New Lawsuits Could Determine Not Only The Legal Status Of The Comey Memos But The Legality of Comey’s Actions

200px-Cnn.svg440px-Comey-FBI-PortraitLast week, CNN filed a lawsuit seeking the famous Comey memos from the FBI, which is discussed in the column below in The Hill newspaper.  The lawsuit could produce an official characterization of the status of the memos as either personal or FBI information.  After this column was posted, Judicial Watch also filed a lawsuit seeking the memos which it maintained were the property of the FBI.  The lawsuit states “Upon learning that records have been unlawfully removed from the FBI, you then are required to initiate action through the Attorney General for the recovery of records.”  These lawsuits could prove vindicating or implicating for Comey. [Update: other news organizations have added additional lawsuits]

Here is the column:

The lawsuit this week by CNN seeking the memoranda of former FBI director James Comey created something of a curiosity for viewers. In court, CNN is arguing that the memos are “FBI records” and should be turned over under the Freedom of Information Act (FOIA). On the air, CNN legal and political analysts have been insisting that these memos belong to Comey and are akin to his personal diary. The irony is that the CNN litigation could answer some of the underlying questions over the status of the memos and whether Comey was a leaker in the unauthorized dissemination of FBI information.

On Thursday, CNN filed for the release of the documents as “FBI records” in “unredacted” form and “without further delay.” There are two copies of these memos in FBI possession this week. First were the original versions created by Comey while he was FBI director. The memos were prepared on an FBI computer during the course of Comey’s investigation of the Russian matter. The memos were made in direct relation to the ongoing investigation and shared with his top staff as potentially relevant to the investigation. Second, there are the copies of the memos that were collected from Comey’s friend, Columbia Professor Daniel Richman, who received the memos from Comey to leak to the media.

I have previously written how these memos fit the broad definition of “FBI information” contained in federal rules and regulations. As such, the transfer of the memos to Richman and the sharing of the information with the media constituted a serious violation of legal and professional standards by Comey. Tasked with finding leakers, Comey became a leaker himself in order to strike back at the president.

Worse yet, Comey was fully aware that these memos would inevitably be collected as evidence by both the congressional committee and any special counsel — in addition to his own former team of investigators. Indeed, Comey was aware that he was being called to testify and could have shared these memos in a legal and professional way. Instead, he chose to use a friend to leak the memos early to the media.

CNN analysts came out immediately after Comey’s admission in his testimony, saying that first, this was not a leak because leaks are only classified (something I previously explained as entirely and facially incorrect), and second, these memos were like personal diaries that Comey had a right to disclose. Former FBI special agent Asha Rangappa on CNN balked at the suggestion of any leak as absurd because these were just Comey’s “personal recollections” like a personal diary. Others referred to the memos as being a private record or account of a private conversation.

By filing the lawsuit, CNN could force the FBI to legally identify the status of the memos. There should be multiple copies of these memos unless Comey deleted copies on his FBI computers (itself a potential violation of federal law). Each copy could be addressed in any FOIA production.

previously noted that Comey’s suggestion that these memos belonged to him (and thus could be leaked to the media) would likely not pass muster with folks at the FBI who have to make such decisions. Indeed, it would not have passed muster under FBI Director James Comey. Leakers were pursued under his tenure as FBI director, and many of those investigated may be rather perturbed by the image of someone who went from chief law enforcer to high-profile leaker when it was to his advantage.

The FBI restricts material generated in relation to investigations “FBI information.” The agreement Comey presumably signed clearly encompassed these memos as FBI material and he swore to comply with their bar on “unauthorized disclosure” — not just during his time at the FBI but “following termination of such employment.”

FBI rules cover any “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” He is not at liberty to remove such documents after termination by the FBI, let alone leak them to the media. He also agreed that violation would terminate his security clearance and subject him to both criminal and civil liability, including injunctive relief.

Weeks ago, I raised the issue of whether the FBI would have turned over these documents under FOIA if they were demanded by the media. I expressed considerable doubt over such a notion as someone who has dealt with FOIA fights with the FBI for years.

The FBI would likely deny the requests under a number of exceptions. First, it could object that the documents were “related solely to the internal personnel rules and practices of an agency,” under 5 U.S.C. § 552(b)(2). Second, they could claim that they fell under  documents which are “records or information compiled for law enforcement purposes,” (assuming they fell into one or more of six categories), under 5 U.S.C. § 552(b)(7). Third, and most importantly, they would also likely claim that the documents were “inter-agency or intra-agency memorandum or letters” which would be privileged in civil litigation, under 5 U.S.C. § 552(b)(5).

The FBI specifically would rely on the deliberative process privilege in making such a finding. It has insisted that the release of such information is harmful to “the integrity of agency decision-making by encouraging both full and frank discussions of policy proposals and to prevent premature disclosure of policies under review.”

Any of these claims would seriously undermine Comey’s suggestion (and those of many at CNN) that these were his personal notes and that he was free to leak them to the media.

It is possible that the FBI could dodge this thorny issue by releasing copies received from Richman or finding a way to finesse the status of the original memos. However, the lawsuit could prove highly illuminating on not just the legal status of the memos but the lawfulness of Comey’s conduct. He could be vindicated or implicated by the results. On one end of the spectrum is the suggestion by many that these memos are like diary entries by Comey.

As I have said before, that seems rather hard to square and treats the account like some eHarmony date gone bad (with awkward dinners and uncomfortable silences). On the other end of the spectrum are field reports, often called 302s, where agents memorialize meetings with potential witnesses or important discoveries. This clearly falls somewhere in the middle.

Of course, if these documents were viewed as FBI information at their creation, there remains the question on who would take the lead in investigating Comey as a possible leaker. The Justice Department as cut Robert Mueller a great berth. Yet, Comey is now a witness for Mueller — as the recent leak confirmed by telling the media that Trump is now being investigated for obstruction. It is not clear if Mueller would view Comey’s possible violations are falling within the scope of his mandate or whether he would be willing to investigate his own key witness in the obstruction investigation.

Ironically, Comey may have preferred for this to remain somewhere in the middle — undefined and uncertain. CNN could have just taken a critical step toward removing that ambiguity by forcing the FBI to classify the status of the documents. It is the type of clarity that could prove exceptionally helpful or harmful for James Comey.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.

60 thoughts on “New Lawsuits Could Determine Not Only The Legal Status Of The Comey Memos But The Legality of Comey’s Actions”

  1. “When you strike at a king, you must kill him.”

    ― Ralph Waldo Emerson


    Comey’s strike was a deliberate “sting” operation attempting to entrap President Trump

    with “notes” as “evidence.”

    Comey, a disgruntled employee in the same vein of as “Deep Throat,” the jilted FBI officer Mark Felt,

    knew his removal was inevitable.

    Comey sealed his own fate with his bizarre behavior during the election when

    he alienated both sides.

    Comey knew and stated that President Trump was “hoping” and suggesting, not directing or issuing a

    direct order, as AG Lynch did when she committed “obstruction” by ordering Comey to characterize Hillary

    Clinton’s e-mail scandal as a “matter” not an “criminal investigation.”

    The probative value of Comey’s notes was definitively impeached when Comey went weeks without

    reporting a suspected violation of law to his superiors and stated that the President’s acts did not constitute

    “obstruction of justice” and if the President’s acts were “obstruction,” Comey committed the crime of

    “obstruction” himself by failing to report it.


    “When you strike at a king, you must kill him.”

    Me thinks Comey failed.

  2. Daniel C. Richman disclosed information from an official source. He is just as legally culpable as Comey. The people behind the scenes should not be able to hide in the background as they are often essential enablers in crime of this type. The whole cabal should be exposed.

  3. “New Lawsuits Could Determine Not Only The Legal Status

    Of The Comey Memos But The Legality of Comey’s Actions”

    Discovery will reveal that ALL ROADS LEAD TO OBAMA.

    Lynch Road
    Hillary Road
    Huma Road
    Rice Road
    Farkas Road
    Brennan Road
    Yates Road
    Flynn Road
    Rich Road
    Lerner Road
    Holder Road

  4. Two unwarranted hit men sent to remove Republicans:

    James Hodgkinson

    Robert Mueller

        1. “There’s some real concerns with what Mueller’s doing,

          he’s obviously got the long knife out for the president,”

          Santorum told host Jake Tapper Sunday morning.

  5. A “conservative” voice on Face The Nation today said that there is no evidence of some Russian collusion which affected our election. I think he is right. Someone on the blog here please point out an issue in the election which caused voters to go for Trump. Or for Hillary. She lost because of her ugly photos constantly posted on blogs like this blog. Y’all know the photo I am talking about. The one where she is staring down at her Dumbphone with her sunglasses on and that stern mistress look on her face. It is like she has heard that Bill was at the cathouse. But do any of you have an idea of a notion of an issue which the Russians promoted?

    Warren Zevon: How was I to know? She was with the Russians too? da da da dant da da na nat ya.

  6. Unfortunately this is where the law ingests itself, self gratifies, and generally gives purpose to Shakespeare’s lines. Comey released his memos that recorded the meetings he had with Trump. This information known to the people of the US is in the best interests of the people of the US. Out of one side of a lawyer’s mouth it is illegal; out of the other side, it is legal. It depends on who is paying. The hypocrisy of right wing nuts attacking Comey for what ever reasons for his transparency after relentlessly calling for a draining of the swamp, a cleaning of the swamp, etc, is typical of some on this blog. Turley may be stoking the embers, trying to get an altercation going, that makes this blog interesting some times; or he may also be hypocritical. Comey did the US a service. The legal aspects are so much jerking off by so many lawyers. For an example of how self gratified and stupid at the same time interpretation of the law can be, just revisit Scalia giving individual constitutional rights to the corporation of oligarchs. Scalia moved us one step closer to dicatatorship. This has noting to do with the law, the intent of the law, or the intent of the founding fathers. That is just another lawyer jerking off.

    1. Isaac,….
      Until Comey was fired, he was widely reviled by both Democrats and Republicans.
      If your memory is that short, go back and read contemporaneous articles and opinion pieces about Comey before he was fired.
      His reputation and the number of those now defending Comey have both soared among Democrats now that he is at odds with Trump.
      You and others who have now adopted Comey as their mascot aren’t really in a position to be pontificating about “the hypocrisy of right wing nuts”.
      I don’t think that anyone is going to come out of these investigations looking very good.
      But if you really think “they have nothing to do with the law, the intent of the law”, and it’s just about lawyers “jerking off”, you should probably advocate stopping all aspects of all investigations right now.
      Or if you prefer to selectively dismiss only certain aspects of the investigations as lawyers “jerking off”, then you’re demonstrating your own hypocrisy.

      1. tnash

        So you really think that there is only one way these things can be legally argued? My memory works well enough to remind me of the arguments by lawyers, reading the same laws, going in directly opposite directions, depending on political inclinations. Scalia defined this versatility better than any.

        Comey has been adopted by those on the right and the left. What Comey has done, regardless of his popularity or lack thereof, is to illustrate what a buffoon we have for a President. Enough of what Comey has said has been corroborated by Trump himself in his ‘ways’, as well as other persons.

        What this all comes down to is not the legal positions of Comey’s memos making it public but just who we have in the oval office. The present occupant is in no way qualified to lead this country, not presidential material, an insecure megalomaniac. Whether Comey is a hero or a villain to whomever, he has done this country a great service, making the offices transparent. The only leaks we need to worry about are those in Trump’s head.

        1. Isaac,…
          My point was that in an expanding, wide-open investigation you can’t pick and chose valid areas of investigation.
          Comey is now likely a key part of the Mueller and Congressional investigations.
          I understand why you’d like to dismiss any awkward questions about Comey’s memos, the timing of their release, etc.
          When you dismiss this aspect of the investigation as lawyers “jerking off”, that isn’t a matter of how evidence “can be legally argued”.
          It’s a way of saying “look only at certain evidence, certain facts” so as not affect your desired outcome.
          I know that for you this all comes down to “just who we have in the oval office”.
          That being your overriding concern and interest, I wouldn’t expect you to try to objectively evaluate evidence, or call for an even-handed investigation.

          1. tnash

            I am not for selective investigating but for complete transparency. Not allowing Comey’s memos-memos to himself-is not transparency. Not admitting and presenting any and all other info is also not transparency. My overriding concern is, yes, who we have in the oval office. However, the risk involved is that this buffoon will be exonerated by Mueller’s investigation and the presently pustulated ego will grow even more obnoxious, noxious, toxic, dangerous, however one perceives. So, on that point, there should be nothing that is done in our government that should carry any privilege. Everything, except that which is ascertained as being a security issue, by proper bi partisan committees, should be open. Imagine the quality of leadership if it was accompanied by accountability. Trump has one quality that no previous occupant of the oval office has had, he is immune to himself. Trump is a walking, talking, lie in wait of its use for whatever purpose, sometimes no purpose at all. So, what has Trump to fear when he will simply tweet garbage and his supporters will hear what they want to hear, read what they want to read, and see what they want to see.

            1. Isaac,…
              I didn’t suggest “not allowing Comey’s memos”.
              As far as I know, nobody has suggested that.
              You’ve made it clear enough that your “overriding concern is that Trump ” will be exonerated by Mueller’s investigation”.
              I realize that exoneration may dash the hopes you and others have to overturn the election results, but you may have to accept that if Trump is cleared by the investigation, he stays on as President.

              1. tnash

                When you drop all the legal BS and who did what and what precedents were set it all comes down to what sort of person is in the oval office. Thus far it seems that if ever there was a ‘rain man’ it is Trump. The incessant whining, responding to nothings, tweet bickering, lying, contradicting, blustering, seeking adulation, etc illustrates not Presidential material but a perverse result of our dysfunctional system. It is one thing to take a candidate who seeks to do his idea of good and becomes tarnished en route but entirely another to bring in a stained and incompetent person to then become tarnished.

                Nothing would be better than to see Trump actually pull off some moves that would be good for the country. But, so far he has done next to nothing, taken credit for good stuff that was initiated well before he came on the seen and constantly whining and campaigning against the very people who are in the business of running the government. What is most sad is that Trump has let slip some of the solutions to many of our problems: he stated that America needs a single payer health care insurance system as is found in Canada, he stated that global corporations must contribute more and keep high paying jobs in the US, and a few other things that were on the minds of most people. But, Trump doesn’t have the balls to forge ahead with the only viable health care insurance solution; Trump is big Pharma, the insurance cartel, etc; he is a global oligarch so he won’t be working that angle; and has no idea how to manage the government. Trump came into power under a banner of taking on the establishment. But Trump is the worst part of the establishment so it is impossible for him to do anything that will aid the lower and middle classes at the expense of the oligarchs and one percent at the top. Trump’s making money hand over fist. His pals are making money hand over fist. What earthly reason would he have for doing what he promised? This is one situation where I would love to be proved wrong.

    2. “Wapner on in 5 minutes..of course I definitely need to watch Wapner..definitely.”

    3. ” Scalia moved us one step closer to dictatorship.”

      You are delusional and incoherent.

      Under the constitutional right to private property, taxation only funds security and infrastructure.

      For decades, the seizure of private property (i.e. money) has been effected to “redistribute wealth” and the nullification of freedoms has been effected to compel “social engineering.” The imposition of the principles of the Communist Manifesto is the very definition of dictatorship.

      Obviously welfare, affirmative action, social services, public worker unions and all other forms of “central planning,” “redistribution of wealth” and “social engineering” are unconstitutional as the Founders severely limited government (i.e. the Subject of the Sovereign) and provided every conceivable freedom (emphasis on the 9th amendment) and right to the People (the Sovereign) including the right to private property which, by definition, means one man’s property cannot be confiscated and transferred to another man as direct welfare payments or indirectly as jobs in or contracts with a man’s private business, or matriculation in a man’s private university.

      Redistribution and social engineering as welfare and affirmative action constitute the dictatorship of the minority. Under the Constitution, the majority rules within its parameters.

      Tytler’s Dictatorship” is what has happened to America.

      “A democracy cannot exist as a permanent form of government. It can only exist until the people discover they can vote themselves largess out of the public treasury. From that moment on, the majority always votes for the canidate promising the most benefits from the public treasury, with the result that democracy always collapses over a loose fiscal policy–to be followed by a dictatorship.”

      ― Alexander Fraser Tytler

      To be sure, the American Founders established a restricted-vote republic,

      not a one man, one vote democracy, as the criteria to be met by voters

      were Male, European, 21 with 50 lbs. Sterling or 50 acres.

      The Founders knew that the “poor” would sell their votes,

      ergo, “Tytler’s Dictatorship.”

  7. Sheryl Attkisson has been fight for records of her computer being hacked by the govt. when she was a CBS reporter investigating Fast and Furious. Her request was finally decided. She received records where virtually every word was redacted. I predict the FBI Swamp will let the former FBI Swamp Chief off the hook and say these were his records, a blatant lie to help him..and Jeffrey Toobin, a ham n’ egger if ever there was one. I would LOVE to see Toobin and JT debate.

  8. Well, I for one, would take Comey’s word, over the “Orange One’s ” ANY DAY.!!
    A more credible witness, I have never seen. No stalling for Hill…or flitting through pages for clarification.!!

    I could be wrong, but…I understood he wrote THE FIRST…MEMO , to himself, immediately following the meeting. The others, I understood to be not written on the FBI device.

    Obstruction of Justice, and the potential for it, by a President of the U.S. ( who thinks he was just elected Christ Almighty ) and not just President, needs to be investigated. That behavior is Trump, to a ” T”. He CAN DO ANYTHING….too big for his boots….His ego, will take him down.

    I am noticing, our venerable J.T. Is liking trying to take Comey DOWN……

    1. Guinness,..
      “Obstruction of justice, and the potential for it, by a President of the U.S…
      ..needs to be investigated”.
      It also needs to be reported, and it looks like Comey only expressed his concerns and released the memos AFTER he was fired.
      If one believes that the Comey memos are an accurate summary of the conversation(s) and that they merit an investigation re the obstruction of justice charges, then the timing of the memos’ release should raise additional questions.

    2. Your testimony is irrefutably impeached by Her Highness, Queen Hillary

      who presented her loathing of James Comey.

      To wit,

      Hillary Clinton on Tuesday “…went on to blame FBI Director James Comey…for aiding Republican rival Donald Trump’s ascension to the presidency.

      Clinton specifically cited the letter from Comey late in the campaign saying agents were looking into possible new information related to Clinton’s secret, homebrewed computer server.

      “I was on the way to winning until a combination of Jim Comey’s letter…raised doubts in the minds of people who were inclined to vote for me but were scared off,” Clinton said at the Women for Women International Conference.

      She added: “If the election were on October 27, I’d be your president.”

  9. It’s my understanding that Richman has a copy of only one memo, not all of them, with one of the committees of Congress already requesting it. It is also my understanding that all of the memos (originals or copies) have been turned over to the special prosecutor. Since they are possibly evidence in the on-going investigations, I don’t expect them to be turned over soon. Still, it will be interesting to watch this minor sub-plot as it plays out.

    1. Richman gave the memos, requested by Congress, to the FBI. That’s rich, considering he leaked the memos for the FBI. There is a lot of gaming and politics going on here. Not to mention leaking, contempt of Congress and other crimes.

  10. The focus on the status of the memos ignores the far more important content of the memos and the Presidenr’s statements reflected in the memos. Wherher Comey gets a slap on the wrist for leaking his own memos is of no consequence at this point.

    1. Such an in-depth analysis and argument! Thanks for just destroying Turley’s case, and so easily….

      /sarc off

      Not quite the Captain of the Harvard Debate Team, I see.

  11. Let’s see, you’re the head of the FBI, and you have a meeting with the President. And you write yourself some memos to “cover your a$$”. Then, before you get fired, you leak the memos to a buddy so that he can leak it to the press. And then, after you get fired the memos are somewhere in Legal LaLa Land, and folks are opining that the documents are Comey’s personal info and not related to his former job.

    Hmmm. That sounds a lot like Hillary Clinton who believed she had a right to set up her own personal email server in the tech’s bathroom, route all her email both business and personal to it, and then wipe any info that might prove embarrassing to her.

    Meanwhile, the Democrats are looking for Boris and Natasha in dark corners. Where is Bullwinkle when you need him???

    Squeeky Fromm
    Girl Reporter

    1. No, Bottle Blondie: you still don’t get it –do you? Therefore, I’ll simplify it for you. There’s a chronic liar with mental illness occupying our White House. Because of his pattern of lying about anything, especially anything that makes him look bad, anyone taking a private meeting with the Liar In Chief must take steps to protect himself. That’s what Comey did, as he testified. You are missing the point: all of this is necessary because Chump is a pathological liar.

        1. Chump demanded a private meeting, so he could secure a loyalty pledge, but still deny demanding it. When Comey wouldn’t make the pledge, he was history, but Chump wanted to still be able to lie about demanding personal loyalty.

          For the life of me I cannot comprehend how people can treat the mental case in chief like a legitimate President.

          1. “For the life of me I cannot comprehend how people can treat the mental case in chief like a legitimate President.”

            We treat him like a legitimate president –because he is. What part of the election did you miss?

            For the life of me I cannot comprehend how people can think putting Hillary (and Bill) Clinton (and their family crime syndicate) back into the White House was remotely a better idea. Not in this lifetime was Hillary ever going to be president. Some of us actually knew this all along. Trump won b/c Hillary is such a sick, crooked, incompetent scum that she blew every possible advantage she had over Trump. You have a problem with Trump, then talk to the corrupt DNC and the Democratic party who are still screwing over their voters. Trump is our legally elected President. He’s IT for four years. And then you can vote him out. Deal with it, Nasty.

      1. You do realize that your belief is called an OPINION, as opposed to a fact, don’t you??? Because some of you people seem to think whatever foolishness you fall for, after being brainwashed by the MSM and various leftist echo chambers, constitutes some sort of metaphysical reality. I say that because sooo many of you seem surprised when other people don’t believe the same way you do. You seem to feel that the mere fact that you tell us what you think should constitute a Reality for us, and not just another dumb opinion from a partisan shill.

        Squeeky Fromm
        Girl Reporter

  12. Our doj sucks , otherwise we would have had clintons behind the bars with coney and lynch

    1. If I can re-con your words a bit. The Clintons sucked: Bill for Monica and Hillary for Clyde. Comey is at the bar and waiting to be lynched. No Lorrettas on the scene. Or the screen. Regarding Hillary and Clyde, that is Second Cousin Clyde.

      1. It is Sunday morning. It is time for a good legal article on dogs.
        As for Comey:

        Comey, Comey bo boney.
        Banana fanna fo foamey.
        Fee fi Moe, Larry and Cheese.
        Yuk, Yuk, Yuk .

  13. It is getting really dicey–this is as I caught excerpts of Oliver Stone’s the Putin Interviews that saw him strongly refute the allegations making the rounds right now. Unless Professor Turley provides further guidance, Russia is not “per se” the story anymore…it is the President’s attempt to interfere and intimidate that is the focus right now. It is not the most amenable way to run a Government.

    On a very crucial side note, wanted to wish all in the JT Community (including Professor Turley) a Happy Fathers’ Day…..

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