18 USC section 4 addresses Misprision of a felony. In its basic form it establishes a separate felony for someone who does not report a crime they witness. It is rarely prosecuted due to some SCotUS rulings.
The code states.
Quote:
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Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
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What this law attempts to establish is a mandatory duty of a citizen to report a felony. The SCotUS ruled in
Marbury v. Brooks, 20 U.S. [7 Wheat.] 556, 5 L. Ed. 522. that while it is desirable for every citizen to have a duty to report felonies, to have a law that punishes a citizen for not reporting a crime is unreasonable.
Because of this case and other cases, almost all of the states have abandoned their misprision laws and those few states that still have them rarely prosecute for them. The reason is that the SCotUS ruled that in order for the federal government to successfully prosecute someone for Misprision of a Felony, the government must prove all of the following elements of the crime.
(1) another person actually committed a felony;
(2) the defendant knew that the felony was committed;
(3) the defendant did not notify any law enforcement or judicial officer;
(4) the defendant took affirmative steps to conceal the felony.
It is the last element that is the tricky part. It is not enough that a person knows of a felony but that they take affirmative steps to conceal the felony. Affirmative steps do not include passively not reporting it.
So can Comey's actions quality for Misprision? Lets re-examine the elements of the crime.
1. another person actually committed a felony
a. We don't know if Trump actually committed a felony. Lacking that Comey can't have committed Misprison. Misprison is usually a later charge after the felon is brought to trial. It is tough to start with Misprison.
b. If we think that Comey did commit Misprision then we also must think that Trump is guilty of committing the felony. You can't have Comey guilty without having Trump guilty.
2. the defendant knew that the felony was committed
a. The felony of obstructing justice may not have been committed when Trump asked (in an official manner) Comey to stop the investigation. Just the asking, even in an official manner may have been a weak case to make.
b. But after Comey was fired in a manner that Comey may reasonably expect to be because of his non acceptance of the asking; that may have been when the felony was egregiously committed. Asking someone to stop an investigation is wrong, firing them because they refuse is really wrong.
3. the defendant did not notify any law enforcement or judicial officer;
a. The crime of Misprison is not commonly levied on law enforcement personnel. There is no expectation that a police officer, knowing that a crime may have been committed has a duty to immediately let another police officer know. The fact that a law enforcement officer knows him or herself that a felony has been committed is enough.
b. Comey, being the Director of the FBI, himself would qualify as notifying a law enforcement officer. He is one of the top federal law enforcement officers in the country. In addition Comey did notify other FBI officers of his concerns.
4. the defendant took affirmative steps to conceal the felony.
a. There does not seem to be any evidence that Comey tried to conceal this felony action. If Comey had destroyed his notes or told the other FBI officers to forget what he said, that would be an affirmative action of concealment.
b. With the crime of Misprison of a Felony, the time between knowledge and reporting is not defined. One would have to prove the position that Comey waited an unreasonably long time and it would be up to the courts to decide whether it was reasonable or unreasonable.
Based on this, 18 USC section 4 Misprison of a Felony would be a very hard charge to prove against Comey.