September 3, 2019


Nuts and Bolts of the IG Report on Comey: Correcting Misconceptions (Kel McClanahan, September 3, 2019, JustSecurity)

The Department of Justice (DOJ) Inspector General's report is as close to a definitive history as one could hope for in the saga of former FBI Director James Comey's handling of memos he prepared documenting his private conversations with President Donald Trump. The IG report describes the meetings he had with President Trump, the memos he wrote, what he did with them, and everything that came after.

The purpose of this article is to explain the practical ramifications of the actions Comey took and offer an educated guess as to the likely reason for DOJ's decision not to attempt a prosecution. As for the rest of the report, at 61 pages (plus 18 pages of exhibits), it is an admittedly long read, but I highly advise anyone interested in this field to read it. It is written in plain English and reads faster than expected.

And yet, the report appears almost designed to be misunderstood and mischaracterized.

For our purposes, the primary point of the report is basically this: Comey violated his non-disclosure agreement (NDA) when he gave copies of four memos to his attorneys, but when one personal attorney, Daniel Richman, provided portions of one memo -- called "Memo 4" -- to New York Times reporter Michael Schmidt, none of the information provided was classified. The secondary and related point is that six words in another memo Comey gave his attorneys -- called "Memo 2" -- were classified at the Confidential level, but Comey did not label them as such and the classification happened at the FBI only after the fact. [...]

[C]omey was not an ordinary intelligence employee. He was the FBI Director. He had the authority to bestow appropriate clearances and "need to know" on his attorneys if he so chose -- until, that is, he was no longer FBI director. Unfortunately, Comey hired all three attorneys after he was fired, so he no longer had that authority. Had he hired them while he was still director, this story would have a much different end.

So, in the final analysis, Comey transmitted four memos he wrote as FBI Director to three attorneys who were not authorized to receive them. That was a violation of his NDA, and it does not even matter whether they actually included classified information or not. That was not his call to make. [...]

[W]hen Comey wrote Memo 2 and did not classify it, it was not classified. When he gave it to his attorneys, it was not classified. When it was later classified by other FBI officials, that designation did not apply retroactively because it went against the official decision of an original classification authority who was also their senior in the hierarchy. Therefore, Comey could not be charged with mishandling classified information because at the time he allegedly "mishandled" it, it was not classified information. He could not be charged with mishandling unclassified information, because that is not a crime.

Posted by at September 3, 2019 12:33 PM