Judge Buys FBI’s Bogus Rationale For Hiding Leaked Comey Memos

Judge Buys FBI’s Bogus Rationale For Hiding Leaked Comey Memos

The FBI, Justice Department, and D.C. district court have taken pains to prevent the public from seeing the Comey memos and deciding for themselves whether he has been 'telling all.'
Robin Ridless
By

When James Comey, the just-fired director of the FBI, testified before the Senate Select Committee on Intelligence last June, the public understood his testimony published before the hearing to be a highly reliable transcription of his earlier private conversation with the president.

At the time, the media couldn’t marvel enough at the vividness, accumulation of authentic detail (remember the “grandfather clock”?) and real-life drama in his sworn statement. That he told Congress he input his memo hurriedly into a laptop in a government limousine outside Trump Tower to “insure accuracy” only increased the public’s admiration, and also the sense that the testimony overlapped the memo itself, which in turn described the February meeting in the Oval Office when President Trump allegedly asked Comey to shut down the federal investigation of his former national security adviser, Michael T. Flynn.

That conversation, as filtered through Comey’s fevered literary imagination, quickly became the basis for widespread accusations that Trump was attempting to obstruct justice. As evidence of the collusion narrative failed to materialize, Trump’s opponents began to hang their hat on the obstruction theory, fueled specifically by that alleged exchange. Comey’s “secret memo” became the source of Comey’s higher authority, in part because the law grants a privileged evidentiary status to contemporaneous writings. Yet to this day, the FBI, Justice Department and D.C. district court have taken pains to prevent the public from seeing the actual memos and deciding for themselves whether James Comey has in fact been “telling all.”

Fake Rationale For Keeping Leaked Memo From Release

D.C. District Court Judge Boasberg denied Freedom of Information Act (FOIA) requests for the Comey memos in February. The requests were brought by CNN, Judicial Watch, The Daily Caller and others, all consolidated into a single class of “plaintiffs.” In siding with the FBI that the release would interfere with the Special Counsel’s investigation, the judge downplayed the public interest at stake in dispelling misunderstanding over the actual contents of the underlying documents.

Boasberg not only granted the exemption from FOIA compliance sought by the FBI, but also rejected the plaintiffs’ argument that Comey’s select and orchestrated disclosures of the memo last May defeated such exemption under the circuit’s “public domain doctrine.” Boasberg put a highly technical interpretation of “public domain” before the fact that Comey, fresh from being fired by Trump, had leaked information about the memos’ origin and contents in order to precipitate the appointment of a special counsel. Such denial implicitly sanctioned the game of evidentiary peek-a-boo the ex-director was playing with the public when he fed tidbits from his classified memo detailing his Flynn exchange with the president via his friend to The New York Times.

It was shortly after The New York Times published news of the existence of the memos, which it called the product of “a culture of recordkeeping,” that Comey testified before the Senate committee. At that time, he confirmed The New York Times story that out of distrust for the president, he’d kept contemporaneous records of his and Trump’s private conversations. Recall that Comey had already given the memos to a friend, who in turn read sections of them over the telephone to The New York Times. This fact will be important in the FOIA case that shortly ensued.

Comey’s Authority Can Only Thrive In A Culture of Secrecy

As already mentioned, Boasberg decided that case this past February, over half a year after the firing, against the plaintiffs who had submitted FOIA requests at once upon hearing about the memos. His main agreement with the FBI was that if the memos were released to the public, pursuant to the part of the statute known as Section 7(A), it might interfere with the enforcement efforts of the special counsel. When the plaintiffs lost on the 7(A) point, Boasberg’s opinion makes clear, they turned to the fact of Comey’s earlier leaks. They claimed that enough became known about the memos through these disclosures to neutralize any ongoing enforcement problems. Under the circuit’s specific treatment of the “public domain doctrine,” this should negate the availability of the 7(A) exemption.

But the judge disagreed the memos’ secrecy had been blown and — here is where it gets interesting — relied on the very distinctions made in the FBI’s brief that the media and the FBI had blurred when communicating with the public.

Here is how the judge put it:

The important point is that until the Memos are released, the public (or potential witnesses) cannot know how accurate his [Comey’s] recall of the Memos’ contents was. And perhaps more to the point, they cannot gauge ‘the level of detail in the memos’ and ‘the extent to which they contain information that was not the subject of his testimony.’ [Underlining in original; quoting Gov’t Reply]

So Comey’s portrayals of the memos and the memos themselves are different species of evidence after all! Problem is, you wouldn’t know that from listening to the media. Last May, for example, when news of the memos first broke, The New York Times treated the secondhand excerpts of the Flynn memo it heard from Comey’s confederate as documentary evidence: “The documentation of Mr. Trump’s request is the clearest evidence that the president has tried to directly influence the Justice Department and F.B.I. investigation into links between Mr. Trump’s associates and Russia.”

Quoting former Republican Rep. Jason Chaffetz on the specter of obstruction this raised, The New York Times article then proceeded to use staged hearsay to seemingly corroborate the memo’s bona fides:

Mr. Comey wrote the memo detailing his conversation with the president immediately after the meeting, which took place the day after Mr. Flynn resigned, according to two people who read the memo. It was part of a paper trail Mr. Comey created documenting what he perceived as the president’s improper efforts to influence a continuing investigation. An F.B.I. agent’s contemporaneous notes are widely held up in court as credible evidence of conversations.

But Boasberg didn’t seem concerned that the media was conflating the source documents with the far from definitive accounts being given of them. He focused instead on precedential language that secret documents must be “officially released in permanent form” to satisfy the public domain doctrine. According to Boasberg, that never occurred.

The hard copy of the Flynn memo, Boasberg noted, was never publicly available, only orally communicated. But didn’t Comey’s friend get a copy? Yes, the judge concluded, but Comey probably didn’t release the memo(s) to an unauthorized recipient while still director, only after he was fired; and if he had still been in office, he hadn’t “intended” to release the material in his official capacity. Consequently, the FBI couldn’t be held responsible for a “discretionary release of documents to a close friend.”

So the “as-told-to” The New York Times structure that Comey set up to cause panic among the ranks amounted to no more than “a discretionary release of documents to a close friend.” Suddenly, it makes sense why Comey didn’t give the hard copy of the Flynn memo directly to The New York Times. That prevented it from circulating, which would have disqualified the FBI from availing itself of the 7(A) exemption. By the time the FOIA case was heard, the memos “in permanent form” had already been whisked off to the Mueller team, the FBI’s enforcement exemption securely in place.

With its finely crafted imitation of spontaneity, Comey’s testimony left a widespread impression that his conjurations of the meeting with the president were on the spot and therefore more trustworthy as records than later reconstructions from memory. They weren’t. That was obvious to Boasberg, as well as the FBI, who, as the Plaintiffs argued, never took issue with the public’s credulous perception of Comey’s overwrought tableaux of the Oval Office meeting. Without back-up by the reputed “secret memos,” Comey’s version of the Flynn exchange would have come down to he said/she said. Sadly, a different decision by Boasberg would have made that transparent not just to deep state insiders, but to the public as well.

Instead, Comey is at it again. His new book trafficks in rumors while the Justice Department resists demands that the memos be provided to the House Intelligence Committee. Hopefully, Comey’s latest stab at grandiosity will unmask the false equivalence between the memos and the creative license he has taken with the truth. Until then, all public speculation about the president’s obstructing justice rests on a house of cards.

Robin Ridless is a lawyer in New York City.

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