President Trump has claimed for months that fired FBI director James B. Comey leaked classified information when he passed a memo of a conversation with Trump to a friend who then spoke to the New York Times about its contents.
We have previously concluded that Comey probably violated his FBI employment agreement — “I 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” — but the remedy for that is you are fired. Comey had already lost his job.
First of all, we should note that Comey, as FBI director, was in the unusual position of deciding what was classified and what was not. He was not consistent in how he labeled his memos, and as far as we know, no explanation has been given.
His first memo, about the briefing for Trump on Jan. 6, 2017, about salacious material in a then-secret dossier, was labeled “SECRET” and “NOFORN” (No dissemination to foreign nationals). “I am not sure of the proper classification so have chosen SECRET,” he wrote. “Please let me know of it should be higher or lower than that.”
The bottom of the memo said, “SECRET/NOFORN/ORCON.” The latter means “originator controlled,” which meant Comey could decide to whom he gave the memo — i.e., his top aides.
The next memo, about a private dinner with Trump at the White House on Jan. 27, was labeled “CONFIDENTIAL/NOFORN,” a lower level of classification. But the memo after that, Feb. 8, about a meeting with then-White House chief of staff Reince Priebus and Trump, is again “SECRET/NOFORN.”
The most important memo — the one shared with a friend — concerned a private meeting with Trump on Feb. 14 in which Comey claims that Trump urged him to stop investigating fired national security adviser Michael Flynn. “He is a good guy,” Trump allegedly said. “I hope you can let this go.”
For the first time, one of the memos is labeled “UNCLASSIFIED/FOUO.” The latter designation means “For Official Use Only,” indicating that the material may not be appropriate for public release.
Comey even notes, “Because this is an unclassified document, I will be limited in how I describe what I said next.”
Was Comey already calculating that this memo would need to see the light of day? It’s an interesting question.
Two subsequent memos (one is actually an email) about conversations with Trump were also listed as “UNCLASSIFIED/FOUO.” His last memo, about a phone call with Trump on April 11, is labeled “CONFIDENTIAL.”
“Some of those memos I decided should be classified,” Comey told CNN’s Anderson Cooper on April 25. “Four others, I wrote them and was highly confident they should not be classified. Those four — I kept a copy at the FBI and a copy in my personal safe at home.”
Comey apparently did not submit his memos to any classifying authority. But now that they have been released, FBI officials redacted portions of the memos written on Jan. 6 (labeled SECRET), Jan. 28 (CONFIDENTIAL), Feb. 8 (SECRET) and April 11 (CONFIDENTIAL). None of the memos written as “unclassified,” including the Feb. 14 memo, had any redactions.
That greatly undercuts Trump’s claim that the Feb. 14 memo contained classified information. If it did, it would have had redactions before its public release.
In his book “A Higher Loyalty,” Comey defended giving the Feb. 14 memo to Dan Richman, a friend who is a professor at Columbia Law School: “Dan had been giving me legal advice since my firing. I told him I was going to send him one unclassified memo and I wanted him to share the substance of the memo — but not the memo itself — with a reporter.”
Comey added: “To be clear this was not a ‘leak’ of classified information no matter how many times politicians, political pundits or the president call it that. A private citizen may legally share unclassified details of a conversation with the president with the press, or include that information in a book.”
In an interview with Bret Baier of Fox News on April 26, Comey said: “I don’t consider what I did with Mr. Richman a leak. I told him about an unclassified conversation with the president.” He described the memos as “personal aide-memoire.… I always thought of it as mine, like a diary.”
He noted that the events in the Feb. 14 memo are fully described in his book and that “the FBI cleared that book before it could be published.” (Many former government officials recount presidential conversations in their memoirs, with appropriate clearance.)
Comey has said he gave four of the memos to three lawyers on his legal team. The exact memos have not been identified, but Comey personally redacted sensitive portions of one memo, the Wall Street Journal reported. But the FBI found “diplomatic sensitive” phrasing in one or two of the memos, Comey told Baier, and so his legal team returned them.
As we noted, only three of the seven memos were originally labeled “UNCLASSIFIED,” so it’s unclear how Comey could say he was “highly confident” that four were not classified. The Justice Department inspector general is conducting an investigation into the classification of the Comey memos, the Wall Street Journal reported. Comey told CNN that the inspector general is not examining whether he mishandled classified information, but “whether I complied with policy as I should in making the memos and in the way I stored them.”
The Wall Street Journal said that after Comey was fired, the FBI upgraded one of the memos he deemed unclassified to “CONFIDENTIAL,” the lowest level of classification, though it is unclear which memo. The Hill newspaper reported in July 2017 that four of the memos were marked “SECRET” or “CONFIDENTIAL,” similar to what was released recently.
A White House official pointed to the Wall Street Journal’s report as evidence that “Comey was operating in a vacuum — by himself,” adding: “That proves he has poor judgment in classifying information. The FBI had to go back and clean up his mess.”
Update, Aug. 29, 2019: The Justice Department’s Inspector General, in a report that was largely critical of Comey, noted that the memo on the Feb. 14 meeting was not deemed to be classified. “We found no evidence that Comey or his attorneys released any of the classified information contained in any of the Memos to members of the media,” the report said.
The Pinocchio Test
The president may have grounds to complain about Comey’s handling of the memos or whether Comey should have given four of them to his legal team, at least one with classified information.
But Trump cannot say that the memo regarding the Feb. 14 meeting — the one memo Comey specifically hoped would reach the news media — contained classified information. For whatever reason, Comey wrote it specifically so it would not be considered classified — and the FBI released it without a single redaction. Ergo, it is not classified. The president further tips this into Four Pinocchio territory by accusing Comey of committing a crime by releasing an unclassified memo.
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