Irony: Did Comey include classified information in his personal memos?

Ah, but did he have any intent? According to The Hill, four of the seven memos James Comey drafted after conversations with Donald Trump contain classified information and should have never left the confines of the FBI — let alone get leaked to the media. As John Solomon points out, this puts an ironic twist to the end of the former FBI director’s career and his last year on the job:

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. …

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.

If true, this would violate 18 USC 1924, which forbids the unauthorized removal and retention of classified material:

Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

The material here would be the memos themselves. If the FBI director writes a document containing classified information, it automatically becomes a government document and has to be handled as such. 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. The portion of the statute which most closely applies would be paragraph (f):

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

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. Also, Solomon writes that the memos had “markings” referring to classification, which would then create all sorts of evidence that Comey knew exactly what he was transmitting. On top of that, any memos Comey wrote in his capacity as FBI director became government documents at the moment he created them, which means he didn’t have the authority to keep them when he got fired from his job, let alone leak them. This was a point I raised at the time, and my colleague Streiff at RedState raised again last night in relation to another law:

When Comey personal memos on meetings with Trump were made known, several observers, myself among them made two points. First, the memos were clearly government documents as defined by the Federal Records Act. You had one federal employee writing an aide memoire concerning a conversation he had with another member of the federal government about matters involving his official duties. The meeting took place while both officials were on duty. The meeting took place in a government office. The memo was written on a government provided computer while the individual writing it sat in a government card, driven by a government driver, and most likely with at government bodyguard. Some of the memos were discussed with subordinates of the author during duty hours in a government office. In short, if there was ever such a thing as a government document, Comey’s memos were that thing.

Regardless of whether the memos are confirmed to contain classified information, Comey already has potential legal problems with their retention. Whether anyone takes the Federal Records Act seriously enough to take action on that basis is another question entirely. Comey himself didn’t take it seriously enough to push for prosecution of Hillary last year, even with an elaborate system of deception set up to violate the FRA.

Fox News picked up the story this morning, which Trump amplified:

The Fox tweet is incorrect, at least as far as The Hill’s story goes. Solomon’s sources cite “secret” as the highest classification, not “top secret,” and the story does not make clear whether the leaked memo contained any classified information at all. We do not know (yet) if Comey leaked classified information, nor do we know that any of it was top secret.

Finally, keep this in mind. James Comey has been around a very long time, and is extremely well versed in all of these laws and procedures. What’s being described here is so clumsy that it would raise questions about how Comey rose as far as he did in the FBI and Department of Justice under a number of administrations of both parties. Keep a healthy level of skepticism about this, because it may just be that Comey anticipated all of this and may have handled this differently than how some anonymous sources now characterize it.