Did the former FBI director try to give himself an advantage with the way he categorized his material?
Last May, the New York Times printed excerpts of a February 14,2017, memo written by James Comey, material that had been read to a Times reporter by Comey’s friend, Columbia University professor Daniel Richman. The Times made a point of emphasizing that there was nothing illegitimate in the sharing of the information: “The New York Times has not viewed a copy of the memo, which is unclassified,” the story read. And indeed, now that the Comey memos have finally been released, we see that memo was labeled “UNCLASSIFIED/ /FOUO.” (FOUO means “For Official Use Only.”) The peculiar thing is that the notes of the Feb. 14 White House meeting were the first of Comey’s several memos to be assigned an unclassified status. Why?
When the FBI director typed up his first encounter with Trump, which took place on January 6,2017, he put “SECRET” and NOFORN (a redundancy meaning that the secret document was to be shared with “No Foreign Nationals”) on the pages’ headers. The classification notation at the end of the memo reiterated SECRET and NOFORN and added “ORCON,” an acronym meaning that the originator of the document controls its dissemination or extraction. Comey chose to use that power to disseminate the memo to his trusted (!) deputy Andrew McCabe, as well as to the FBI’s James Rybicki and James A. Baker.
It’s worth emphasizing that Comey, in writing his memos, did not turn them over to some independent classifying official. The director wrote his memos and gave each whatever classification he felt was appropriate (if not advantageous).
Comey began his first memo with a discussion of the classification question: “I am not sure of the proper classification here so have chosen SECRET”; he asked his colleagues to “Please let me know of [sic] it should be higher or lower than that.” The recipients of the memo may have had something to say about it because when Comey penned his second memo to the file—detailing his late January private dinner with Trump in the White House Green Room—he gave it a lower level of classification, “CONFIDENTIAL/ / NOFORN.”
Come February 8,2017, Comey popped over to the White House “for a 4 pm ‘meet and greet’ with COS Reince Priebus.” For reasons not explained in the memo of that day’s activities, Comey bumped the classification back up to SECRET/ /NOFORN.
Six days later, Comey was at the White House again, this time to attend “an Oval office homeland threat briefing for the President.” As Comey puts in that day’s memo, “At the completion of the session, the President thanked everyone and said he wanted to speak with me alone.” One would think that a private conversation about policy with the president would be the sort of thing that would warrant a SECRET designation, or at the very least, CONFIDENTIAL. And yet—again for reasons not explained—all of a sudden Comey’s document is labeled UNCLASSIFIED/ /NOFORN. Nor is it merely some after-the-fact designation. Midway through the text of the memo, Comey writes this note: “because this is an unclassified document, I will be limited in how I describe what I said next.”
In other words, after writing a series of SECRET or CONFIDENTIAL memos detailing his interactions with the president, all of a sudden Comey starts treating his conversations with Trump as UNCLASSIFIED. Which brings us back to the question: Why?
It can’t be because the material discussed was uniquely unrelated to matters of national security or ongoing FBI investigations. After all, it is the February 14 meeting at which Trump discussed the dismissed National Security Advisor Michael Flynn, the meeting at which Trump famously said (according to Comey) “Flynn is a good guy and has been through a lot… I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” Thus, the conversation involved discussion of what can be assumed to have been, then, an ongoing investigation, the very sort of thing that would be at the very least CONFIDENTIAL if not SECRET. And yet in writing the memo, for the first time Comey specifically constrains what he says and how he says it so that he can give it an UNCLASSIFIED designation. Was this because Comey was already strategizing how to leak the information without putting himself at risk of being found to have released classified information?
One can see the value of the classification games in testimony Comey gave the Senate Judiciarry Committee in his last days as FBI director. On May 3,2017, Comey was asked by Sen. Charles Grassley, “Has any classified information relating to President Trump or his associates been declassified and shared with the media?” Comey answered, “Not to my knowledge.” Let’s imagine that Comey had personally already handed his Flynn memo to the New York Times (as opposed to later giving it to his professor friend to read to the Times). Even if that were the case, Comey’s statement to Grassley would not have been a lie. By shifting gears and making the Feb. 14 memo UNCLASSIFIED, Comey made it possible to release the memo, should he choose to do so, while retaining the ability to state if pressed—and do so entirely truthfully—that he had not leaked any classified material.
Comey’s remaining memos are also UNCLASSIFIED, until his last, a document recounting an April telephone call. Comey (again without explanation) reverts to classifying it as CONFIDENTIAL.
For all this careful crafting to maintain the ability to tell the truth under oath, the practice of the memo-writing and distribution placed Comey in the position of lying to Trump’s team. For example, consider this exchange recounted by Comey in the document he wrote memorializing his Feb. 8 White House meeting with Chief of Staff Reince Priebus: “He then asked me if this was a ‘private conversation.’” Comey writes. “I replied that it was.” Exactly how is a conversation “private” if it is being written down and disseminated?
Comey’s memos also made it more likely that leaks would happen, even as he told the president he was doing everything possible to limit inappropriate release of information. Trump, worried about the bad press he’d been getting through leaks, repeatedly asks Comey what can be done about them. The director assures the president that he’s on the job, but educates Trump repeatedly about the way Washington leaks: “I explained my view,” Comey writes, “that they almost always come from one or two hops out…” True enough. But by sharing with a handful of colleagues notes of his private conversations with Trump and others at the White House, Comey was increasing dramatically the number of people who were “one hop out” and thus in a position to leak.
