Uh oh: DOJ probing Comey for including classified info in memos

Trump’s spent the last year calling him a leaker but “leaker” is a term of art. It refers to someone who’s shared information they’re not entitled by law to share, i.e. classified information. Comey’s defense in handing off some of the memos he wrote about his meetings with Trump to a friend is that it’s not really a “leak” because the information in it isn’t classified. He was free to share it.

But was he?

This helps answer the question du jour, namely, why were House Republicans so eager to get a copy of Comey’s memos? One theory is that they weren’t. They demanded the memos assuming that Rod Rosenstein would refuse to turn them over and that Trump could use that as a pretext to fire him in lieu of firing him because he’s annoyed by Russiagate. Another theory, though, is that they wanted the memos because they thought they might be able to find classified information in the ones that Comey shared. If they could, Comey’s image as the meticulous by-the-book lawman who just wants to do right while everyone around him strives to do wrong would be dented. He’s a leaker! Just like Trump said.

And now here’s the DOJ Inspector General, scrutinizing those memos and wondering if maybe Trump wasn’t right.

At least two of the memos that former FBI Director James Comey gave to a friend outside of the government contained information that officials now consider classified, according to people familiar with the matter, prompting a review by the Justice Department’s internal watchdog.

Of those two memos, Mr. Comey himself redacted elements of one that he knew to be classified to protect secrets before he handed the documents over to his friend. He determined at the time that another memo contained no classified information, but after he left the Federal Bureau of Investigation, bureau officials upgraded it to “confidential,” the lowest level of classification.

The Justice Department inspector general is now conducting an investigation into classification issues related to the Comey memos, according to a person familiar with the matter.

Comey has two obvious defenses here. The first is right there in the excerpt — the memos were marked unclassified at the time he shared them. Only later did the DOJ decide that they were classified after all. Hillary Clinton made the same point about the emails on her server, though, and that argument was unpersuasive to, among other people, James Comey. Communications aren’t classified because they’re marked, they’re marked because they’re classified. That is to say, Hillary should have known from the sensitive content of some of the communications that they shouldn’t have been stored in a non-secure setting irrespective of how they were marked. Now here’s Comey facing the same issue. What a nifty twist by the people who are writing the berserk political storyline in the simulation we’re all living in!

But wait. Comey has another defense, notes the Journal: “As FBI director, Mr. Comey had the legal authority to determine what bureau information was classified and what wasn’t. Once he left government, however, the determination fell to other officials.” That is, unlike Hillary, Comey in his role as FBI director was empowered to decide what is and isn’t classified for official government purposes. Natsec lawyer Bradley Moss flagged that too:

In theory Comey could have drafted anything he wanted, handed it off to any friend or reporter he chose in the name of making it public, and simply declared it unclassified in order to avoid criminal trouble. That would have been an egregious abuse of power. That doesn’t appear to be what he did, though; the excerpt above mentions that he redacted one of his own memos to keep classified info out of the public domain. That leaves him with a case that, to the extent that other info in the memos was retroactively deemed classified by others, (a) there’s an honest disagreement as to the proper classification and (b) Comey acted in good faith to keep sensitive material out of the public eye by redacting other parts of his memos.

Imagine the irony, though, if the IG accused him of gross negligence in mishandling classified information — the same charge considered against Hillary Clinton and which James Comey himself decided didn’t apply because, historically, the Bureau has only charged people for intentionally mishandling classified info. An even niftier twist!

One obvious question. Did Comey ask any other Original Classification Authorities to vet his memos before he shared them? With something as sensitive as a document recounting private conversations with the president, you would think he’d consult with the DNI or someone else to make a judgment on his behalf as to whether anything in there should be held back. Because Comey wrote the documents and because they served his interests in asserting that he was resisting attempts by Trump to influence the Russiagate probe, it’s easy to believe that he was too close to the material to be able to fairly judge what should be classified and what shouldn’t be. Why didn’t he recuse himself from classifying his memos and ask someone else high up to do it for him?