convicted of first-degree burglary. The Immigration and Nationality Act lets the government deport any immigrant convicted of a “crime of violence.” The question is whether first-degree burglary is a violent crime.

Section 16b of the criminal code includes a residual clause that defines a violent crime as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Writing for the majority, Justice Elena Kagan invoked the Court’s Johnson precedent and held that the residual clause was void for vagueness. In Johnson (2015), Justice Scalia’s majority opinion rejected a similar residual clause in the Armed Career Criminal Act and ruled that its vague language produced “more unpredictability and arbitrariness” than the Constitution allows.

Chief Justice John Roberts’s minority opinion tries to distinguish the residual clauses in the two cases to save Section 16b, which he notes “is incorporated into many procedural and substantive provisions of criminal law.” But he appears as concerned with the policy results of the Court’s decision as the legal merits.

The big news is Justice Gorsuch’s elegant concurring opinion that joins the majority result but for different reasons. “Vague laws invite arbitrary power,” he writes, “leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.” (See Comey, James nearby.)

Justice Gorsuch writes that Congress is free to define 16b with more specific crimes. But until it does the vague statute violates the due process right of individuals by giving license to police and prosecutors to interpret laws as they wish. This defense of individuals against arbitrary state power was a Scalia staple. Justice Gorsuch adds that vague laws also threaten the Constitution’s ordered liberty because they “risk allowing judges to assume legislative power.”

Mr. Trump’s Supreme Court nominee is sending a useful message that Congress should write clearer laws that aren’t subject to arbitrary interpretation. Congress can rewrite immigration law, and the President should be pleased with his nominee for doing what he promised.

Who’d have dreamed that with all the horrors committed by Bashar Assad, Vladimir Putin and Kim Jong Un, the small change of American political discourse would be whether the attorney-client privilege is being used to conceal the source of hush payments to “actresses”? But here we are.

In the 16th century, when our English forbears began resolving disputes through trial by jury rather than ordeal or battle, disputants had to rely on lawyers to present evidence and arguments. Thus the need for a rule that would encourage clients to disclose information to their lawyers.

That rule was the attorney-client privilege. It compromised the public’s otherwise unrelenting claim to every man’s evidence so as to encourage full and frank communication between lawyers and clients. The trade-off was that legal disputes were a search for the truth, and we would wind up with more truth if we didn’t search the parties’ lawyers to get it. Otherwise no client would disclose any unhelpful truth to a lawyer, and the process would collapse.

The privilege has a limit, the crime-fraud exception. The privilege is not recognized if the client is using the lawyer to commit a crime. For the most part this exception is read narrowly, to cover only the motive of the client. If the lawyer is acting on his own—for the client’s benefit but without the client’s authorization—evidence of the lawyer’s conduct would not be privileged, although evidence of the client’s statements would remain so.

That’s tidy in the abstract, and if a lawyer is served with a subpoena for information. But things get messy when, as occurred here, the party seeking the information is the government, and the means of getting it is a search warrant.

As to any particular client, the lawyer’s records will include myriad information, some of it client disclosures, some concerning conduct undertaken with the approval of the client—all of that privileged. There may also be records of the lawyer’s conduct and statements in pursuance of a criminal scheme, on his own or with the client—none of it privileged.

The government agents executing the warrant must isolate records that are relevant and unprivileged. They have no obvious way to do that other than to look at all records they seize, which means necessarily that they will look at records that should not be subject to a government search.

Agents typically do that by sending in a “filter team,” whose members have no contact with those involved in the investigation. That ensures that information that should not be examined—whether privileged or not—does not seep into, or “taint,” the investigation.

That’s the theory. Its success depends on the skill and honor of the filter team, and even in the best case it doesn’t prevent some government personnel from examining private records that are none of the government’s business.

The process risks damaging the significant public interest that led to the creation of the privilege in the first place. Is it worth the reward? One would think that would depend at least in part on the seriousness of the crimes under investigation.

In this case, the government has redacted any reference to particular crimes, although we learned earlier that perhaps Donald Trump’s lawyer, Michael Cohen, spent $130,000 on the eve of the 2016 election to buy the silence of Stephanie Clifford, a k a Stormy Daniels, about a sexual encounter she claimed she had with Mr. Trump several years ago. The payment itself would violate no law, but if its sole motive was to improve Mr. Trump’s chances in the election, it could constitute an in-kind campaign contribution that was not disclosed, in violation of campaign laws. The amount, more than $25,000, would put the violation in the felony category.

Have such violations been vigorously prosecuted in the past? In 2012 President Obama received campaign donations exceeding $2 million from sources that were not disclosed; he received another $1.3 million that exceeded contribution limits. The matter was settled after the election by the Obama Justice Department for a fine of $375,000 and no felony prosecution.

Another possible crime said to justify the search warrant is bank fraud. Here, one theory is that Mr. Cohen might have defrauded his bank by falsifying the purpose of the home-equity loan that was reportedly the source of the $130,000. But if Mr. Cohen’s equity is sufficient to provide collateral for the loan, why would its purpose matter to the bank? And if it doesn’t matter, there’s no fraud.

We can’t be certain that this is all that is under investigation. But if it is, the potential gains from an intrusive and unusual search warrant look meager compared with the interest put at risk. How confident are we in the self-control of those who set these events in train—who after all were supposed to be at work protecting the integrity of our elections?

Oddly, an episode involving a poison no doubt familiar to all three madmen mentioned in the first paragraph gives pause.

After anthrax spores killed five people, infected 17 others, and showed up in envelopes mailed to U.S. senators and media organizations in 2001, the current special counsel, then director of the Federal Bureau of Investigation, spent years chasing and destroying the reputation of a microbiologist named Steven Hatfill, zealous in the belief that Mr. Hatfill was the guilty party. Another zealot, James Comey, then deputy attorney general, said he was “absolutely certain” no mistake had been made.

After Mr. Hatfill was exonerated—he received more than $5.5 million in damages from the government—Mr. Mueller then decided that another microbiologist, Bruce Ivins, was the culprit. When Ivins committed suicide, Mr. Mueller pronounced the case closed. A subsequent investigation by the National Academy of Sciences suggests Ivins too was innocent.

Mr. Mueller is not a bad man, nor is Mr. Comey. It’s just that both show particular confidence when making mistakes, which makes one grateful for safeguards like the attorney-client privilege.

Mr. Mukasey served as U.S. attorney general (2007-09) and a U.S. district judge (1988-2006).