The commentary about James Comey’s memoranda has been all over the map. The former FBI director says he made memos contemporaneous to, or immediately after, all nine of the meetings or phone calls he recalls having had with Donald Trump, when the latter was president-elect and, later, president. Comey acknowledges that he orchestrated the leak of at least one memo — or rather, a snippet mined from its contents — to the New York Times. All of the memos, he testified, have now been surrendered to the special counsel, Robert Mueller.
George Washington University’s Jonathan Turley does a good job in The Hill outlining much of the relevant law. One major issue is whether these documents belonged to Comey, in the sense of being his property rather than the government’s. That is the position he took in his testimony. Like Turley, I think the former director is wrong.
As a longtime prosecutor, I have a black-and-white test for this sort of thing: Would a judge in a criminal trial consider the documents to be government property for purposes of federal discovery law?
That law requires the government to disclose to the defense any prior statement made by a witness, written or otherwise recorded, that is in the government’s possession. It also mandates that the government disclose any information that is material to the preparation of the defense (such as evidentiary exhibits that the prosecution plans to introduce into evidence). Finally, the government must produce any exculpatory evidence — meaning, any evidence that (a) suggests the accused is not guilty, (b) contradicts the prosecution’s theory of the case, or (c) could be used to impeach a witness’s testimony.
Comey’s notes may fall into all three of those disclosure categories. Let’s imagine that Democrats get their dream scenario: President Trump is charged with obstruction. (As I’ve observed several times — see, for instance, here and here – there is no prosecutable obstruction case, but let’s stick with the hypothetical.) Comey could be a witness at trial; his memos could be evidence; and the memos contain exculpatory information (e.g., Comey’s recollection of Trump’s actual words expressing “hope” that the FBI would drop the Flynn investigation is inconsistent with the inference Comey now draws that Trump was ordering him to drop the Flynn investigation).
With that as our hypothetical, what would happen if a prosecutor in the case argued to the presiding judge that the government did not need to disclose Comey’s notes because they are his personal property and not in the government’s possession? Rest assured, the judge would blow a gasket, and rightly so.
The memos were written by an FBI official, apparently on FBI equipment, and related directly to FBI investigative business. Indeed, the fact that investigative business was central to Trump’s conversations with the former director is what induced Comey to write the memos: He perceived the president’s statements as political intrusion into law-enforcement investigations and intelligence probes. The memos were thus government property, and the then-director was obliged to make sure they were retained in government files.
That does not mean it would have been improper for Comey to keep a copy of them for himself. But doing that would not change the character of the memos as government property, and it would not relieve Comey of the obligation to comply with all government disclosure restrictions on the contents of the memos. At the Federalist, Bre Payton reproduces a copy of the standard FBI employment agreement, making a persuasive argument that Comey’s memos are government property and that the former director’s disclosure of information in them to unauthorized persons violated the employment agreement’s terms.
Nor would the memos’ status as government documents turn on whether or not the documents were physically placed in the government’s files. Nor would their storage outside the government’s filing system relieve the government of any disclosure obligations in a criminal case; a court would simply rule that the government constructively possessed the documents through Comey, who was its agent when he made and retained them. The government would be responsible for securing them and complying with its disclosure obligations.
I have also heard it suggested that the memos are not FBI reports because they are not composed as such — meaning that they are not in the FBI Form 302 template. This, literally, exalts form over substance. A 302 report is a government file not because of its format but because its content records government business (e.g., a witness interview or a surveillance report). The style in which the substance appears is irrelevant. I can’t imagine that, as FBI director, Comey would have countenanced attempts by his subordinates to avoid compliance with federal recordkeeping standards by putting their reports in the form of memos to themselves rather than 302 reports to the official file. In any event, such attempts would change nothing: The memos would still be government property, subject to all retention and disclosure laws.
It seems impossible that the Justice Department would dare take the position in court that the memos are not government property.
Since it seems impossible that the Justice Department would dare take the position in court that the memos are not government property for purposes of mandatory government disclosure obligations under federal law, I don’t see how the memos could be deemed Comey’s personal property.
There is also a claim floating around that the memo(s) should not be deemed to have been “leaked” because they were, it is asserted, not classified. We need to unpack this errant suggestion in three steps because it is so wrongheaded.
1. What Is a ‘Leak’?
Strangely, there seems to be some dispute about what a “leak” is. In the context of government information, it is when a public official who has access to non-public information discloses the information to a person not authorized to have it — frequently, a member of the press. The official has gotten access to the information because he either is authorized to handle it or has obtained unauthorized access to it by gaining access — legitimately or otherwise — to the place where it is stored. Information is deemed “non-public” if the government has never officially disclosed it. That is, even though a prior leak may have publicized a piece of information, the government still considers that information non-public if it has not been publicly confirmed by an official authorized to do so.
To be clear, the leak is the transmission of the information from the public official to the person not authorized to have it. The publication of leaked information by the press is not a leak — it is the result of a leak. Press publication is generally thought to be protected by the First Amendment. (There is some scholarly dispute about whether the media could be liable for receiving and publishing certain kinds of information, such as national-defense information.)
2. Most Leaks Do Not Involve Classified Information
It appears that after a couple of years of immersion in the Hillary Clinton e-mail scandal, we have developed a classified-information obsession. But as point 1, above, makes clear, information need not be classified to be leaked. Classified leaks are generally the worst leaks, because they are manifestly criminal and their exposure portends the most harm to the country. But they are neither the only nor the most common kind of leaks.
Basically, any non-public information collected by the government is supposed to be handled with care and not disclosed in the absence of authorization. It has to be that way: The government has the power to compel information from us that we would not otherwise surrender; thus, the privacy of that information must be protected even though only a tiny percentage of it is classified.
In law enforcement, moreover, there is a category of information known as “law-enforcement sensitive” — such as details about a pending investigation, the identities of informants, deliberations over potential charges, etc. For obvious reasons, such information is given nearly as much protection as classified information. Similarly, federal law requires that the government keep grand-jury information secret.
Leaks need not involve classified information to be criminal violations.
Leaks need not involve classified information to be criminal violations. In fact, even some of the criminal statutes that apply to leaks of classified information (such as the Espionage Act) refer not to “classified” information but to information “related to the national defense” — which is usually classified but not necessarily so. Moreover, as Turley notes (and as I have noted in the past — see, for instance, here), the federal embezzlement statute (Section 641 of the penal code) makes it a felony to convert to one’s own private use any government property. Unlawful conversion can include “convey[ing] or dispos[ing] of any record . . . or thing of value of the United States or of any department or agency thereof”
3. Are the Comey Memos Classified?
There is, finally, the question of what is “classified.” It seems to have been assumed, by former director Comey as well as by many commentators, that Comey’s memos are not classified because he did not deem them classified — and, as FBI director, he had the authority to make such judgments. This brings us back to the notorious “marked classified” claim made by the Hillary Clinton camp throughout the scandal over e-mails on her homebrew server: that information in the e-mails was not classified, or at least Mrs. Clinton had no reason to believe it was classified, because it was not physically stamped with classified markings. Ironically, it was then–FBI director Comey who refuted this claim at his July 2016 press conference:
It is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.
To put a finer point on it, whether or not something is classified depends on the contents, not on whether some official with classification authority has deemed it, say, “top secret” and stamped it as such. As we pointed out during the Clinton e-mails hullaballoo, many government documents are “born classified.” That is, the contents of the documents fit the classification categories spelled out in the controlling executive order (EO 13526).
Jim Comey is a smart and careful guy, so his judgment that the information contained in his memos was not classified, while not dispositive, is entitled to considerable deference. He knows exactly what is in the memos, while we have only a general idea, based on his testimony. I’m sure if he was not planning to store them in the government’s secure system for classified information, he tried to be careful not to include information that would have called for such safekeeping.
On the other hand, we know that aspects of the so-called Russia investigation are classified. (Comey has said as much in congressional testimony.) We also know that the government regards many communications between national-security officials and the president as classified. The prosecution of former CIA director David Petraeus for mishandling classified information, for example, centered on memos he wrote to himself (in the form of journals) that the government deemed classified because they included, among other things, summaries of conversations between General Petraeus (when he was commanding U.S. forces in war zones) and the president.
To be clear, Petraeus never disputed that his journals contained highly classified information. Comey, by contrast, maintains that his do not. Plainly, not every conversation with the president is classified, and I would give Comey the benefit of the doubt in this regard. Nevertheless, as Turley observes, Comey never sought a classification review of his memos by the White House or the Justice Department. It is possible that they’d disagree with Comey’s conclusion that the memos are not classified. Going forward, it will be interesting to see what position the government takes regarding the memos: Their disclosure has already been demanded by Congress, and additional disclosure demands will be the subject of Freedom of Information Act litigation.
I’m betting the memos are not classified. There is no doubt, though, that at least one of them has been leaked, and that the leak was, to say the least, improper.