Criminal Justice & the Rule of Law

What That Comey Email Report Really Says

Benjamin Wittes
Thursday, August 29, 2019, 6:29 PM

The inspector general of the United States Department of Justice says that a witness to gross misconduct by the president of the United States has a duty to keep his mouth shut.

Then-FBI Director James Comey and Then-Deputy Attorney General Sally Yates, 2016 (Source: Flickr/Federal Bureau of Investigation)

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The inspector general of the Justice Department has determined that it is misconduct for a law enforcement officer to publicly disclose an effort to shut down his investigation.

Michael Horowitz would probably not describe his findings that way. But that seems to me the inescapable message of the inspector general’s report, released today, on former Director James Comey’s handling of his memos on his interactions with President Trump.

To be sure, you have to read through a lot of pages, facts and argument to get there. But get there you do if you read the document carefully. It’s an extraordinary message for an inspector general to send. And it warrants scrutiny.

For all that Horowitz spent two years on this investigation, there aren’t a lot of new facts—at least not major ones—in this document. The reason is simple: Comey has never been anything but straightforward concerning why he wrote the seven memos in question, what he did with them, whom he shared them with and what his motives were in doing so. On all significant factual questions, the 62-page report merely fleshes out a story that has been known to the public for the better part of two years.

What the report adds is loud condemnation. Horowitz reserves the last 10 pages of the report for howling about how Comey “violated applicable policies and his Employment Agreement,” about his release of “official FBI information and records to third parties without authorization,” and about his failure to “immediately alert the FBI” when he learned that material he had given his lawyers “contained six words ... that the FBI had determined were classified at the ‘CONFIDENTIAL’” level.

Most of all, however, he’s upset by Comey’s “unauthorized disclosure of sensitive law enforcement information about the [Michael] Flynn investigation.”

The president is thrilled:

For my part, I’m baffled—for reasons I’ll explain.

The facts are these—and, as I say, have been known for a long time: Comey wrote memos detailing seven of nine interactions he had with the president. Most of these memos were unclassified. Comey did not consider these unclassified memos to be FBI records but personal ones, aids to his own memory. So in addition to keeping copies at the bureau, where he shared them with close advisers, he stored them in his personal safe at home. Consistent with his attitude toward them, when he was fired, he did not return them to the FBI but kept the memos. What’s more, he also asked a friend—Dan Richman—to share the substance of one of them with New York Times reporter Michael Schmidt in an effort to precipitate the appointment of a special counsel. Comey also shared a larger group of the memos with his three lawyers (including Richman). When the FBI reviewed the memos in advance of Comey’s June 2017 testimony before Congress, however, the team—in an abundance of caution—classified brief segments of two of the previously unclassified memos at the “Confidential” level. When Comey disclosed to Congress that he had given the material to Richman, the FBI sought to retrieve the memos from him, and it succeeded in doing so. No classified material was ever disclosed publicly—as Horowitz acknowledges.

Ironically, the main new thing to be learned from the inspector general’s report on a factual level is merely the details of the process the FBI used to retroactively examine these memos for possibly classified material. As the report details, the supposed “Deep State” conspirators, who were out to conduct a treasonous “coup” against the president, took a break from coup plotting and busied themselves with carefully examining the work of their former leader to make sure that no words infringed upon the president’s right to keep classified material secret. And Lisa Page, Peter Strzok and Jim Baker—along with some others—recommended that a few passages be classified at the Confidential level, the lowest level, because of diplomatic sensitivities.

In retroactively classifying this material, the FBI folks seem to have been been overly cautious. A recent court decision, as the inspector general notes in footnote 78, “upheld the FBI’s classification of one of the words redacted in Memo 2 (the name of a country) but ruled that the FBI had not carried its burden to support the redaction of the remaining words.”  So recall as you read further that the classified content here boils down ultimately to a single word, the name of a country. But never mind that. There is no doubt that Comey, as the FBI director, had the authority to make the initial judgment about what was classified, and that the FBI after he left had the authority to revisit the matter and make a different judgment. And there is no doubt that once the FBI made this judgment, Comey and his lawyers needed to return the material, which—in fact—is exactly what happened.

So what has Horowitz reaching for smelling salts? It’s actually a little hard to tell once you strip away his table pounding.

The foundation of much of his distress is that the inspector general disagrees with Comey about whether these documents were personal notes or agency records. He thinks they are FBI documents, not Comey’s personal memory aids. Fair enough. He may well even be right about that. The rules here are pretty sweeping. The government claims very broad rights over everything employees write, think or produce in the remotest connection to government service. These were, after all, memos about information to which Comey had access only because he was FBI director. And they do involve sensitive government information.

But as Comey would say, lordy! Keeping or retaining personal copies of unclassified government records is hardly a big deal. An enormous number of government officials make notes to themselves and retain them. Officials routinely leave office and write books about their government service. Writing a few notes to one’s own files pales in comparison. So sure, if Horowitz wants to consider this a big deal, he’s entitled to say whatever he likes. But that aspect seems kind of foolish as the basis for the kind of hand-waving that Horowitz engages in.

Yet on this foundation, much of the rest of the report rests. Comey should have returned the memos once he left office, Horowitz argues, before the FBI came to collect them. He didn’t. He shouldn’t have given any of the memos to his lawyers. And when he learned that the FBI had retroactively classified some material—and remember, we’re now talking about one word of properly classified material—he should have “immediately alert[ed] the FBI” about the unauthorized disclosure. According to the report (see p. 59 if you don’t believe me), Comey learned of the classification decision on June 7, 2017, and he disclosed publicly during his congressional testimony the following day that he had given material to Richman. Within another 24 to 48 hours, Richman had informed the bureau that the lawyers had other memos. In Horowitz’s view, the fact that Richman (not Comey) notified the FBI after Comey’s testimony does not “fulfill[] Comey’s obligation to immediately report his disclosure of classified information to unauthorized persons.”

But most of all, Horowitz seems upset because Comey, through Richman, disclosed the substance of the Flynn memorandum to Schmidt. The fact that the president suggested the FBI director should “let … go” the investigation into Flynn is, Horowitz argues, law enforcement sensitive—though not classified—material. The move was thus the “unauthorized disclosure of sensitive investigative information, obtained during the course of FBI employment, in order to achieve a personally desired outcome” (the appointment of a special counsel). Comey had earlier declined to confirm the Flynn investigation in testimony before Congress while still FBI director. Now he was taking that step by having Richman disclose the contents of his memo to the New York Times.

But Horowitz has a big factual problem on this point. Comey, in fact, did not disclose anything about the Flynn investigation in that memo that was not already public. The fact of the Flynn investigation had been publicly disclosed the month before, in congressional testimony by Sally Yates, as Horowitz acknowledges in some footnotes. Here is what Yates said before the Senate Judiciary Committee. I am quoting her at some length because it is necessary to understand just how much she revealed:

YATES: I had two in-person meetings and one phone call with the White House Counsel about Mr. Flynn. The first meeting occurred on January 26, called Don McGahn first thing that morning and told him that I had a very sensitive matter that I needed to discuss with him, that I couldn't talk about it on the phone and that I needed to come see him. And he agreed to meet with me later that afternoon.

I took a senior member of the national security division who was overseeing this matter with me to meet with Mr. McGahn. We met in his office at the White House which is a skiff (ph) so we could discuss classified information in his office. We began our meeting telling him that there had been press accounts of statements from the vice president and others that related conduct that Mr. Flynn had been involved in that we knew not to be the truth.

. . .

YATES: So I told them again that there were a number of press accounts of statements that had been made by the vice president and other high-ranking White House officials about General Flynn's conduct that we knew to be untrue. And we told them how we knew that this - how we had this information, how we had acquired it, and how we knew that it was untrue.

And we walked the White House Counsel who also had an associate there with him through General Flynn's underlying conduct, the contents of which I obviously cannot go through with you today because it's classified. But we took him through in a fair amount of detail of the underlying conduct, what General Flynn had done, and then we walked through the various press accounts and how it had been falsely reported.

We also told the White House Counsel that General Flynn had been interviewed by the FBI on February 24. Mr. McGahn asked me how he did and I declined to give him an answer to that. And we then walked through with Mr. McGahn essentially why we were telling them about this and the first thing we did was to explain to Mr. McGahn that the underlying conduct that General Flynn had engaged in was problematic in and of itself.

. . .

We told him the third reason was -- is because we were concerned that the American people had been misled about the underlying conduct and what General Flynn had done, and additionally, that we weren't the only ones that knew all of this, that the Russians also knew about what General Flynn had done.

. . .

And that created a compromise situation, a situation where the national security adviser essentially could be blackmailed by the Russians. Finally, we told them that we were giving them all of this information so that they could take action, the action that they deemed appropriate (emphasis added).

In short, Yates informed Congress—and the public—that the Justice Department had developed information about Flynn’s “underlying conduct,” about which the department knew him to have lied to the vice president “and others.” She specifically disclosed that the FBI had interviewed Flynn on a specific date. She disclosed that the department feared a “compromise situation” in which Flynn could be subject to Russian blackmail.

The memo Comey wrote and had Richman disclose adds exactly one thing to this picture, and it’s not about Flynn. Here is all of what the memo has to say about the Flynn investigation:

[Trump] began by saying he wanted to “talk about Mike Flynn.” He then said that, although Flynn “hadn’t done anything wrong” in his call with the Russians (a point he made at least two more times in the conversation), he had to let him go because he misled the Vice President, whom he derscribed as a “good guy.” He explained that he just couldn’t have Flynn misleading the Vice President and, in any event, he had other concerns about Flynn, and had a great guy coming in, so he had to let Flynn go.

. . .

He then referred at length to the leaks relating to Mike Flynn’s call with the Russians, which he stressed was not wrong in any way (“he made lots of calls”), but that the leaks were terrible.

. . .

He then returned to the topic of Mike Flynn, saying that Flynn is a good guy, and has been through a lot. He misled the Vice President but he didn’t do anything wrong in the call. He said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” I replied by saying, “I agree he is a good guy,” but said no more.

What Comey’s memo discloses is not that there was a Flynn investigation. That was already public. It was not anything about the Flynn investigation’s contents or activities or subject matter. It was only that the president of the United States tried to stop the investigation.

In footnote 94, Horowitz tries to argue that Comey’s disclosure adds something material about the investigation, while Yates’s testimony had not:

During her testimony before the Senate Judiciary Committee, in response to questions from a Committee member, Yates made reference to an FBI investigation of Flynn. Yates’s reference to the Flynn investigation concerned the timing of the Department’s decision to notify the White House about Flynn and ensuing discussion between Yates and McGahn regarding the risk of Flynn being subject to blackmail by the Russians for providing false information to Vice President Pence. Neither Yates during her testimony, nor Comey in his May 3, 2017 testimony while still FBI Director, provided any details about the then-ongoing Flynn investigation, or described any internal Department discussions or decisions. By contrast, as described above, while Memo 4 did not describe internal Department discussions or decisions, Comey’s disclosure of Memo 4 provided the public with details relevant to the Flynn investigation (emphasis added).

In fact, as the transcript above shows, Yates provided a lot of “details about the then-ongoing Flynn investigation” and “internal Department discussions or decisions.” She described which component of the department was conducting the investigation and, thus, that it was a national security investigation. She described the concerns that senior Justice Department officials had about Flynn’s underlying conduct. She described details of senior Justice Department officials’ conversations with the White House about it all. I’m not suggesting Yates did anything wrong in doing so; she spoke after consulting with the Justice Department about what was appropriate for her to say. But this having been done, the disclosure of Comey’s memo added exactly one fact: that the president had sought to shut the investigation down.

And it is that fact that Horowitz faults Comey for making public:

Comey violated FBI policy and the requirements of his FBI Employment Agreement when he chose this path. By disclosing the contents of Memo 4, through Richman, to The New York Times, Comey made public sensitive investigative information related to an ongoing FBI investigation, information he had properly declined to disclose while still FBI Director during his March 20, 2017 congressional testimony. Comey was not authorized to disclose the statements he attributed to President Trump in Memo 4, which Comey viewed as evidence of an alleged attempt to obstruct the Flynn investigation and which were relevant to the ongoing Flynn investigation. . . . Comey placed in the public domain evidence relevant to the investigation of Flynn, and what he clearly viewed as evidence of an attempt to obstruct justice by President Trump. Rather than continuing to safeguard such evidence, Comey unilaterally and without authorization disclosed it to all (emphasis added).

And there it is: the inspector general of the United States Department of Justice taking the position that a witness to gross misconduct by the president of the United States has a duty to keep his mouth shut about what he saw. Remember, after all, that Comey was a witness here as well as the former FBI director. That’s an extraordinary position for a law enforcement organization to take. If that is what FBI policy and an employment agreement required of Comey under the extraordinary circumstances he faced, so be it. I’m glad both were given their due weight.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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