Report: Comey Memos Are Government Documents . . . and Some Are Classified

Here’s what to make of the new information

Based on “interviews with officials familiar with the documents,” The Hill is reporting that more than half of the memoranda former FBI director James Comey made regarding his conversations with president-elect and then President Trump contain classified information. The FBI, moreover, has determined that all of the memos are government documents.

This will come as a surprise to no one who has been following this story on National Review. In a column on Comey’s memos a month ago, I explained that there was no doubt the memos were government documents (regardless of the former director’s suggestion that they were his personal property, memorializing his “recollection recorded” of his conversations with the president). I further explained that, while Comey’s judgment that the memos were not classified was entitled to considerable weight, we could not make a conclusive judgment on this because (a) we had not seen them and (b) they had not yet been subjected to “a classification review . . . by the White House or the Justice Department.”

I was inclined to give Comey the benefit of the doubt on the classification question. If The Hill’s report is accurate, however, a classification review has now happened, and it has been determined that more than half of the memos contain classified information.

Comey has stated in congressional testimony that he made seven memos of the nine conversations he recalls having with Trump.

In another intemperate tweet this morning, President Trump asserted, “James Comey leaked CLASSIFIED INFORMATION to the media. That is so illegal!” In reality, we do not yet know whether this is the case. For starters, The Hill’s report is based on leaks (which, I’d note, the president is not complaining about this time). The government has not taken a formal public position on the memos yet.

Second, even if we assume the report is accurate (as I am inclined to do), it indicates that at least four of the seven memos contain classified information — not that all of them do.

Comey testified that he gave at least one memo to an intermediary, a law professor at Columbia. (Full disclosure: The professor is a friend and former colleague of mine. I have not discussed the Comey memos with him.) The intermediary disclosed at least a portion of the memo to the New York Times. Thus, we do not know whether Comey gave all, some, or just one of the memos to the intermediary; we do not know whether the one memo we can be sure the intermediary got contained classified information; and we do not know whether the portion the intermediary shared with the Times was classified.

It is certainly possible that classified information was transmitted to persons not authorized to have it. But at this point, that has not been established.

There will be much to say about all this going forward. For now, I’ll stick to two precedents: Hillary Clinton and David Petraeus.

Claims about the classification status of Comey’s memos bring us right back to Hillary Clinton’s claims that her emails were not “marked classified,” and therefore that she lacked knowledge that they were classified when she stored and transmitted them. Ironically, as I recounted in the aforementioned column, it was Comey, then the FBI’s director, who debunked this theory (in his July 2016 press conference):

It is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.

As I elaborated:

To put a finer point on it, whether or not something is classified depends on the contents, not on whether some official with classification authority has deemed it, say, “top secret” and stamped it as such. As we pointed out during the Clinton e-mails hullaballoo, many government documents are “born classified.” That is, the contents of the documents fit the classification categories spelled out in the controlling executive order (EO 13526).

That brings us to the Petraeus precedent, which is relevant for two reasons.

First, as I explained in the column, the prosecution of former CIA director Petraeus — who pled guilty to misdemeanor mishandling of classified information — demonstrates that “the government regards many communications between national-security officials and the president as classified.” Petraeus’s journals are very similar in this regard to Comey’s memos because, among other sensitive documents, they contained notes of Petraeus’s conversations with the president of the United States (while Petraeus was a general commanding U.S. forces overseas).

Although Petreaus’s journals were not “marked classified,” he clearly knew that the journals were highly classified, based on his high-ranking national-security position and training in the handling of sensitive information. He thus never disputed this fact.

Second, Petraeus also did not dispute that the person with whom he shared the journals — his paramour and biographer — was not authorized to have access to them. On this score, it is noteworthy that the woman in question actually had a security clearance. Petraeus, nevertheless, did not attempt to claim this authorized the transmission of the journals to her. Again, in his high-ranking position, he knew that even having a security clearance did not qualify a person for access to all classified information. One must have a security clearance sufficiently high to warrant access to the material in question — and some classified information (including what was in Petraeus’s journals) is so closely held that even an official with a top-secret clearance must have a “need to know” and be “read into the program” to which the information relates.

Going forward, we will obviously have to learn more facts about what portions of the Comey memos are classified, who was given access to them, and what (if any) security clearances any recipients had.

Source: National Review

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