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It’s become a stock talking point among the Trumpinistas that James Comey is guilty of leaking classified information to the press in order to foster the assignment of Robert Mueller as Special Counsel just one day after Meuller had interviewed for Comey’s former position as FBI Director.

It means that’s how Whistle-Blowing works. Also If an illegal leak makes what results from it illegal – then isn’t your entire Administration Illegal since it wouldn’t have happened without the illegal DNC leaks from your pals at the FSB, GRU, Guccifer2.0 and Wikileaks?

Anyhoo…

The DOJ Inspector General who this week issued a criminal referral to the U.S. Attorney for DC against former Deputy FBI Director Andrew McCabe for lying about his authorization of leaks to the press — even though McCabe claims that he simply forgot, but he has email documentation proving that he had previously informed Comey that he’d authorized the leak and he’s seems pretty confident since he’s also sueing the Trump administration for defamation and wrongful termination  over that issue — the IG has now opened an investigation into question of Comey’s handling of classified materials. That means that this issue has gone several steps past simply being a talking point, it could also turn into a criminal referral if sufficient evidence is found incriminatin Comey.

And that might be a serious theat since last July the FBI determined that 4 out of 7 of his memos contained classified or sensitive information. So the quesioni is, how likely is it that Comey will be receiving his own criminal referral and have to file his own counter suit to fight back?

Let’s see.

Like Trump Huckabee-Sanders has made the claim that Comey leaked “4 classified memos” to the press echoing the FBI statement, except that’s not what they really he did.

The Hill reported Sunday night that sources familiar with the documents said that more than half of the personal memos have been deemed to contain material categorized as “secret” or “confidential.” Comey’s decision to share them outside the agency, they said, could potentially violate the very security protocols Comey criticized Democratic presidential candidate Hillary Clinton for breaking.

In his June testimony before the Senate Intelligence Committee, Comey said that he considered the memos to be personal documents, not agency property. He said that he passed one of them to his friend Columbia University law professor Ben Wittes in hopes that Wittes would share the contents with the media and spur the appointment of a special counsel to investigate Trump’s ties to Russia and his attempts to quash the investigation into them.

So the first issue right here is that Comey said under oath that he didn’t give Wittes (or another Professor named Richman) all of his memos, only one of them. He did admit in his testimony that he knew some of them contained classified and sensitive information but he was clear that one he shared with Wittes, did not.

Comey insisted in his testimony he believed his personal memos were unclassified, though he hinted one or two documents he created might have been contained classified information.

“I immediately prepared an unclassified memo of the conversation about Flynn and discussed the matter with FBI senior leadership,” he testified about the one memo he later leaked about former national security adviser Michael Flynn.

He added, “My view was that the content of those unclassified memorialization of those conversations was my recollection recorded.”

So how can we tell whether Comey shared anything more than a single memo with WIttes one week after he was fired by Trump on May 16th and whether that single memo was truly classified or not?  Well, have the report originally generated by the New York Times about that memo.

WASHINGTON — President Trump asked the F.B.I. director, James B. Comey, to shut down the federal investigation into Mr. Trump’s former national security adviser, Michael T. Flynn, in an Oval Office meeting in February, according to a memo Mr. Comey wrote shortly after the meeting.

“I hope you can let this go,” the president told Mr. Comey, according to the memo.

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.

This report only describes one memo.  It wasn’t until Comey’s testimony to the Senate after he was fired that he revealed that he had multiple memos from various conversations with Trump. In his written statement to Congress on June 8th he said the following.

I felt compelled to document my first conversation with the President-Elect in a memo. To ensure accuracy, I began to type it on a laptop in an FBI vehicle outside Trump Tower the moment I walked out of the meeting. Creating written records immediately after one-on-one conversations with Mr. Trump was my practice from that point forward. This had not been my practice in the past. I spoke alone with President Obama twice in person (and never on the phone) – once in 2015 to discuss law enforcement policy issues and a second time, briefly, for him to say goodbye in late 2016. In neither of those circumstances did I memorialize the discussions. I can recall nine one-on-one conversations with President Trump in four months – three in person and six on the phone.

People have argued that writing this document on a classified laptop would mean that the memo it self would be classified, but having worked in a classified working environment for over a dozen years — and my first job there was making sure that the proper classification markings, which were called “caveats” were included on all computer printouts —I can tell you that is not the case.  Still we don’t have speculate about any of this because we now have redacted copies of the memos.

The first one that Comey wrote on January 6th on his laptop after giving Trump and his staff a national security briefing which included Russia’s involvement in the election and also his private one-on-one with Trump about the “Russian Hookers” is actually an email he sent to his Deputy Andrew McCabe, his Chief of Staff James Rybicki and his Chief Counsel James Baker which had a “SECRET/ORCON/NOFORN” caveats attached. In the memo Comey explains that he’s not exactly sure what the classification on this document should be.

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Comey’s First memo — Originally Marked “SECRET

Clearly that memo contained classified information because it described the detailed discussion Comey, James Clapper and others had with Trump’s staff concerning specifically classified issues.

There are five levels of government classification possible.  UNCLASSIFIED, CONFIDENTIAL, SECRET, TOP-SECRET and CODE WORD/SPECIAL ACCESS which is the most sensitive possible although there are more variants and combinations possible according to National Security Documentation.

The secondary information in his caveat such as ORCON indicates “Originator Controlled” and “NOFORN” indicates that this information is not to be shared outside the U.S. with with Foreign Nationals.

As you can see the original classification that was assigned by Comey himself has been crossed out and a stamp applied indicating this was changed by the NSC on 4/19/18, the day before the memos were released to Congress.

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NSC classifcation notes

The next memo concerns the February 27th dinner meeting with Trump in the Green Room of the White House where Trump discussed Andy McCabe, the ”Golden Showers” thing, Michael Flynn. and many other subjects.  This one has a basic Caveat of CONFIDENTIAL/NOFORN which has also been crossed out and dated 1/28/17 — the day after the dinner —  then later initialed and dated again by Comey himself.

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Classification Caveat was overridden on 1/28/17
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Initials JBC and 1/28/17 indicates that Comey himself declassified this memo as soon as he wrote it.

The counter argument we’ve heard about all this which has been presented by the media is that sharing any classified material without authorization is always a problem.

FBI policy forbids any agent from releasing classified information or any information from ongoing investigations or sensitive operations without prior written permission, and it mandates that all records created during official duties are considered to be government property.

However, the power to provide that written authorization resides in the Original Classification Authority (OCA)— and the OCA in this case IMO happens to be Comey himself as head of a Federal Agency.

OCAs, also called original classifiers, include the President, Vice President, Secretary of Defense, the Secretaries of the Military Departments, and other officials within DoD who have been specifically delegated this authority in writing.
When Original Classification Authority is granted, OCAs are delegated classification authority specific to a level of classification and cumulative downwards. For example, an OCA appointed with Top Secret classification authority may classify information at the Top Secret, Secret, and Confidential levels. An OCA appointed with Confidential classification authority may only classify information at the Confidential level.
OCAs may only classify information that is under their area of responsibility, such as a specific project, program, or type of operation. For example, it would not be appropriate for an air wing commander to classify information about a Navy undersea warfare program.
Comey initialed and dated most of the memos by hand on the last page, however this is the only one that is dated in two places,  the first being right next to the classification caveat which has been marked out which makes me suspect that he may have manually overridden that initial classification himself.
As head of a Federal Agency Comey should be an OCA — which is ultimately determined by the President and Attorney General who have the authority to delegate OCA authority to the FBI director — and as such would absolutely have the authority to determine what is classified, and what is NOT classified within the realm of the FBI.  This is similar to when Trump decided to share Code-Word Classified materials with Russian Foreign Minister Lavrov and Ambassador Kislyak in the oval office.  He has the power to declassify what he wants, but I suspect then so does Comey — and also so did Hillary Clinton because as Secretary of State she was an OCA too.

In this case Comey himself may have declassified this memo the day after he wrote it, and it remained declassified when he ultimately shared one of his memos with Wittes.  However based on the NSC notes it also may have been later reviewed by the National Security professionals who then decided that it as indeed classified.

But why would they have done that?

According to the OCA guidelines these are the area in which something can be considered classified as of Executive Order 13526.

  1. Military plans, weapons systems, or operations
  2. Foreign government information
  3. Intelligence activities (including covert action), intelligence sources or methods, or cryptology
  4. Foreign relations or foreign activities of the United States, including confidential sources
  5. Scientific, technological, or economic matters relating to national security
  6. U.S. Government programs for safeguarding nuclear materials or facilities
  7. Vulnerabilities or capabilities of systems, installations,
  8. infrastructures, projects, plans, or protection services relating to national security
  9. Weapons of mass destruction

Now the first memo does address item #3 from this list — Intelligence Activities — because that was exactly the subject of the meeting, but none of these items were specifically discussed or mentioned by Trump or Comey during their dinner on February 27th which was the substance of Memo #2.

Still some items in Memo #2 were in fact redacted before the memo was ultimately released to Congress (as are shown above in the last paragraph just prior to Comey’s hand written initials and date).   That portion of Comey’s discussion with Trump were in regards to the fact that when Trump was making a statement that Theresa May had been the first foreign leader to call and congratulate Trump for his victory, Michael Flynn had corrected him and said some other foreign leader had called before that — 6 days prior which is why Trump had questioned Flynn’s “judgement” for waiting so long to bring it up.

What’s been redacted is who that Foreign leader is and what country they came from.

That discussion would fall under item #2 (Foreign government information) or #4 (Foreign relations or foreign activities of the United States including confidential sources) but I suspect it’s that latter as it appears to be a classification related to that specific Foreign Leader because Theresa May’s name has been left in the clear.

Subsequent reports by AP have been that the caller was PUTIN, which tends to indicate that this has been classified as a portion of the ongoing Mueller investigation and confidential sources iinked to it which didn’t yet exist at the point in time when the memo was written.  So even if we were to assume that this was memo leaked by Wittes to the Times there is an indicator — based on the oddly placed handwritten date next to the crossed out caveat)  —  that the day after Comey wrote this memo and when Wittes spoke to the Times it may have technically been UNCLASSIFIED.  Comey did testify to congress about some of the contents of this memo, however he never mentioned anything about Michael Flynn not informing Trump about the phone call [from Putin] which is the only thing here that has been redacted and remains classified.

The redactions and classifications related to Putin being the first person to call Trump is evidence in an Intelligence and obstrution investigation that may have began as a result of a memo being released. If so the fact is that Trump’s question about an “illegal leak then starting an illegal investigation” is based on the wrong premise.  As usual, he has his facts completely upside down and sideways. If this were the memo Comey released, by what I see in the notes it may have been UNCLASSIFIED at the time and only became classified as a result of Times story about one of his memos which started an investigation into Trump’s personal relationship with Putin.  But then again this point may be moot because IMO this isn’t the memo Comey gave to Wittes.

The third memo which was written on February 8th after Comey went to a White House meeting for a briefing with then Chief of Staff Reince Piebus where he was asked if there was FISA Warrant regarding Michael Flynn.  That is clearly a classified subject and the memo has an initial caveat of SECRET/NOFORN which is entirely appropriate.  This memo wasn’t declassified until it was released to Congress.  Comey’s answer to Flynn about the FISA question was redacted [Although looking at the amount of characters blacked out, it appears more likely to be “YES” rather than “NO”] It documents that after speaking with Priebus he later talked to Trump and the “Golden Showers” thing came up again which is something he did testify about, but he’s never revealed publicly if there was ever a FISA warrant on Flynn.

The 4th memo is from February 14th which details when Trump shoed everyone out of the room including Pence and Session to ask Comey for his “Loyalty” and “if he could see his way to “Let Flynn Go”. This quite clearly the memo that was shared with Wittes and then read to the New York Times… as shown by there own reporting. [Let me repeat the above quote from the NYTImes]

Mr. Comey wrote the memo detailing his conversation with the president immediately after the meeting, which took place the day after Mr. Flynn resigned,

Flynn was fired on February 13th.

However unlike memos #1-3 which are all marked classified and then were later downgraded this one has an original “UNCLASSIFIED/FOUO” (For Official use only) caveat.

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Memo #4 from 2/14/17 is Marked UNCLASSIFED.

It has no redactions. It has no notes by Comey indicating that he manually override it’s classification at a later date or anything. It has no notes indicating that the National Security review process found anything contained to be classified or sensitive, or date stamp indicating that it was subsequently declassified by them prior to be released to Congress.

It’s got none of that.

The discussion here is entirely about Trump asking for Comey’s “Loyalty” and asking “if he can see his way to letting this Flynn thing go.”  That’s exactly the memo that was read by Wittes and Richman to the New York Times.  THAT’S WHAT COMEY LEAKED and it’s totally, completely, absolutely UNCLASSIFIED.

There are several other memos including an UNCLASSIFIED/FOUO caveated email to his Chief fo Staff Rybicki (#5) about Trump calling him on March 30th to talk about a speech given by Sessions.   Memo #6 is also UNCLASSIFIED/FOUO set of notes that further expands on that phone conversation with Trump where he asked if Comey could “Lift the [Russia] Cloud.”  Comey then called Acting AG Dana Boente about the Trump’s call and asked whether it could be publicly released that Trump was not a “target” of an investigation.   Boente took hand-written notes and they match Comey’s word for word.  Comey later talked about this discussion during his Senate testimony.  Again both the email and the note about this call was entirely unclassified, so Comey telling congress about it wasn’t a “leak.”

Memo #7 is marked CONFIDENTIAL/NOFORN and discusses Comey returning Trump’s previous call to explain what he had discussed with Boente.  During that call Trump switched subject to complain about the leader Egypt and there are multiple redactions related to that portion of the discussion, so we’re again seeing information about Foreign leaders remaining classified and again, neither the New York Times report or any of Comey’s Senate testimony brought this up.  None of this was leaked.

At the time of the New York Times report Comey testified to only giving one memo to Wittes which is quite clearly #4 about the February 14th dinner and was quite clearly marked “UNCLASSIFIED” at the time and hasn’t been “up classified” at any point since. The New York times only talked about one memo which confirms his statement and Comey subsequently testified on June 8th that after the Times report he had since given all the memos to Mueller, so there was no further “leaking” of anything unclassified or otherwise.

Comey never mentioned any of the classified issues brought up in his memos, he never mentioned classified details in the Russia investigation, he never mentioned that he’d discussed whether Mike Flynn had a FISA Warrant, he’d never discussed that Putin had called the White House, he never discussed anything Trump said about the Leader of Egypt, he never discussed any of that in any interview or testimony until Congress released his memos to the media.

So really they are the leakers, not him.

I strongly suspect that the Inspector General will find all the above to be the case and the only potential issues I see aren’t with the leak via Wittes and Richman to the New York Times — it’s about whether the documents that were marked classified, and which were the property of the FBI and should have been retained by them after Comey had left his position and also where and how these documents were securely stored while in his possession — again admitting that several of them ARE CLASSIFIED. Did Comey still have his government laptop while he was no longer an FBI employee?  IMO it’s very likely he’d taken his laptop with him to L.A. and couldn’t take back to his office and turn it over because once he was fired Trump had him banned from the building.

I could see that being a problem — although it also may be the result of a situation that Trump created himself by being so impetuous and vindictive about how he fired Comey — but even so what Trump is claiming about “classified leaks” is pure nonsense.

It’s all in the memos.

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