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

Yesterday, 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.