Breaking: IG report rips Comey over memo leaks

This should put a ding in James Comey’s self-fitted halo as a teller of truth, but it probably won’t do much more. In a report released minutes ago, Inspector General Michael Horowitz concludes that the former FBI director violated bureau procedures and Department of Justice policies by retaining memos with classified information, leaked them to the press through a cutout, and then neglected to let the FBI know classified information was in the open:

In this analysis section, we address whether Comey’s actions violated Department and FBI policies, or the terms of Comey’s FBI Employment Agreement. We determined that several of his actions did. We conclude that the Memos were official FBI records, rather than Comey’s personal documents. Accordingly, after his removal as FBI Director, Comey violated applicable policies and his Employment Agreement by failing to either surrender his copies of Memos 2, 4, 6, and 7 to the FBI or seek authorization to retain them; by releasing official FBI information and records to third parties without authorization; and by failing to immediately alert the FBI about his disclosures to his personal attorneys once he became aware in June 2017 that Memo 2 contained six words (four of which were names of foreign countries mentioned by the President) that the FBI had determined were classified at the “CONFIDENTIAL” level.

Horowitz also rips Comey’s self-serving rationalization for keeping the memos in the first place:

Comey told the OIG that he considered Memos 2 through 7 to be his personal documents, rather than official FBI records. He said he viewed these Memos as “a personal aide-mémoire,” “like [his] diary” or “like [his] notes,” which contained his “recollection[s]” of his conversations with President Trump. Comey further stated that he kept Memos 2, 4, 6, and 7 in a personal safe at home because he believed the documents were personal records rather than FBI records.

Comey’s characterization of the Memos as personal records finds no support in the law and is wholly incompatible with the plain language of the statutes, regulations, and policies defining Federal records, and the terms of Comey’s FBI Employment Agreement. By definition, Federal records include “all recorded information, regardless of form or characteristics, made or received by a Federal agency…in connection with the transaction of public business.”80 This definition expressly covers any “act of creating and recording information by agency personnel in the course of their official duties, regardless of the method(s) or the medium involved.” 81 Comey’s FBI Employment Agreement likewise acknowledged that “[a]ll information acquired by [Comey] in connection with [his] official duties with the FBI…remain[s] the property of the United States of America.”

Not only that, Horowitz concludes, Comey had to know that his memos dealt with ongoing investigations and therefore should never have been released at all. Pointedly, Horowitz also notes that none of Comey’s colleagues bought his rationalization that the memos were personal rather than work product, making Horowitz’ decision rather easy:

None of the members of Comey’s senior leadership team agreed with or defended Comey’s view that these Memos were personal in nature. Instead, McCabe, Baker, Priestap, and Rybicki each told the OIG that they considered the Memos to be records of official FBI business between the President and the FBI Director. McCabe described the Memos as a “record of [Comey’s] official engagement with the President”; Baker told the OIG that Comey’s Memos “were discussed in the office in connection with [Comey’s] official responsibilities”; and Priestap characterized the Memos as FBI work product “produced by the Director in his capacity as Director.” After Comey was removed, the Memos were uploaded to the FBI’s case management system in connection with an ongoing FBI investigation and Rybicki took steps to ensure that the original Memos were inventoried and preserved with the rest of the Director’s official records.

For the above reasons, we conclude that the Memos are official FBI records as defined by statute, regulations, Department and FBI policies, and Comey’s FBI Employment Agreement. Because they are official FBI records, Comey was required to handle the Memos in compliance with all applicable Department and FBI policies and the terms of his Employment Agreement.

In Horowitz’ summation, he accuses Comey of having failed to set a proper example for everyone else at the FBI. And he also notes that Comey’s former underlings were almost unanimously unimpressed with his actions:

By not safeguarding sensitive information obtained during the course of his FBI employment, and by using it to create public pressure for official action, Comey set a dangerous example for the over 35,000 current FBI employees—and the many thousands more former FBI employees—who similarly have access to or knowledge of non-public information. Comey said he was compelled to take these actions “if I love this country…and I love the Department of Justice, and I love the FBI.” However, were current or former FBI employees to follow the former Director’s example and disclose sensitive information in service of their own strongly held personal convictions, the FBI would be unable to dispatch its law enforcement duties properly, as Comey himself noted in his March 20, 2017 congressional testimony. Comey expressed a similar concern to President Trump, according to Memo 4, in discussing leaks of FBI information, telling Trump that the FBI’s ability to conduct its work is compromised “if people run around telling the press what we do.” This is no doubt part of the reason why Comey’s closest advisors used the words “surprised,” “stunned,” “shocked,” and “disappointment” to describe their reactions to learning what Comey had done.

Almost all of this — with the exception of the internal reactions at the FBI — has been well covered already. It explains why Horowitz referred the matter for potential criminal prosecution; the IG concluded that Comey knowingly and purposefully mishandled and leaked classified information. The DoJ declined to prosecute due to the difficulty in getting a conviction due to the circumstances of when the information was marked CONFIDENTIAL (and likely because of the low level of such classification), but Horowitz presents a pretty clear case of misconduct in this report.

This doesn’t change much for Comey except to add meat on the bones of the referral. Perhaps the revelation of what his former underlings thought of his self-aggrandizing stunts might take a little more shine off that halo, too. It might be a while before CNN or anyone else builds a town hall event around Saint James of Hooverville. The big game will come with Horowitz’ probe into Operation Crossfire Hurricane, and that might be coming soon. Comey had better prepare for more halo dings to come.