Comey's classified misconduct and the media's flawed coverage of it

A major headline from the Department of Justice's (DOJ) latest inspector general report is that fired FBI Director James ComeyJames Brien Comey3 reasons why impeachment fatigue has already set in Day 2 impeachment ratings drop by more than 1 million from first day Chris Wallace on Yovanovitch testimony: 'If you're not moved, you don't have a pulse' MORE mishandled classified information. But you’d never know it from most of the day-after media reporting on the historic findings. 

The internal DOJ watchdog documented, irrefutably, that Comey leaked the contents of a classified memo to his legal team, first orally and then by providing a copy of the document. Some of the memo’s content was then leaked to a media organization by one of his lawyers.

I first reported this when sources contacted me in late July and told me the inspector general (IG) had referred Comey to the Justice Department for possible prosecution for mishandling classified information. Attorney General William BarrWilliam Pelham BarrGOP rep predicts watchdog report on alleged FISA abuses will find 'problems' Barr defends Trump's use of executive authority, slams impeachment hearings GOP eager for report on alleged FBI surveillance abuse MORE’s team declined to bring charges.

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My reporting was directly confirmed when the IG released its final report Thursday. The information I laid out in my July 31 column was laid bare in the IG report’s official timeline. IG Michael Horowitz declared Comey's conduct so egregious that it created a “dangerous example for the over 35,000 current FBI employees — and the many thousands more former FBI employees — who similarly have access to or knowledge of non-public information.”

For some reason, not one but two Washington Post columns have emerged, suggesting I misled readers. Media critic Erik Wemple suggested I had “slimed” Comey. Another columnist, Aaron Blake, suggested my reporting led to a misleading narrative on Fox News. 

When confronted like this, a professional journalist has an obligation: Either retract and correct what you got wrong, or show the public the facts that affirm the reporting. I will do the latter.

But first, a word about the world of intelligence: I have covered it for 30 years, and it is one of the most complicated subjects for everyday journalists, especially if they are not steeped in the nuances and requirements of classified information. I keep a copy of the Office of the Director of National Intelligence’s (ODNI) guide to document classification, Executive Order 13526, and the FBI’s Domestic Investigations and Operations Guide on my computer’s desktop. (You may soon conclude Comey might have benefitted if he had done the same!)

Now for the facts.

The IG concluded irrefutably that Comey’s “Memo 2,” recounting a Jan. 27, 2017, conversation with the president about the Russia investigation and dealings with world leaders, contained classified information.

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“Memos 2 and 7 contained small amounts of information classified at the ‘CONFIDENTIAL’ level,” the IG reported. Confidential is the lowest classification for secrets “that could be expected to cause damage to the national security,” according to the ODNI manual.

When Comey’s Memo 2 was finally declassified in 2018, it was shown to contain 11 classified passages or words related to foreign leader conversations that President TrumpDonald John TrumpMost Americans break with Trump on Ukraine, but just 45 percent think he should be removed: poll Judge orders Democrats to give notice if they request Trump's NY tax returns Trump's doctor issues letter addressing 'speculation' about visit to Walter Reed MORE referenced during his meeting with Comey. The FBI identified six classified words and the National Security Council identified five more, according to the IG. 

The IG also concluded that Comey wrongly removed documents from the FBI and failed to put classification markings on them. That’s a violation of FBI and intelligence community rules, the report said. 

But from the time Comey wrote it until it was declassified, the entirety of the memo was deemed to be classified under the intelligence community’s rules, even if it did not have the proper markings. “Information assigned a level of classification under this or predecessor orders shall be considered as classified ... despite the omission of other required markings,” the executive order governing classification states.

Should Comey have known Memo 2 was classified even if he didn’t mark it so?

Yes, according to the executive order that President Obama signed in 2010, which governed Comey’s actions in 2017. It states that, by default, any document referencing foreign-government information or foreign affairs is automatically assumed to be classified. “The unauthorized disclosure of foreign government information is presumed to cause damage to the national security,” it states.

The big reveal in the IG report comes in Comey lawyer Daniel Richman’s admission that he was orally briefed by Comey on the meeting described in Memo 2 and that he then leaked the information to The New York Times.

On May 11, 2017, “the New York Times publishes an article regarding the January 27 dinner meeting described in Memo 2, stating that Trump asked for Comey's loyalty,” the IG concluded. “Richman acknowledged that he was a source for the article, and that Comey had described to him what Comey said was President Trump’s request for loyalty at the dinner. At that time, Richman had not yet seen Memo 2.”

The intelligence community considers classified information to have been leaked whether it was done orally or in writing. Richman would not have done anything wrong because he had no way of knowing the memo or information in it was classified. But Comey clearly deserves blame. 

Eventually, on May 14, Comey leaked the actual Memo 2 to his lawyers, including Richman, using normal, non-secure email, according to the IG report: “Comey sends scanned copies of Memos 2, 4, 6, and 7 from his personal email account to the personal email account of one of his attorneys, Patrick Fitzgerald. … On May 17, Fitzgerald forwards these four Memos to Comey’s other attorneys, David Kelley and Richman.”

Comey, according to the IG, “did not redact” any classified information “before sharing Memo 2 with his attorneys.” The IG, however, offered some small comfort in noting that neither Comey nor his lawyers provided any of the 11 classified words from Memo 2 to reporters.

But it doesn’t change the fact that Comey, both verbally and physically, leaked the contents of Memo 2 — a document deemed at that moment to be classified in its entirety under the intelligence community’s rules — to his lawyers. And one of his lawyers then provided information derived from Comey’s recollections in the memo to the news media.

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“Under the FBI’s rules, that would be an unauthorized classified leak, potentially worthy of prosecution,” said Bassem Youssef, a decorated FBI agent who supervised the bureau’s super-secret NSA surveillance program until his retirement in 2015. He is regarded as one of the FBI’s experts on classification issues.

The seriousness of transmitting the classified memo is re-emphasized in the report, which noted that the FBI spent months scrubbing Richman’s and the other Comey lawyers’ computers to erase the confidential data.

In mid-June 2017, the “FBI begins the process of recovering or deleting the Memos from the computer systems of Richman, Fitzgerald, and Kelley, a process that is completed in January 2018,” the report noted.

Given these facts, why would two Washington Post columns insist it was wrong or misleading to suggest Comey leaked classified information? 

The answer may reside in Comey’s own public relations strategy since the report was published Thursday. Even though the report excoriated him for extensive misconduct that violated FBI rules and leaked a classified memo, Comey tweeted that he deserved an apology.

Charles McCullough III, the retired chief watchdog for the U.S. Intelligence Community, lambasted Comey’s response as “both befuddling and unbecoming a former FBI director. He may be angry, but the example he’s setting for current agents and intelligence officers is entirely inconsistent with the core values he's always espoused.”

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Intelligence professionals and reporters steeped in covering the intelligence community know the rules.

Too bad James Comey doesn’t.

John Solomon is an award-winning investigative journalist whose work over the years has exposed U.S. and FBI intelligence failures before the Sept. 11 attacks, federal scientists’ misuse of foster children and veterans in drug experiments, and numerous cases of political corruption. He serves as an investigative columnist and executive vice president for video at The Hill. Follow him on Twitter @jsolomonReports.