[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:
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.)