Below is my column in the Hill Newspaper on the curious coverage surrounding James Comey and his leaking of his memos on meetings with President Donald Trump. With the confirmation hearings of Comey’s replacement, Chris Wray, today, the status of the memos may come up in the Senate.
Here is the column:
In one of my favorite Westerns, “The Man Who Shot Liberty Valance,” Jimmy Stewart reveals to a reporter that he was not the man who killed villain Liberty Valance — a legend that transformed him from a perceived coward to an inspiration hero and resulted in his being elected U.S. senator and ambassador to Great Britain. The seasoned reporter listens to the whole story, but in the end says that he will not print it.
He states the rule simply as “[w]hen the legend becomes fact…print the legend.” In many ways, James Comey is the Jimmy Stewart of the media production of “The Man Who Shot Lying Trump.” From the outset, reporters and Democrats (who had been calling for Comey’s firing or questioning his judgment) declared him to be the man who fearlessly stood up to a president demanding loyalty pledges and discarding legal and ethical standards.
The problem with that narrative is not the criticism of the actions of President Trump, but the consistent efforts to ignore the equally troubling actions of former FBI Director Comey. Yet, if Trump was to be the irredeemable villain, Comey had to be the immaculate hero. The script glitch centered on three allegations — all of which were actively denied by legal experts. First, Comey leaked memos of his meetings with Trump. Second, those memos constituted government material. Third, the memos were likely classified on some level.
Yes, the memos were leaked.
As I previously wrote, various legal experts went on the air on CNN and other cable news programs to dismiss the allegation (that a few of us printed) that Comey “leaked” his now famous memos detailing meetings with the president. Experts declared that leaks by definition only involve classified information — a facially ridiculous position that was widely stated with complete authority. Whether someone is prosecuted for a leak is a different question but a leak is the release of nonpublic information, not just classified information. University of Pennsylvania Law Professor Claire Finkelstein, CNN Legal Analyst Michael Zeldin, Fordham Law Professor Jed Shugerman, and others dismissed the notion that such memos could be deemed “leaks.”
Comey was a leaker, and he leaked for the oldest of motivations in Washington: to protect himself and hurt his opponents. Comey knew he would be called before the Congress and that these memos would be demanded by both his own former investigators as well as congressional investigators. That could have happened in a matter of days but Comey decided to use a friend to leak the content of the memos to the media (after giving the memos to his friend). In doing so, Comey took control of the media narrative and was lionized by the media.
Recently, the Senate Homeland Security Committee released a majority report that correctly referenced the Comey “leaks.” The report detailed a massive increase in leaks against the Trump administration but highlighted the leak by Comey. What makes that reference most troubling is that Comey was the person with the responsibility to find the leakers in the Trump administration. Yet, after the president expressly asked him to find leakers, Comey became a leaker himself. Moreover, as FBI director, Comey showed no particular sympathy to leakers and his department advanced the most extreme definitions of what constituted FBI information.
Yes, the memos were government property.
When some of us noted that these memos clearly fell within the definition of FBI information and thus they were ostensibly government (not private) property, there was again a chorus of experts dismissing such allegations against Comey. Asha Rangappa, a former FBI special agent assured CNN that these constitute merely “personal recollections” and would not fall into the definition of government material. Others joined in on the theme that these were like a “personal diary” and thus entirely his private property. Obviously, removing FBI material would not be a reaffirming moment for the Beltway’s lone, lanky hero. But that is what he did.
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.”
These were memos prepared on an FBI computer about a meeting on an FBI investigation with the president of the United States in the Oval Office and other locations. The contents were important enough that Comey immediately shared them with his highest management team and consulted on how to deal with the information.
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.
Yes, the memos were classified.
If Comey did leak government property, a third issue was whether the information was considered classified. Once again, the classified status does not determine if this was a leak (it was) or if it was government information (it was). However, many experts insisted that the material was clearly unclassified.
Comey’s representation of the unclassified status struck me as highly questionable at the time. I noted that the information would have likely been classified on some level, including “confidential” under governing standards. Moreover, FBI employees are not given free license (or sole authority) to write things in an “unclassified fashion.” That is why there are classification reviews. Information coming out of meetings with the president are routinely classified, let alone information deemed material to pending investigations.
As I noted earlier, the standards that Comey enforced as director belied his own account. The FBI restricts material generated in relation to investigations as “FBI information.” FBI rules cover any “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Under the Freedom of Information Act, the FBI routinely claims this type of information as either classified or privileged or both.
Comey however repeatedly assured the Senate that there was nothing classified or privileged in the memos. In an exchange with Sen. Mark Warner (D-Va.), Comey said, “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…” Then Warner interrupted to say, “Amen.”
However, the issue was not the writing of the memos but their removal from the FBI and their leaking to the media. There is a reason why “sometimes when things are classified, it tangles them up.” It is called classification review. That does not give you license to transfer the information into a separate document and declare it a “Dear Diary” entry. That is a loose interpretation that Comey as FBI director never afforded to his subordinates and it would effectively gut the rules governing privileged and classified information.
Not surprisingly, The Hill reported that indeed the memos have been declared classified by the FBI. The newspaper maintains that four of the memos had markings indicating they contained classified material at the “secret” or “confidential” level. It is not clear whether the memos leaked to Comey’s friend and then the media included these memos or contained classified or privileged information. However, the finding shows that Comey was wrong in claiming that he wrote the memos to avoid any classified information and the removal of the classified memos constitutes a violation of federal rules and FBI protocols.
None of this takes away from the seriousness of Comey’s allegation or the need to investigate possible obstruction of justice. However, it does raise serious questions about own Comey’s judgment and the legality of his actions. Yet, the coverage on these findings has largely been crickets.
It is much like that final scene in “The Man Who Shot Liberty Valance”? After Jimmy Stewart unburdened himself that he was a fraudulent hero, he boarded the train back to Washington and thanked the conductor for his kindness. The conductor simply responded, “Nothing’s too good for the man who shot Liberty Valance!”
It seems that in both Westerns and politics, you print the legend.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He was cited in the Senate Homeland Security Committee report on media leaks during the Trump administration.
The views expressed by contributors are their own ad are not the views of The Hill.