Comey’s Mishandling of Classified Information

Recently, there has been controversy over allegations that former FBI Director Comey leaked classified information, an issue that I mentioned on twitter  a month ago. The recent news-cycle began with a story in The Hill,  leading to a tweet by Trump, followed by a series of sneering “rebuttals” in the media (CNN, Slate, Politico, Vanity Fair).  Comey defenders (like Hillary Clinton’s) claim that classification was done “retroactively”:

In fact, the Hill’s John Solomon noted that it’s unclear whether the classified information in the memos was classified at the time the memos were written and Politico’s Austin Wright reports Monday afternoon that some of Comey’s memos were indeed classified only retroactively

Thus far undiscussed by either side is Comey’s testimony to the House Intelligence Committee on March 20, which dealt directly with both the classification of details of Comey’s January 6 meeting with Trump and Comey’s understanding of obligations in respect to classified information. (Comey’s questionable briefing and conduct in the January 6 meeting merit extremely close scrutiny, but that’s a story for another day.)  The net result is that it seems inescapable that Comey either misled the congressional committee or mishandled classified information.

The January 6 Meeting

There was much public anticipation for Trump’s January 6 intelligence briefing, presented to him by Comey, CIA Director John Brennan, Director of National Intelligence James Clapper and NSA director Michael Rogers. An unclassified intel assessment was concurrently released on January 6, which, in respect to hacking allegations, added nothing to the earlier Dec 29 intel assessment on hacking. The presence of Comey, Brennan, Clapper and Rogers at the intel briefing was widely reported.  Towards the end of the briefing, Comey asked for the opportunity to meet with Trump one-on-one.
After Trump aides and the other three intel directors left the room, Comey briefed Trump on the Steele Dossier, the story of which remains mostly untold. The Steele Dossier, paid for by a still unidentified “Democratic donor”, had been produced by a DC opposition research firm (Fusion GPS) directly connected with the “Kremlin-connected” lawyer, Natalia Veselniskaya, who had met with Donald Trump Jr in June 2016. Although the Steele Dossier contained multiple fabrications, its lurid allegations were taken very seriously by both the CIA and FBI, which, together with other government agencies, had been investigating them for months. Although Comey later objected to Trump talking to him one-on-one without a DOJ minder present, it was Comey himself who initiated the practice.
According to Comey’s written evidence on June 5, the ostensible purpose of Comey’s briefing to Trump on unverified material was to “alert the incoming President to the existence of this material” because they “we knew the media was about to publicly report the material” and, “to the extent there was some effort to compromise an incoming President, we could blunt any such effort with a defensive briefing.”  Even though the FBI, CIA and other agencies had been investigating allegations in the Steele Dossier for months, Comey, “without [Trump] directly asking the question”), “offered [Trump] assurance” “that we were not investigating him personally” supposedly to avoid any “uncertain[ty]” on Trump’s part “about whether the FBI was conducting a counter-intelligence investigation of his personal conduct”.
Comey’s briefing to Trump on January 6 appears to have intentionally misled Trump about counter-intelligence investigations into the Steele dossier, in effect treating Trump like a perp, rather than a legitimately elected president.  It took a while for Trump to figure out that he was being played by Comey.
The outcome of Comey’s briefing about the Steele dossier was the exact opposite of Comey’s subsequent self-serving explanation. The information that Trump had been briefed on the Steele Dossier was immediately leaked to the press, which had long been aware of the questionable and unverifiable dossier but thus far resisted the temptation to publish it. (Some details from the Steele Dossier had been previously published, they provide an interesting tracer on previous leaks – a topic that I’ll discuss on another occasion.)
CNN broke the news that intel chiefs had “presented Trump with claims of Russian efforts to compromise him” – using the leaked information about the contents of Comey’s briefing to Trump as a hook to notify the public about the existence of the dossier. CNN, having thrown the bait into the water, sanctimoniously refrained from publishing the Steele Dossier itself as unverified. Once CNN wedged the news, the dossier story went viral. Within an hour, Buzzfeed published the controversial Steele Dossier itself. Once it was in the sunlight, secondary parties named in the dossier (Trump’s lawyer Michael Cohen, one-time Trump campaigner Carter Page, Webzilla) were able to challenge fabrications in the Steele Dossier, which had seemingly gone undetected during months of investigation by the FBI, CIA and other agencies.  (The allegation of Putin’s “direct” involvement originated in the Steele Dossier. Although the intel agencies gild the accusation in secret “sources and methods”, it appears highly possible and even probable that there is no evidence for this allegation other than the Steele Dossier.)
Trump was (quite reasonably, in my opinion) livid that details of Comey’s briefing to him had been leaked. These concerns were a major issue in his next meeting with Comey – a narrative that I’ll discuss on another occasion.

Comey at the House Intelligence Committee, March 20

Skipping forward, Comey testified before the House Intelligence Committee. One of the major points of interest in this meeting was the January 6 briefing. Rep. King, who, like Trump, was both frustrated and concerned with leaks from the intel community, focussed in on the CNN leak because it concerned a classified briefing and, unlike most other leaks, only a very small number of people were involved. King (reasonably) thought that these considerations would make it relatively easy to track down the leaker.  King’s exchange with Comey is fascinating to re-read, knowing, as we do now, that the briefing on the Steele Dossier had been done by Comey himself one-on-one with Trump.
King asked Comey about the leak to CNN as follows:

Do you — does that violate any law? I mean you were at a classified briefing with the president-elect of the United States and it had to be a very, very small universe of people who knew that you handed them that dossier and it was leaked out within hours. Are you making any effort to find out who leaked it and do you believe that constitute a criminal violation?

Comey responded that “any unauthorized disclosure of classified conversations or documents” was very serious and that such incidents “should be investigated aggressively and if possible, prosecuted”:

COMEY: I can’t say, Mr. King except I can answer in general.
KING: Yes.
COMEY: Any unauthorized disclosure of classified conversations or documents is potentially a violation of law and a serious, serious problem. I’ve spent most of my career trying to figure out unauthorized disclosures and where they came from. It’s very, very hard.
Often times, it doesn’t come from the people who actually know the secrets. It comes from one hop out, people who heard about it or were told about it. And that’s the reason so much information that reports to be accurate classified information is actually wrong in the media. Because the people who heard about it didn’t hear about it right. But, it is an enormous problem whenever you find information that is actually classified in the media. We don’t talk about it because we don’t wanna confirm it, but I do think it should be investigated aggressively and if possible, prosecuted so people take as a lesson, this is not OK. This behavior can be deterred and its deterred by locking some people up who have engaged in criminal activity.

King then attempted to draw out from Comey who was “in the room”. King presumed that Comey, Clapper, Brennan and Rogers were “in the room” and wondered if there were any others:

KING: Well, could you say it was — obviously, Admiral Rogers was in the room, you were in the room, General Clapper was in the room and Director Brennan was in the room. Were there any other people in the room that could’ve leaked that out?
I mean this isn’t a report that was circulated among 20 people. This is an unmasking of names where you may have 20 people in the NSA and a hundred people in the FBI, its not putting together a report or the intelligence agency. This is four people in a room with the president-elect of the United States. And I don’t know who else was in that room and that was leaked out, it seemed within minutes or hours, of you handing him that dossier and it was so confidential, if you read the media reports that you actually handed it to him separately.
So believe me, I’m not saying it was you. I’m just saying, it’s a small universe of people that would’ve known about that. And if it is a disclosure of classified information, if you’re going to start with investigating the leaks, to me that would be one place where you could really start to narrow it down.

Comey (the only person “in the room”) refused to answer on the grounds that he did not want to confirm any details of “a classified conversation with a president or president-elect”:

COMEY: And again, Mr. King, I can’t comment because I do not ever wanna confirm a classified conversation with a president or president-elect. I can tell you my general experience. It often turns out, there are more people who know about something you expected. At first, both because there may be more people involved in the thing than you realized, not — not this particular, but in general. And more people have been told about it or heard about it or staff have been briefed on it. And those echoes are in my experience, what most often ends up being shared with reporters.

King persisted:

KING: Well, could you tell us who else was in the room that day?
COMEY: I’m sorry?
KING: Could you tell us who else was in the room with you that day?

But Comey would not be drawn in:

COMEY: No, because I’m not going to confirm that there was such a conversation because then, I might accidentally confirm something that was in the newspaper.

King then tried to find out whether there had even been a conversation about the Steele Dossier:

KING: But could you tell us who was in the room, whether or not there was a conversation?

Comey refused to even confirm that there was a “conversation” in an unclassified setting (while allowing that he might be more forthcoming in a “classified setting”):

COMEY: No, I’m not confirming there was a conversation. In a classified setting, I might be able to share more with you, but I’m not going to confirm any conversations with either President Obama or President Trump or when President Trump was the President-elect.

King then tried to get Comey to say “who was in the room for the briefing”:

KING: Well, not the conversation or even the fact that you gave it to him, but can you — can you tell us who was in the room for that briefing that you gave?
COMEY: That you’re saying later ended up in the newspaper?
KING: Yes.

Comey again refused, citing the classified setting of the event

COMEY: So my talking about who was in the room would be a confirmation that was in the newspaper was classified information, I’m not going to do that. I’m not going to help people who did something that — that is unauthorized.

King then tried to elicit a comment on whether the four directors had gone to Trump Tower, with Comey still being coy but using the event as an example of protecting classified information:

KING: Yeah, but we all know that the four of you went to Trump Tower for the briefing, I mean that’s not classified, is it?
COMEY: How do we all know that, though?
COMEY: Yeah.
KING: You know, you can — you see the predicament we’re in, here.
COMEY: I get it. I get it. But we are duty-bound to protect classified information, both in the first when we get it, and then to make sure we don’t accidentally jeopardize classified information by what we say about something that appears in the media.

Comey’s Written Evidence, June 5

After refusing to answer questions from the House Intel Committee on the January 6 meeting on the grounds that such details were classified, Comey, supposedly drawing on a contemporary memo on the meeting (which does not appear to have been filed in the FBI document system), provided numerous details on the classified meeting in his written evidence on June 5:

 I first met then-President-Elect Trump on Friday, January 6 in a conference room at Trump Tower in New York. I was there with other Intelligence Community (IC) leaders to brief him and his new national security team on the findings of an IC assessment concerning Russian efforts to interfere in the election. At the conclusion of that briefing, I remained alone with the President-Elect to brief him on some personally sensitive aspects of the information assembled during the assessment.
The IC leadership thought it important, for a variety of reasons, to alert the incoming President to the existence of this material, even though it was salacious and unverified. Among those reasons were: (1) we knew the media was about to publicly report the material and we believed the IC should not keep knowledge of the material and its imminent release from the President- Elect; and (2) to the extent there was some effort to compromise an incoming President, we could blunt any such effort with a defensive briefing.
The Director of National Intelligence asked that I personally do this portion of the briefing because I was staying in my position and because the material implicated the FBI’s counter- intelligence responsibilities. We also agreed I would do it alone to minimize potential embarrassment to the President-Elect. Although we agreed it made sense for me to do the briefing, the FBI’s leadership and I were concerned that the briefing might create a situation where a new President came into office uncertain about whether the FBI was conducting a counter-intelligence investigation of his personal conduct.
It is important to understand that FBI counter-intelligence investigations are different than the more-commonly known criminal investigative work. The Bureau’s goal in a counter-intelligence investigation is to understand the technical and human methods that hostile foreign powers are using to influence the United States or to steal our secrets. The FBI uses that understanding to disrupt those efforts. Sometimes disruption takes the form of alerting a person who is targeted for recruitment or influence by the foreign power. Sometimes it involves hardening a computer system that is being attacked. Sometimes it involves “turning” the recruited person into a double-agent, or publicly calling out the behavior with sanctions or expulsions of embassy-based intelligence officers. On occasion, criminal prosecution is used to disrupt intelligence activities.
Because the nature of the hostile foreign nation is well known, counterintelligence investigations tend to be centered on individuals the FBI suspects to be witting or unwitting agents of that foreign power. When the FBI develops reason to believe an American has been targeted for recruitment by a foreign power or is covertly acting as an agent of the foreign power, the FBI will “open an investigation” on that American and use legal authorities to try to learn more about the nature of any relationship with the foreign power so it can be disrupted. In that context, prior to the January 6 meeting, I discussed with the FBI’s leadership team whether I should be prepared to assure President-Elect Trump that we were not investigating him personally. That was true; we did not have an open counter-intelligence case on him. We agreed I should do so if circumstances warranted. During our one-on-one meeting at Trump Tower, based on President-Elect Trump’s reaction to the briefing and without him directly asking the question, I offered that assurance.

Had Rep King known these details on March 20 – in particular, that Comey was the only person present in the briefing to Trump on the Steele Dossier, it is evident that his questioning on the CNN leak would have gone in a very different direction. But Comey withheld that information from him.


Comeys defenders have argued that the content of the memoranda was classified “retroactively”, thus supposedly rebutting any fault on Comey’s part or, alternatively, that Comey wrote his memoranda so that no classified material was included.
However, neither applies to the January 6 meeting (and perhaps others). The January 6 meeting is easier because of Comey’s own evidence. In his evidence to the House Intel Committee, Comey unequivocally stated that any and all details about the January 6 meeting were “classified” and used this as an excuse to refuse to answer questions on the meeting, thereby concealing his unique role in the briefing from the committee.  Having taken this position before the Committee, Comey is on the horns of a dilemma: either the details were classified (as he told the Committee) or he lied to the Committee.  Neither explanation is to Comey’s credit.