Comey Supporters Raise A Familiar Clintonesque Defense: The Memos Had No Markings Of Classification

440px-Comey-FBI-PortraitHillary_Clinton_Testimony_to_House_Select_Committee_on_BenghaziYesterday, I posted a column in the Hill detailing how the media and various legal experts have worked mightily to avoid the fact that former FBI Director James Comey (1) leaked his memos to the media, (2) the memos were presumptively government material, and (3) the memos were likely classified and/or privileged under long-standing FBI rules.  As I said in the column and in earlier columns, none of this takes away from the underlying allegations or the importance of the investigation into possible obstruction of justice.  However, the response to the recent Senate Homeland Security majority report and the Hill Newspaper story was precisely what the column discussed: a concerted effort to deny any wrongdoing by Comey (who has assumed the position of an immaculate hero in this political narrative).  One such denial of any wrongdoing came from Comey’s friend Columbia Law Professor Daniel Richman.  Professor Richman invoked a familiar defense: the memos he was given had no classification markings – the very same defense made by Hillary Clinton and rejected by then FBI Director James Comey.

As previously discussed, an article in The Hill reported that “more than half” of Comey’s leaked memos of his conversations with Donald Trump contained classified information. It is not clear if the memos leaked to by media by Comey through Richman contained classified or privileged information, though I believe that likelihood is high that a normal classification review would at a minimum classify conversations with the President and his FBI Director on a major investigation as “confidential.” However, it is not clear what memos have been determined to be classified or whether any have been also determined to be privileged under FOIA categories, as previously discussed.

Richman insisted that Comey could not have violated FBI protocol because none of the memos were marked as classified. Clinton adopted various lines of defense from there was no classified information in the emails (as Comey did) to “”I never received nor sent any material that was marked classified.” That defense was rejected by Comey when he stated publicly that there was classified information in the Clinton emails and that she and her staff “were extremely careless” in handling such information. Comey also said “any reasonable person in Secretary Clinton’s position, or in the position of those with whom she was corresponding about those matters, should have known that an unclassified system was no place for that conversation.” The same could be said for conversations with a President about an ongoing high-level national security investigation.   Comey decried how the use of emails to transmit such information was “generally lacking in the kind of care for classified information that is found elsewhere in the government.”

Comey’s point, which many of us were saying for months during the Clinton scandal, is that markings on classified documents are not determinative. Officials are expected to have material reviewed for classification and not assume that unmarked documents are by definition unclassified. What is clear is that, if half of these memos contained classified information and Comey removed them, he was in clear violation of federal law and regulations.

The other problem with Richman’s defense is that it is unlikely that memos would have classification markings because Comey did not apparently subject the memos to classification review. Indeed Comey said that he wrote these memos to evade such classification review. Comey testified in the Senate that “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…” It is indeed hard but it is the system that Comey enforced while Director in requiring classification review over documents.

Finally, Richman insisted that “No memo was passed on to the Times.” However, even if this were material, he ignores the fact that the memos were passed to him by Comey. He is not entitled to received privileged or classified or FBI information. All FBI agents sign a statement affirming that “all information acquired by me in connection with my official duties with the FBI and all official material to which I have access remain the property of the United States of America” and that an agent “will not reveal, by any means, any information or material from or related to FBI files or any other information acquired by virtue of my official employment to any unauthorized recipient without prior official written authorization by the FBI.”

The FBI has now reportedly confirmed that the memos were indeed government property. The Hill, quoting “officials familiar with the documents,” has reported that the FBI has told the Congress that these memos are indeed government documents.

Comey clearly leaked non-public information. While he claimed that his memo did not contain classified information, they reportedly did. The fact that he used a surrogate like Richman to leak to the media would not change the analysis. To use his own words, his actions at best showed extreme carelessness in violating the very rules that he imposed on others.

55 thoughts on “Comey Supporters Raise A Familiar Clintonesque Defense: The Memos Had No Markings Of Classification”

  1. Tired of the Trump support, JT. I can only believe that you think this equanimity will help with you Supreme Court run.

  2. I don’t like that photo of Hillary which JT always posts. I think it was promoted by the Russians. Putin picked it out of the lineup of photos.

  3. A good topic for the blog would be : sufficiency of evidence in a circumstantial evidence case. Jackson v. Virginia was the Supreme Court case.

  4. Comey: ” an immaculate hero” love that description by Prof Turley.

    Comey is a total conniver – why else would he allow Clinton’s emails to be examined by an outside agency rather than the FBI? And how about that lap top of hers that Bill insisted he mailed?

    Corrupt – we are SO fortunate not to have her as our prez.

  5. I voted for Hillary. How was I to know? That she was with the Russians too!

  6. I think JB Sessions should resign and then Trump could pick a new Attorney General, someone like Trey Gowdy just to screw with this dream team of righteous legal charlatans.

  7. Let’s try this again:

    Thomas Drake

    ICYMI: #FBI not always the good guy. Deeper truths of their own black hat & bag history pre & post 9/11 not kind.…
    5:53 AM – 11 Jul 2017

    “Comey firing justly knocks FBI off its pedestal”

    “The FBI director’s demise provides an excellent opportunity to subject the agency to the accountability everybody else has to live with.”

      1. Just the end of the USA Today opinion piece:

        “And then there are the other scandals — the perpetual false testimony from the FBI crime lab, its use of National Security Letters and other surveillance tools to illegally vacuum up Americans’ personal info, its whitewashing of every shooting by an FBI agent between 1993 and 2011, and its operation of dozens of child porn websites (another entrapment operation gone awry).

        “The FBI’s power has rarely been effectively curbed by either Congress or federal courts. In 1971, House Majority Leader Hale Boggs declared that the bureau’s power terrified Capitol Hill: “Our very fear of speaking out (against the FBI) has watered the roots and hastened the growth of a vine of tyranny. … Our society … cannot survive a planned and programmed fear of its own government bureaus and agencies.”
        Boggs vindicated a 1924 American Civil Liberties Union report warning that the FBI had become “a secret police system of a political character” — a charge that supporters of both Hillary Clinton and Donald Trump would have alternatively cheered last year.

        “If Trump fired Comey to throttle an investigation into Trump administration criminality, that is an impeachable offense. Otherwise, Comey’s fall provides an excellent opportunity to take the FBI off its pedestal and place it where it belongs — under the law.

        “It is time to cease venerating a federal agency whose abuses have perennially menaced Americans’ constitutional rights.”

  8. Comments are not appearing in the order that they are being posted?

    1. Darren probably just changed the blog’s configuration back to what it had been for years — until the last two weeks or so — which is older comments first, newer comments at the end, which abides by the time honored tradition of reading down and also keeps the chronological order of posts.

      I hope so, at least.

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