Comey, Trump wrote, “doesn’t understand what he did or how serious it is.” The issue is indeed complicated and there is a lot of misunderstanding about it, though not necessarily by Comey.
The first clue that the question of classification is complicated regarding memos written by then-FBI Director James B. Comey comes in the first paragraph of the first document. Comey wrote the memos to memorialize his conversations with president-elect and then President Trump, beginning with a meeting at Trump Tower on Jan. 6, 2017, and continuing to April 11 — less than a month before Trump fired Comey.
When the documents were released last week, they provided contemporaneous evidence to support Comey’s claims that Trump had asked him for his loyalty and, later, had hinted that he’d like Comey and the FBI to curtail its investigation of former national security adviser Michael T. Flynn. Comey gave that memo to his friend Daniel Richman, a professor at Columbia University, to be leaked to the New York Times in an effort to spur the appointment of a special counsel. It was successful.
The release of the memos also reignited a question that has floated around since their existence was revealed in June: Do they contain classified material, and is classified material in the memo or memos Comey leaked to Richman?
That is why that first paragraph in the first Jan. 7 memo is so important.
There were seven memos in total. Four included classified information. Two were classified as “confidential,” the lowest level of classification. Two were classified as secret.
That includes the Jan. 7 memo, which Comey introduced in an email to several of his colleagues with the following paragraph:
“What follows are notes I typed in the vehicle immediately upon exiting Trump Tower on 1/6/17. Although I wrote this less than five minutes after the meeting and have tried to use actual words spoken, including quoting directly in some places, I have not used quotation marks throughout because my purpose was to capture the substance of what was said. I am not sure of the proper classification here so have chosen SECRET. Please let me know if it should be higher or lower than that.”
Why is this important? Because it reinforces something unusual about Comey’s position. He was an “original classification authority” or OCA, meaning he was empowered to determine the classification level of information. (The determination of who has this authority and how it works is complicated.) In the case of the Jan. 7 memo, that classification wasn’t subsequently changed.
That’s an important detail to bear in mind as we consider the question on which Trump spent much of the weekend harping.
“James B. Comey’s Memos are Classified, I did not Declassify them,” Trump continued on Saturday. “They belong to our Government! Therefore, he broke the law!” On Sunday, he quoted a Wall Street Journal article that said Trump gave Richman four memos, two of which contained classified information.
But it’s not as simple as Trump presents it.
We are certain about only one of the memos Comey gave Richman: the Feb. 14 one that detailed the request about Flynn and was unclassified.
The Journal report suggests that Comey also at some point gave Richman the March 1 or March 30 memos, because they’re the only other unclassified memos. (If you’re curious, here’s what all the memos say.) At some point, Comey also gave Richman two of the other four memos.
We don’t know, incidentally, the context in which Comey gave those documents to Richman. From the outset, Trump has accused Comey of leaking classified information to the media, but we know of only one leak — the leak of that unclassified Feb. 14 memo. In his book, Comey describes what he says was his initial interaction with Richman.
“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 writes. One document to the reporter, the New York Times’s Michael Schmidt, resulted in a May 16 article about Flynn.
What about the three other memos that Richman says he received, as first reported by Fox News? It’s not clear that those memos or information from them ever were conveyed to the media. Why would Comey give them to Richman, then? Well, at some point, Richman began to serve as Comey’s attorney, representing him during his interactions with special counsel Robert S. Mueller III’s team. Perhaps those memos — more than germane to Mueller’s questioning — came into Richman’s possession then.
Whether those two classified memos were leaked to the media, someone with access to classified documents still can’t go around handing them out to people. This is where nuance in the Journal’s report becomes important — as does Comey’s ability to classify and declassify documents as FBI director.
The Journal reports:
“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.”
You no doubt noticed in the images above that some sections have been redacted, or obscured by black boxes. The memos released last week are the same documents that Comey wrote, but, to declassify them, classified information was edited out. Our labeling them as “secret” and “confidential” is inaccurate. in a sense, because the memo pages shown were redacted to be made unclassified.
The Journal reports that Comey knew that one of the documents he gave Richman was classified, so he essentially did the same thing as the above — redacted the classified parts. So this tweet …
… is misleading. One of those two memos included confidential information in its unedited form — but that’s not the form in which Comey reportedly gave it to Richman. What’s more, as an OCA, Comey had the authority to declassify documents he’d classified, as Georgetown University’s Laura Donohue explained to The Washington Post over email. Sharing this redacted document was apparently within his scope of authority. (Note that Trump’s complaint in the tweet quoted above — “James B. Comey’s Memos are Classified, I did not Declassify them” — is inaccurate. Trump argued after the Russian Oval Office meeting fiasco that he had the authority to declassify information, but he’s not the only person with that authority.)
So the question of Comey improperly leaking comes down to that other memo, the one that was not classified in his determination but that the FBI subsequently determined to be classified at the lowest level. We don’t know which of the two “confidential” memos it was, but it was either one from Jan. 28 detailing the dinner at which Trump allegedly asked Comey for his loyalty or it was the memo from April 11 in which Comey documents his final phone call with Trump.
If the existing redactions are a guide, the classified information in those memos was either about how Trump was complaining about Flynn’s not having told him about a call from a foreign leader (the Jan. 28 memo) or it was about a terrorist attack in Jordan (the April 11 memo). In each case, the memos are marked as having been classified by “AD CD” — presumably the assistant director (AD) of the FBI’s Counterintelligence Division (CD), Bill Priestap. When the memos were reclassified isn’t clear.
An important point here is that Comey had reason to believe the memo wasn’t classified — as he was the person determining the classification. Whether it should have been classified is a separate question, for which Priestap had a different answer. But it makes Trump’s accusations against Comey somewhat less potent.
Update: On Wednesday, Fox News reported that Richman had “special government employee” status at the FBI. The most important component of that assignation is that he had both a badge for entry to the FBI headquarters — and security clearance. Trump raised Richman’s status in his Thursday morning interview on “Fox and Friends,” saying that “the so-called professor who now turns out to have FBI clearance, which [Comey] never said. He even lied about that because he never said that in Congress.”
Obviously, sharing classified information with someone cleared to receive it is not prohibited.
Let’s summarize. Comey is alleged to have shared four memos with Richman:
- An unclassified memo that he gave Richman in May with instructions to share it with the Times. This was the only identified deliberate leak to the media.
- Another unclassified memo dated either March 1 or March 30 that, like the three other memos, he shared at an unknown time.
- A redacted memo that, if unredacted, would have been classified.
- A memo that is now classified but that apparently was not classified at the time Comey shared it. (“Apparently” because it’s not clear when he shared it or when it was reclassified.) Update: And the recipient of that document was apparently cleared to receive classified material.
The Journal reports that the Justice Department is reviewing the situation. It seems unlikely, based on what we know now, that the department’s inspector general will side with Trump’s portrayal of what happened.