Patterico's Pontifications

7/11/2017

Claim: James Comey Broke Agency Rules He Criticized Hillary Clinton Over

Filed under: General — Dana @ 3:49 pm



[guest post by Dana]

If so, how rich:

More than half of the memos former FBI chief James Comey wrote as personal recollections of his conversations with President Trump about the Russia investigation have been determined to contain classified information, according to interviews with officials familiar with the documents.

This revelation raises the possibility that Comey broke his own agency’s rules and ignored the same security protocol that he publicly criticized Hillary Clinton for in the waning days of the 2016 presidential election.

Comey testified last month he considered the memos to be personal documents and that he shared at least one of them with a Columbia University lawyer friend. He asked that lawyer to leak information from one memo to the news media in hopes of increasing pressure to get a special prosecutor named in the Russia case after Comey was fired as FBI director.

But when the seven memos Comey wrote regarding his nine conversations with Trump about Russia earlier this year were shown to Congress in recent days, the FBI claimed all were, in fact, deemed to be government documents.

While the Comey memos have been previously reported, this is the first time there has been a number connected to the amount of the memos the ex-FBI chief wrote.

Four of the memos had markings making clear they contained information classified at the “secret” or “confidential” level, according to officials directly familiar with the matter.

The report goes on to note that “classified information or any information from ongoing investigations or sensitive operations without prior written permission, and it mandates that all records created during official duties are considered to be government property.” All FBI agents sign an employee agreement containing the following:

“Unauthorized disclosure, misuse, or negligent handling of information contained in the files, electronic or paper, of the FBI or which I may acquire as an employee of the FBI could impair national security, place human life in jeopardy, result in the denial of due process, prevent the FBI from effectively discharging its responsibilities, or violate federal law.”

It adds that “all information acquired by me in connection with my official duties with the FBI and all official material to which I have access remain the property of the United States of America” and that an agent “will not reveal, by any means, any information or material from or related to FBI files or any other information acquired by virtue of my official employment to any unauthorized recipient without prior official written authorization by the FBI.”

What is unknown is whether Comey signed the form.

And that brings us to 18 U.S. Code § 793, which everyday Americans became familiar with last year, thanks to Hillary Clinton. Remember, that was when Hillary Clinton was in a bit of a bind and then-Director Comey swooped in to save the day:

According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18): With lawful access to highly classified information she acted with gross negligence in removing and causing it to be removed it from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust. Director Comey even conceded that former Secretary Clinton was “extremely careless” and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services.

Yet, Director Comey recommended against prosecution of the law violations he clearly found on the ground that there was no intent to harm the United States.

In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence.

At this point, wouldn’t a Special Prosecutor be needed? Further, was there “intent” with regard to Comey and this latest bit of news? And, is it possible that any of the memos were upgraded to “classified” after the fact?

Ed Morrisey makes a few interesting observations:

If Comey allowed those documents with classified information to get out of his hands, then 18 USC 793 might apply — the same Espionage Act statute under which Comey determined that Hillary Clinton could not be prosecuted.

If Solomon’s sources are accurate, which has not yet been established, then Comey was trusted with classified information and at the least improperly retained custody of it and improperly secured it. If the memo he gave to the Columbia University professor to leak to the press contained any classified information — something which Solomon’s story never explicitly alleges — then that would at least seem to be “gross negligence.” If Comey knew it contained classified information, then it would go beyond that standard into a mens rea for criminal activity in regard to a law that Comey only knows too well. Ignorance will not be a defense here.

However, let’s step back a bit and consider exactly what transpired. Comey did not take reports or other such classified documents and put them into memo form; he memorialized conversations with his boss. Those do not come with floating classification markings above and below someone’s head while the conversation takes place. The assumption is that anyone who has a clearance will understand what should be classified and take steps to protect it, but that’s more difficult in conversation than it is in documentation. In that sense, ignorance may well be a defense, since Comey may not have known about any classification levels attached to the information at the time of the conversations.

That doesn’t let Comey off the hook, though. If that was the case, Comey should have taken steps to determine whether the content he included in these memos was classified at any level before actually writing them, and then if still necessary, labeled and stored them appropriately. Failure to do so and then leaking them intentionally both raise potential violations of 18 USC 793, although perhaps cases that prosecutors wouldn’t normally press.

And of course the president weighed in on the matter. After re-tweeting a now retracted tweet from Fox and Friends about the report, President Trump tweeted:

Untitled

Just to be clear: Comey testified before the Senate intelligence committee that he shared the memo with his close friend, Columbia University Law School professor Daniel C. Richman. He then asked Richman to share contents with reporters. Comey did not directly leak them to reporters.

As of yesterday Daniel C. Richman denied that there were any classified markings on the memos given to him by Comey. If it was classified material that he wanted leaked, Comey seems plenty smart enough to make sure it was clean when he gave it to Richman. He’s not an amateur.

Finally, Andrew McCarthy shares his thoughts on the matter, which are worth your time to read. Amusingly, he notes that the report in The Hill is based on leaks, and yet the president hasn’t uttered a peep of complaint about that. Apparently not all leaks are created equal.

(Cross-posted at The Jury Talks Back.)

–Dana

20 Responses to “Claim: James Comey Broke Agency Rules He Criticized Hillary Clinton Over”

  1. Hello.

    Dana (023079)

  2. the shady corrupt fbi can’t be trusted to enforce the law equally

    happyfeet (28a91b)

  3. Did I hear the word ’emails’?

    Heh. They’re ‘transparent’

    Ben burn (b3d5ab)

  4. And of course the president weighed in on the matter.

    you said that wholly unironically didn’t you

    happyfeet (28a91b)

  5. “Apparently, not all leaks are created equal.”

    Not to worry. Comey will skate, Trump won’t. These outcomes have already been decided. I make this statement with neither approval or disapproval of either outcome.

    Lenny (5ea732)

  6. You need to read McCarthy to understand the classification process.

    It can be both true that the memos were not classified when Comey possessed them, and distributed at least one of them to his professor friend.

    But, after he departed the FBI, the memos were turned over to the Special Counsel, and they were submitted to the FBI for classification review.

    That review determined that some of the information in the memos was subject to restricted access under one of several standards. This did happen AFTER Comey provided the one memo to his friend.

    Comey’s problem will be that the FBI is a classifying organization — meaning it gathers and distributes where appropriate classified information. Comey, as the head of the FBI, is charged with knowing what information is classified and what is not. Whether he signed a form or not is meaningless.

    He may have well believed when he wrote the memos that he was not including classified information in them. But the reviewing office within the FBI has reached a different conclusion. As McCarthy points out, it is very likely the fact that the FBI has determined that all communications between the Pres. and Dir. of the FBI in his official capacity are subject to at least confidential status.

    And that would make the memos automatically official government records, and Comey lacked the authority to distribute them outside the FBI to someone without the proper clearance AND a need to know their contents.

    shipwreckedcrew (56b591)

  7. SWC,

    Does it seem careless or naive that as a former director of the FBI would not know, suspect, or determine to err on the side of caution that the FBI review might very possibly, if not likely, result in something different (restricted access) than when he sent them? Would the risk not have crossed his mind?

    Dana (023079)

  8. Comey testified the memo about the Feb 14 converation was deliberate;y written in a way so that it could be more eaasily disseminated. That would mean he left out most of the details about leaks in that cpnversation – which was probably the main topic, and not the fate of Mike Flynn.

    Sammy Finkelman (54fb9c)

  9. Much as I respect Cap’n Ed, I don’t agree at all that James Comey could ever plausibly argue “ignorance of the law” as a defense, although that would explain some of the things he said in his press conference offering up the “no charges” exoneration of Hillary last July. He damn well knows — everyone with a security clearance has been told and has no excuse for not knowing — that whether something’s classified does not depend on it being stamped classified. Just as with, for example, communications that are secret under attorney-client privilege, it’s the nature of the communication — who it’s among, and what’s being discussed and in connection with what — which determines its status, and tons of things that are never stamped “classified” are nevertheless, legally, “classified from birth.” That’s true whether one’s considering the conversation or the written memorandum of the conversation.

    All of this has been obvious since Comey’s cutout from Columbia leaked to the press; we know it can’t have been proper, but exactly how many procedures, rules, and perhaps laws Comey has broken remains to be seen.

    Beldar (fa637a)

  10. Is any part of this story based on non-anonymous sources?

    If so, surely our commenters are showing appropriate skepticism.

    Patterico (0e0c78)

  11. That is a general comment. I just noticed it immediately follows Beldar’s comment but it was not directed at him.

    Patterico (0e0c78)

  12. I just *know* our Trump-supporting commentariat would never give credence to any story based on the word of “officials directly familiar with the matter.”

    Patterico (0e0c78)

  13. he’s such a good president it’s kinda hard to doubt him just cause of crap in the news

    happyfeet (28a91b)

  14. Based on the sequence of events, I think the most likely source for the leak that the memos have been deemed to have classified information is likely Congressional investigators. We know that the originals were given to Mueller, but my recollection is that the Cong. committees asked for them too. That’s probably why they went through the security classification process, so they could be turned over to people with the appropriate security clearances.

    They would not have gone to the WH, so the leak isn’t coming from there. The only other location where the classification out come would be known would be from within the FBI itself.

    shipwreckedcrew (56b591)

  15. Beldar @9 What Comey claimed at his press conference last July was not that Hillary did not violate the law, but rather that no prosecutor would prosecute such a case without at least one of several conditions, which he claimed had not occurred..

    But in his testimony on June 8 this year that there was “no case” which was a lie and/or contradicted what he said at that press conference.

    CORNYN: And, under Department of Justice and FBI norms, wouldn’t it have been appropriate for the attorney general, or, if she had recused herself – which she did not do – for the deputy attorney general to appoint a special counsel?

    That’s essentially what’s happened now with Director Mueller. Would that have been an appropriate step in the Clinton e-mail investigation, in your opinion?

    COMEY: Yes, certainly a possible step. Yes, sir.

    CORNYN: And were you aware that Ms. Lynch had been requested numerous times to appoint a special counsel, and had refused?

    COMEY: Yes, from – I think Congress had – members of Congress had repeatedly asked. Yes, sir.

    CORNYN: Yours truly…

    COMEY: OK.

    CORNYN: … did on multiple occasions. And that heightened your concerns about the appearance of a conflict of interest with the Department of Justice, which caused you to make what you have described as an incredibly painful decision to basically take the matter up yourself, and – led to that July press conference.

    COMEY: Yes, sir. I can – after the – President Clinton – former President Clinton met on the plane with the attorney general, I considered whether I should call for the appointment of a special counsel, and had decided that that would be an unfair thing to do, because I knew there was no case there.

    We had investigated very, very thoroughly. I know this is a subject of passionate disagreement, but I knew there was no case there. And calling for the appointment of special counsel would be brutally unfair because it would send the message, aha (ph), there’s something here.

    That was my judgment. Again, lots of people have different views of it. But that’s how I thought about it.

    CORNYN: Well, if the special counsel had been appointed, they could’ve made that determination that there was nothing there and declined to pursue it, right?

    COMEY: Sure, but it would’ve been many months later, or a year later.

    Now Comey could say no impartial prosecutor would bring suchh a case, but he can’t say there was no case, becausse he concedd as much a year ago.

    And in my personal opinon, I don’t think he made the decision on his own. He was ppracticaly told to make the decision and probably did it, and worked out the details in consultation with Hillary’s lawyers.

    Sammy Finkelman (54fb9c)

  16. So, by removing the markings, or not seeking clarification (in his position), Comey is exclusively responsible for the content, and distribution.

    n.n (50d116)

  17. Is nobody going to say it? Nobody meddled with the election more than Comey. And he’s still messing with it.

    nk (dbc370)

  18. Ignorance of the Law is a defense? News to me..

    Ben burn (b3d5ab)

  19. Ignorance of the Law is a defense?

    the corrupt Comey FBI 8 ball sez ask again later

    happyfeet (28a91b)

  20. nk #17:

    I guess you, me and Hillary can sit on the same couch passing the popcorn and the beer if both Comey and Trump are felled in “messing with the election” scandals.

    Appalled (96665e)


Powered by WordPress.

Page loaded in: 0.0895 secs.