The Inspector General for the Department of Justice released his report on his investigation of former FBI Director James Comey’s handling of FBI documents this morning. You can read the full report here. The report addresses the seven memos that Comey wrote on his meetings and conversations with President-Elect and President Trump, some of which he kept copies of in his home safe and gave to his personal lawyers. In one instance, he arranged for the contents of his memo to be reported by the New York Times. By his own acknowledgement, this was for the purpose of bringing about the appointment of a special counsel to investigate President Trump.
First, some excerpts from the report; then a few comments on my impressions of the report.
As described in this report, we conclude that Comey’s retention, handling, and dissemination of certain Memos violated Department and FBI policies, and his FBI Employment Agreement.
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Comey told the OIG he created Memo 2 because he viewed Trump as “fundamentally dishonest” and was “worried very much that [Trump] would say I had said things at this dinner that were not true; that I had promised him something; that I had given him assurances about something.” Comey said he saw that possibility as “dangerous,…to me, but also to the FBI.” Comey told the OIG that during the dinner, the President asked for his loyalty, and that in that moment, Trump was not
…asking me for my loyalty because I’m a Government employee. He want[ed] my loyalty, personally. And if President Trump were sitting here, I think he would consider that a personal conversation [—][“]I want you lashed to me.[“]
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Comey told the OIG that, when he was removed as FBI Director, he had four memos—Memo 2, Memo 4, Memo 6, and Memo 7—in his personal safe at home. He stated that he did not notify anyone at the FBI that he had retained these documents. He told the OIG that he had “had them there for quite a while,” and that because he viewed them as personal documents, like his will or his passport, it “never would’ve occurred to [him]” to give those back to the FBI. He also stated that he did not seek permission of the FBI to retain these Memos, because he did not consider them to be FBI records.
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Comey told the OIG that on Tuesday, May 16, 2017, he “w[o]ke up at 2 o’clock in the morning, like, struck by a lightning bolt.” He said he suddenly realized that if, as the President had said in his May 12, 2017 tweet, there were “tapes,” then Comey’s version of his one-on-one conversations with Trump could be corroborated. In particular, Comey told us he thought that the President “would be heard on that tape asking [Comey] to let Flynn go” as Comey had documented in Memo 4. Comey said he also realized that “Trump will eventually figure out he shouldn’t have said that. And he may well destroy the tapes,” so somebody needed to preserve them. Comey said he was
…lying there, playing this in my mind. And I thought, you know what, I can actually do something. That if I put out into the public square that encounter, that will force DOJ, likely to appoint a Special Counsel to go get the tapes. Or even if they won’t do that, it will force them to go get the tapes.
Comey told the OIG he lay awake thinking the tapes could be preserved, “[b]ut only if I spur [the appointment of a Special Counsel] by putting this out.”
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Comey’s characterization of the Memos as personal records finds no support in the law and is wholly incompatible with the plain language of the statutes, regulations, and policies defining Federal records, and the terms of Comey’s FBI Employment Agreement. By definition, Federal records include “all recorded information, regardless of form or characteristics, made or received by a Federal agency…in connection with the transaction of public business.”80 This definition expressly covers any “act of creating and recording information by agency personnel in the course of their official duties, regardless of the method(s) or the medium involved.”81 Comey’s FBI Employment Agreement likewise acknowledged that “[a]ll information acquired by [Comey] in connection with [his] official duties with the FBI…remain[s] the property of the United States of America.”
Comey’s drafting of the Memos can only be viewed as the “act of creating and recording information by agency personnel in the course of their official duties.” …
Further, much of the content of the Memos was directly tied to FBI investigative activities.
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As Comey well knew, classified information is never considered personal property; rather, it is the property of the U.S. government
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Comey’s actions with respect to the Memos violated Department and FBI policies concerning the retention, handling, and dissemination of FBI records and information, and violated the requirements of Comey’s FBI Employment Agreement.
Comey violated Department and FBI policies, and the terms of his FBI Employment Agreement, by retaining copies of Memos 2, 4, 6, and 7 after he was removed as Director, regardless of each Memo’s classification level. As a departing FBI employee, Comey was required to relinquish any official documents in his possession and to seek specific authorization from the FBI in order to personally retain any FBI documents. Comey failed to comply with these requirements.
In view of the clarity of relevant provisions of law, policies, and Comey’s Employment Agreement, the assertion that the Memos were personal records was not reasonable. …
Comey violated FBI policies and the requirements of his FBI Employment Agreement when he sent a copy of Memo 4 to Richman with instructions to provide the contents to a reporter, and when he transmitted copies of Memos 2, 4, 6, and a redacted version of 7 to his three attorneys.
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Comey said his view at the time was that “if the world knew there might be tapes of Donald Trump asking me to drop an investigation, there would be tremendous pressure for [the Deputy Attorney General] to hand it to an independent prosecutor.” Comey also said he believed that this was something he was “uniquely situated to do” as a private citizen, but that he chose to do this through an intermediary because he did not want to respond to questions from reporters.
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 clearly considered the contents of Memo 4 highly sensitive—in fact, as he stated in his June 8, 2017 congressional testimony, Comey and other senior leaders of the FBI had decided not to report the President’s statements to the Attorney General or Deputy Attorney General, and to keep the President’s statements “very closely held,” so that the FBI leadership could “figure out what to do with it down the road as our investigation progressed.” 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. By his own admission, Comey disclosed the contents of Memo 4 in an attempt to force the Department to take official investigative actions—to appoint a Special Counsel and preserve any tapes as evidence.
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Members of Comey’s senior leadership team used the adjectives “surprised,” “stunned,” “shocked,” and “disappointment” to describe their reactions to learning that Comey acted on his own to provide the contents of Memo 4, through Richman, to a reporter. The unauthorized disclosure of this information—information that Comey knew only by virtue of his position as FBI Director—violated the terms of his FBI Employment Agreement and the FBI’s Prepublication Review Policy.
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Former Director Comey failed to live up to this responsibility. By not safeguarding sensitive information obtained during the course of his FBI employment, and by using it to create public pressure for official action, Comey set a dangerous example for the over 35,000 current FBI employees—and the many thousands more former FBI employees—who similarly have access to or knowledge of non-public information. Comey said he was compelled to take these actions “if I love this country…and I love the Department of Justice, and I love the FBI.” However, were current or former FBI employees to follow the former Director’s example and disclose sensitive information in service of their own strongly held personal convictions, the FBI would be unable to dispatch its law enforcement duties properly, as Comey himself noted in his March 20, 2017 congressional testimony. Comey expressed a similar concern to President Trump, according to Memo 4, in discussing leaks of FBI information, telling Trump that the FBI’s ability to conduct its work is compromised “if people run around telling the press what we do.” This is no doubt part of the reason why Comey’s closest advisors used the words “surprised,” “stunned,” “shocked,” and “disappointment” to describe their reactions to learning what Comey had done.
We have previously faulted Comey for acting unilaterally and inconsistent with Department policy. Comey’s unauthorized disclosure of sensitive law enforcement information about the Flynn investigation merits similar criticism. In a country built on the rule of law, it is of utmost importance that all FBI employees adhere to Department and FBI policies, particularly when confronted by what appear to be extraordinary circumstances or compelling personal convictions. Comey had several other lawful options available to him to advocate for the appointment of a Special Counsel, which he told us was his goal in making the disclosure. What was not permitted was the unauthorized disclosure of sensitive investigative information, obtained during the course of FBI employment, in order to achieve a personally desired outcome.
The IG’s report is being described in some news accounts as “scathing.” As these excerpts show, that is a fair characterization. Additional thoughts:
1) On Twitter this morning, Comey took a victory lap, as though the IG’s report somehow vindicated him. While it is true that the Attorney General exercised his discretion in favor of not charging Comey criminally, any suggestion that the IG report in any way exonerates Comey is absurd.
2) It appears that Comey testified falsely before the Senate Select Committee on Intelligence. He told the committee that he had shared one of his memos, but failed to disclose that he had also distributed several others outside the FBI. Comey told the IG it was because the Senators didn’t ask the proper question. However, that isn’t correct, as the transcript shows:
3) The overriding impression one gets from the IG’s report is that James Comey was a swamp creature who was dedicated to destroying President Trump. Comey regards it as a scandal that the president asked Comey to be loyal to him. In fact, Comey was disloyal. He was scheming against the president he was supposed to be serving. That is the real scandal.
4) On May 16, 2017, the New York Times broke a story about one of Comey’s meetings with Trump. The paper claimed its story was based on information from two sources:
One of the sources, of course, was Richman. But who was the second? No one could answer that question. One possibility is that the Times lied. Perhaps the story was too good to wait for a second source, who probably never would have surfaced.
MN Prager Discussion Group 