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. Thomas Drake
    @Thomas_Drake1

    ICYMI: #FBI not always the good guy. Deeper truths of their own black hat & bag history pre & post 9/11 not kind. usatoday.com/story/opinion/…
    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.”

  2. The “Comey Defense” is his best friend and fellow former FBI Director, Special Prosecutor Robert Mueller, in conjunction with the Hillary donors Mueller has hired; something akin to the Warren Commission which “investigated” the JFK assassination then wrote an epic novel entitled “The Warren Report.”

  3. According to Newsweek today:

    “When Fox & Friends—President Donald Trump’s favorite morning show—pushed a story Monday about former FBI Director James Comey leaking classified information, the president was quick to tweet about it.

    ‘A brand new bombshell report accuses Comey of putting our national security at risk, according to The Hill the FBI director’s personal memos detailing private conversations with President Trump contained top secret information,’ a Fox host said in a video Trump retweeted.

    The president followed that retweet with a post of his own, reading, ‘James Comey leaked CLASSIFIED INFORMATION to the media. That is so illegal!’

    But as The Washington Post pointed out Monday, the Fox & Friends report was misleading. The Post wrote that while there were reportedly seven total Comey memos, just four apparently contained information that was considered “secret” or “confidential”—not “top secret”—and there is no evidence the memo the former FBI director sent to a friend contained classified information. Comey indicated under oath the memo he shared did not have classified information, and his friend told CNN Monday that “no memo was given to me that was marked ‘classified.'”

    Fox & Friends acknowledged the mistake on Tuesday in a very brief segment; it did not apologize.

    ‘Yesterday on this program we aired and tweeted this story saying former FBI Director James Comey leaked memos containing top secret information,’ host Steve Doocy said. ‘We were mistaken in that. According to a report, half of the memos contained information classified at the ‘secret’ or ‘confidential’ level not ‘top secret.’ And the markings of the government documents in which Mr. Comey leaked are at this point unclear. Just wanted to straighten that out’.”

    So there.

      1. Yesterday on Fox and Friends we stated OJ is accused of murdering and dismembering both Nicole Brown-Simpson and Ronald Goldman. We were mistaken, while Ms. Brown-Simpson’s was nearly decapitated, she and Mr. Goldman were not dismembered. Just wanted to straighten that out.

        There, that is so much better.

      2. There was a problem with Taxi service in Wash DC “ Johnny Cab” in Total Recall. I want my money back. Enjoy the ride.

      3. If a document contains information gleaned from a classified document it, too, is classified. In fact, if someone realized this, then Classified should be added to the original document. This is a toughie for people, but is the proper way to notify another reader of its classification. I haven’t read every comment completely, but if I am repeating someone else’s information, my apologies.

        1. Sandi, just use a little bit of common sense Hilary was Secretary of State and wanted to be President. At the very least she should understand the most basic security procedures. No government email was supposed to be on her private server. As an employee of the American public she had no right to destroy any official document. She lied to Congress, destroyed emails and then tried to destroy the hard drive with bleach.That is not a person who should be President, Secretary of State or in any important position what so ever. If she applied for a job at the FBI with these credentials she would be denied the job and considered a security risk.

          Get real!

  4. JT, what are you doing man? Even “FOXNEWS” have corrected their report on the memo’s Comey leaked to his friend.

  5. Donald Trump, Jr. Emails. If he had kept his trap shut and let the NYT publish the emails first, team Trump could have screamed fake news from failing NYT.

    Now, it IS possible that team Trump has made up these emails themselves to create their own fake news. But, that will be found out soon enough.

    You don’t do oppo research with a government that is our primary adversary and is an oligarchy run by the mafia.

    Papa Trump tweeted this morning about helping LA get the Olympics. In 2024.
    LALALALALALALALALALA – fingers in ears.

    1. Then where did the Steele/Fusion dossier intel come from? They said it came from UK and Russian government sources. What’s the difference? That it benefited Hillary?

      1. T Bob,…
        The difference was the focus and emphasis of the media.
        The bulk of articles presented this Russian Dossier as evidence that Russia “had the goods” on Trump, that they could blackmail him.
        If you search REALLY hard, you might find some mention here and there that opposition research from Trump’s opponents funded Steele’s project.
        It’s not clear at what point the FBI considered paying Steele for the dossier.
        I don’t think the FBI followed through.
        So a British spy compiled a dirt-dishing dossier, using Russian sources.
        Those are known facts.
        The accusation that the Trump camp MAY have communicated with Russians about opposition research is now crowding the headlines.
        In one case, the target was Trump, the authors were foreign nationals, and there was in fact a completed dossier.
        Those who initiated and funded that dossier were not taken to task by the media.
        Allegations that the Trump camp might have considered the same thing have been treated differently.

        1. So we don’t yet know who actually paid for the Fusion GPS dossier because the firm is refusing to cooperate with Congressional investigations, though we can assume it was Democrat-funded. And we know the FBI then used that Democrat-funded intel gathered from both UK and Russian government sources, in order to justify opening an investigation into Trump and his campaign?

          1. TBob,…
            What I’ve read is Steele/Fusion received payment from some of Trump’s primary opponents, as well as the Democratic Party.
            I don’t know what info the FBI got from the dossier, or how they may have used it.
            If there is a genuine concern about foreign sources compiling opposition,research, the Steele/ Russia Dossier would warrant an aggressive investigation.
            If that “concern” is selective, applied to one side or the other for political advantage, it plays out differently.
            That’s pretty hard to miss with respect to media coverage.

  6. So, Trump can ‘mess’ himself in public through lies, tweets, lying tweets, and pretty much just his whole existence but when Comey ‘leaks’ so called private stuff in light of this monumental liar and fraud, Trump, it’s a bad thing. Well so be it. Crucify Comey but if done, then Trump should do time, and not in the White House.

    1. “Trump should do time, and not in the White House.”

      Please explain for what?

  7. Problem with your whole theory is that the memos aren’t clearly classified. That someone in the FBI now claims they are isn’t the final word on the nature of the documents. Comey was dealing with a chronic, pathological liar, and was creating a record because he foresaw the need for it. Chump’s demand for a personal pledge of loyalty was wrong, but documenting this demand did not create a classified or even confidential record not subject to disclosure. People in the FBI know what happens to those who take a position contrary to Chump.

    That said, with the bombshell reveal that last summer, Little Donnie accepted a meeting with a Russian lawyer who told him in advance that she might have information damaging to the Clinton campaign, but not only didn’t disclose it, but has changed his story a couple of times, all you have to write about today is Comey?

    I’m trying to decide what color of jumpsuit would look best on Little Donnie–red, orange, or maybe, pink, if Sheriff Arpaio has any left over. Also, I can’t wait to see his prison hairdo.

      1. She snorts the Kool-Aid sans water. Grape is her favorite flavor, followed by box Chardonnay,

    1. Donald, Jr. is a private citizen, not on the government payroll. I’m sure Hillary’s campaign spoke to people claiming knowledge of Trump, Sr. it is called politics!

  8. Back to Comey, I see. Your masters at The Hill must be getting really nervous about the news coming out about Donald Jr.’s emails.

    1. Not his “masters”, his clients, House Republicans. The Obamacare appeal from the ruling in favor of the House Republicans who Turley represents has been put on hold, pending legislative efforts to repeal the law that was the subject of the lawsuit. Looks like Turley is going to have to dust off his computer and help write a brief defending the ruling below.

      Emails confirm Russia’s desire and offer to assist Trump. Most of the comments here will be of the Sgt. Schultz variety: “I see nothingk, I hear nothingk…” (Go watch re-runs of Hogan’s Heroes, for anyone not familiar with Sgt. Schultz. Schultz is the embodiment of most current Republican officeholders and the current leadership of the Democratic party, for different reasons.)

    1. Squeeks, if I weren’t a misogynist, I would think you were absolutely hilarious and effective.

  9. This is the hero of the msm , just like she was its favorite! Anyone who respects msm and it’s filth really is not any better. So called journalists should be the laughing stock of an advanced civilization but on our planet some still don’t see their true worth , that is worthless !

  10. I quote the esteemed professor from some other place, can’t quite remember where the quote comes from:

    “I tend to view these things through the lens of a criminal defense attorney.”

    Clearly, Comey should not hire the esteemed professor as Comey’s own defense counsel.

  11. Some poor Schmuk will be in court today or tomorrow stand before a judge and give a better defense then these two and the judge will find him guilty with jail time.
    These two deal with the nations security, act like Billy the Boob when they break the law and go off in the sunset with pensions, healthcare and big money speaking engagements.
    When the hades will people wake up?

    1. J Pismo,
      When the real world is more painful than this alternative reality, then I cannot fault the progressive left for choosing the blue pill.

  12. The papers didn’t need classification markings. If anybody should have know this it was Comey. FBI agents are told that if a document has no classification marking it should be considered as classified until proven otherwise. Even a layman knows that classified documents can easily be photocopied without the classification markings. If anybody should have been fully aware of this it was Comey, but he had other fish to fry. And he had the nerve to say that Clinton’s documents that were not marked as classified could have been classified, but then tried to use the excuse that the documents he handled were not marked classified. How much more underhanded and scurrilous can anyone be!

  13. Those classified HRC emails. Cut out the classification headers, copy, paste & send.

    I’m studying how hackers from Nigeria clone Facebook users & set up fake accounts. They use real names & photos of victims. Until you find the out IP address of fake FB accounts.

  14. Comey has proven over and over again that he’s a snake. He was a snake regarding Clinton’s emails and he’s a snake regarding the documents he handled. He should have been fired from the FBI, it’s too bad that he wasn’t fired right after the Clinton debacle. I suspect Trump did demand that Comey stop the investigation into the Trump administration’s collusion with the Russians. Everything regarding Comey shows that neither he nor the Trump adninistration acted decently and morally in this sorry situation. It looks to me as if Hillary Clinton was the innocent victim of Comey’s manipulations. The whole situation is filthy and stinks to high heaven. I, for one, don’t trust a word Comey says.

    1. “I suspect Trump did demand that Comey stop the investigation into the Trump administration’s collusion with the Russians.”

      On what basis do you make such a comment? There is none except in your dreams.

      “It looks to me as if Hillary Clinton was the innocent victim of Comey’s manipulations.”

      Did Clinton use an appropriate server for her emails?
      Did Clinton release all her emails?
      Did Clinton try to destroy her computer?
      Was government business being done though this email account?

      If any or all of these things are true then Clinton was far from innocent except in your dreams.

  15. When is the Hillary to Russia Connection portion of the investigatin going to start? What those high priced ham’n’eggers can’t walk, talk, spit, and chew bubblegum at the same time?

  16. Yeah, lot’s of back-scratchin’ going on here. Lawyers are cleaning up on the tax dollars. Government at its best. Apparently more government should fix this type of thing. Just another department or two away from getting this all straightened out…

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