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Did Comey Leak Classified Information? Why His Trump Memos Could Spell Legal Trouble.


There’s breaking news about the #ComeyMemos and it’s considerably muddying the waters regarding who they reflect badly upon. As it turns out, there are seven memos written by former FBI Director James Comey, which recorded Comey’s personal recollections of his conversations with President Trump about the Russia investigation. Sunday night, The Hill reported that four of those memos had markings making clear they contained information classified at the “secret” or “confidential” level, according to “officials familiar with the documents.”

So the then-FBI Director wrote a classified memo. Why is that a big deal? Well, a few reasons. There’s the fact that Comey testified under oath that the memos were unclassified personal documents. There’s also that little phone call that Comey made to his friend, the Columbia professor, for the purpose of leaking the existence of the memos to the press. And lastly, there’s that whole Hillary Clinton thing, where Comey’s public pronouncement of Clinton as “extremely careless” was the wrist-slap heard round the world (or at least round the electoral college).

Comey’s sworn testimony that the memos were unclassified

Remember this? During Comey’s testimony on Capitol Hill, there was this exchange with Sen. Mark Warner:

WARNER: And I — I found it very interesting that, in the memo that you wrote after this February 14th pull-aside, you made clear that you wrote that memo in a way that was unclassified.

If you affirmatively made the decision to write a memo that was unclassified, was that because you felt, at some point, the facts of that meeting would have to come clean and come clear and actually be able to be cleared in a way that could be shared with the American people?

COMEY: Well, I remember thinking, this is a very disturbing development, really important to our work. I need to document it and preserve it in a way — and — and this committee gets this, but sometimes when things are classified, it tangles them up. It’s hard…


So are the memos simply personal documents that Comey prepared for his own purposes? Or are they official, classified, government documents? Most likely, both. Comey’s testimony did not make clear how many memos were prepared, nor did it detail which information was in which memo. But lack of clarity is fertile soil for accusations of perjury. Comey’s enemies will likely complain that his testimony was untruthful and he will be left to square his sworn statements with what those reviewing his memos have found.

Comey’s Leaking the Memo’s Content to the Press

The bigger problem will likely be Comey’s decision to publicize the information in the memos. When Comey testified last month, he explained that he asked a lawyer friend to leak the information from one memo to the news media in an effort to increase the likelihood of having a special prosecutor appointed. If that particular information was the subject of one of the for classified memos, that could be extremely problematic for the former director. In his words, “my view was that the content of those unclassified, memorialization of those conversations was my recollection recorded.” However, his view may differ substantially from that of the U.S. government. Standard FBI procedure dictates that all records created during official duties are government property, not to be disclosed without specific authorization. If Comey’s late-night phone call prompted his friend to divulge classified information, or information properly held with official FBI documents, there may be consequences to face. What exactly that would mean, given that Comey is no longer an FBI employee and is simply a private citizen, is not entirely clear.

But let’s not forget that mishandling classified information can be a crime. The Espionage Act, codified at 18 U.S.C. § 793(d), prohibits:

“Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted … to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it …”

If (and at this point, it’s certainly a big “if,” given that we don’t know which information was classified or whether that was the precise information that was shared) Comey publicized information he shouldn’t have, there is at least the potential that he would be criminally prosecuted for doing so.

Comey and Clinton

Last, but certainly not least, the classified nature of the memos means that Comey is likely going to have to deal with a side-by-side comparison of his actions and Emailgate. Last July, then-Director Comey gave a press conference in which he detailed the investigation into Hillary Clinton’s email servers. He delivered this sentence, to the great dismay of some and the rapture of others:

“Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”

More than a few people have suggested that Comey’s statements about Secretary Clinton’s extreme carelessness in July, and their sequels later last fall had a major impact on the 2016 election. While Comey may have felt “mildly nauseous” back then, the queasiness may have been insufficient to curb his own handling of classified information.  During Clinton’s presidential campaign, more than a few opponents (including, perhaps most notably, Donald Trump) called for Clinton’s criminal prosecution regarding her mishandling of classified information.  If it was unorthodox for Comey to publicly detail the FBI investigation that yielded no charges, it’s positively bizarre that Comey himself may now be at the center of parallel mishandling classified info.

There’s still more to be learned about the seven Comey memos and their classified markings. The precise origin of the memos, as well as the chain of communication for each of them will likely become an issue that will play out in both the media and Congress.  The days to come will likely yield additional information about the memos themselves and about the “officials” who are now familiar with them.  We’ll keep you posted as it all develops.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos