Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.----------------------------------------------
The lawsuit this week by CNN seeking the memoranda of former FBI director James Comey created something of a curiosity for viewers. In court, CNN is arguing that the memos are “FBI records” and should be turned over under the Freedom of Information Act (FOIA). On the air, CNN legal and political analysts have been insisting that these memos belong to Comey and are akin to his personal diary. The irony is that the CNN litigation could answer some of the underlying questions over the status of the memos and whether Comey was a leaker in the unauthorized dissemination of FBI information.
On Thursday, CNN filed for the release of the documents as “FBI records” in “unredacted” form and “without further delay.” There are two copies of these memos in FBI possession this week. First were the original versions created by Comey while he was FBI director. The memos were prepared on an FBI computer during the course of Comey’s investigation of the Russian matter. The memos were made in direct relation to the ongoing investigation and shared with his top staff as potentially relevant to the investigation. Second, there are the copies of the memos that were collected from Comey’s friend, Columbia Professor Daniel Richman, who received the memos from Comey to leak to the media.
Worse yet, Comey was fully aware that these memos would inevitably be collected as evidence by both the congressional committee and any special counsel — in addition to his own former team of investigators. Indeed, Comey was aware that he was being called to testify and could have shared these memos in a legal and professional way. Instead, he chose to use a friend to leak the memos early to the media.
CNN analysts came out immediately after Comey’s admission in his testimony, saying that first, this was not a leak because leaks are only classified (something I previously explained as entirely and facially incorrect), and second, these memos were like personal diaries that Comey had a right to disclose. Former FBI special agent Asha Rangappa on CNN balked at the suggestion of any leak as absurd because these were just Comey’s “personal recollections” like a personal diary. Others referred to the memos as being a private record or account of a private conversation.
By filing the lawsuit, CNN could force the FBI to legally identify the status of the memos. There should be multiple copies of these memos unless Comey deleted copies on his FBI computers (itself a potential violation of federal law). Each copy could be addressed in any FOIA production.
I previously noted that Comey’s suggestion that these memos belonged to him (and thus could be leaked to the media) would likely not pass muster with folks at the FBI who have to make such decisions. Indeed, it would not have passed muster under FBI Director James Comey. Leakers were pursued under his tenure as FBI director, and many of those investigated may be rather perturbed by the image of someone who went from chief law enforcer to high-profile leaker when it was to his advantage.
The FBI restricts material generated in relation to investigations “FBI information.” The agreement Comey presumably signed clearly encompassed these memos as FBI material and he swore to comply with their bar on “unauthorized disclosure” — not just during his time at the FBI but “following termination of such employment.”
FBI rules cover any “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” He is not at liberty to remove such documents after termination by the FBI, let alone leak them to the media. He also agreed that violation would terminate his security clearance and subject him to both criminal and civil liability, including injunctive relief.
Weeks ago, I raised the issue of whether the FBI would have turned over these documents under FOIA if they were demanded by the media. I expressed considerable doubt over such a notion as someone who has dealt with FOIA fights with the FBI for years.
The FBI would likely deny the requests under a number of exceptions. First, it could object that the documents were “related solely to the internal personnel rules and practices of an agency,” under 5 U.S.C. § 552(b)(2). Second, they could claim that they fell under documents which are “records or information compiled for law enforcement purposes,” (assuming they fell into one or more of six categories), under 5 U.S.C. § 552(b)(7). Third, and most importantly, they would also likely claim that the documents were “inter-agency or intra-agency memorandum or letters” which would be privileged in civil litigation, under 5 U.S.C. § 552(b)(5).
The FBI specifically would rely on the deliberative process privilege in making such a finding. It has insisted that the release of such information is harmful to “the integrity of agency decision-making by encouraging both full and frank discussions of policy proposals and to prevent premature disclosure of policies under review.”
Any of these claims would seriously undermine Comey’s suggestion (and those of many at CNN) that these were his personal notes and that he was free to leak them to the media.
It is possible that the FBI could dodge this thorny issue by releasing copies received from Richman or finding a way to finesse the status of the original memos. However, the lawsuit could prove highly illuminating on not just the legal status of the memos but the lawfulness of Comey’s conduct. He could be vindicated or implicated by the results. On one end of the spectrum is the suggestion by many that these memos are like diary entries by Comey.
As I have said before, that seems rather hard to square and treats the account like some eHarmony date gone bad (with awkward dinners and uncomfortable silences). On the other end of the spectrum are field reports, often called 302s, where agents memorialize meetings with potential witnesses or important discoveries. This clearly falls somewhere in the middle.
Of course, if these documents were viewed as FBI information at their creation, there remains the question on who would take the lead in investigating Comey as a possible leaker. The Justice Department as cut Robert Mueller a great berth. Yet, Comey is now a witness for Mueller — as the recent leak confirmed by telling the media that Trump is now being investigated for obstruction. It is not clear if Mueller would view Comey’s possible violations are falling within the scope of his mandate or whether he would be willing to investigate his own key witness in the obstruction investigation.
Ironically, Comey may have preferred for this to remain somewhere in the middle — undefined and uncertain. CNN could have just taken a critical step toward removing that ambiguity by forcing the FBI to classify the status of the documents. It is the type of clarity that could prove exceptionally helpful or harmful for James Comey.