Report of Investigation of Former Federal Bureau of Investigation Director James Comey's Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda
Report of Investigation of Former Federal Bureau of Investigation Director James Comey's Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda
I. Introduction This report describes the investigation by the Department of Justice (DOJ or Department) Office of the Inspector General (OIG) into the creation, storage, and handling of certain memoranda (Memos) written by former Federal Bureau of Investigation (FBI) Director James B. Comey. Between January 6, 2017, and April 11, 2017, while Comey was Director of the FBI, he memorialized seven one-on-one interactions that he had with President-elect and President Donald J. Trump.1
Throughout this report, these Memos are referred to as Memo 1 through Memo 7, numbered chronologically according to the date each Memo was written. Comey, who had original classification authority as FBI Director, marked a small amount of information in Memo 1 as classified at the time that he wrote it. Comey also believed that Memo 3 contained classified information when he wrote it, but did not mark the document as classified. Comey kept signed originals of Memos 2, 4, 6, and 7 in a personal safe in his home and, following his May 2017 removal as FBI Director, provided his personal attorneys with copies of Memos 2, 4, and 6, and a redacted version of Memo 7; Comey never took copies of Memos 1, 3, and 5 to his home, and never shared these Memos with anyone outside the FBI.
In June 2017, following Comey’s removal as FBI Director, the FBI reviewed the Memos to determine if any of the Memos contained classified information. The FBI determined that Memos 1 and 3 contained information classified at the “SECRET” level, and that Memos 2 and 7 contained small amounts of information classified at the “CONFIDENTIAL” level. The FBI designated Memos 4, 5, and 6 as unclassified, “For Official Use Only.” This matter was referred to the OIG for review in July 2017 by then-Acting FBI Director Andrew G. McCabe, consistent with Department regulations and the Inspector General Act, after the FBI determined that Comey may have shared with his attorneys Memos that contained classified information. At the time, the OIG also was aware of Comey's June 8, 2017 congressional testimony that he had authorized a friend (who was also one of his personal attorneys) to provide the contents of Memo 4 — which did not contain any classified information — to a reporter for The New York Times. The focus of the OIG's investigation was to determine whether Comey violated Department or FBI policies, or the terms of his FBI Employment Agreement, in his handling of the Memos during and after his tenure as FBI Director.
The OIG's investigation included review of the Memos as well as numerous additional documents, emails, and news articles; and forensic analysis of certain computer systems. As part of this investigation, the OIG also interviewed 17 witnesses, including former Director Comey and Daniel Richman, the individual who, at Comey's request, shared the contents of one of the Memos with a reporter for The New York Times. Through our investigation, we learned that Comey considered Memos 2 through 7 to be his personal documents. He created Memo 2 and Memo 4 on his personal laptop computer, and kept signed originals of four of the Memos — Memo 2, Memo 4, Memo 6, and Memo 7 — in his personal safe at home, while he was serving as FBI Director.
He also generated a duplicate set of “originals” of Memos 2 through 7 for his Chief of Staff, James Rybicki, to maintain at the FBI. When Comey was removed as FBI Director on May 9, 2017, Comey still had copies of Memos 2, 4, 6, and 7 in his personal safe at home. After being removed as Director, Comey did not report to the FBI that he had copies of these Memos. Comey subsequently provided his copies of Memos 2, 4, 6, and 7 to the Office of Special Counsel Robert S. Mueller III on June 7, 2017.
On May 14, 2017, Comey used his personal scanner and private email account to provide electronic copies of Memos 2, 4, 6, and 7 to one of his personal attorneys. Three days later, on May 17, that attorney provided, via a personal email account, copies of these four Memos to two other attorneys, who were also part of Comey's legal team. Of the Memos Comey shared with his attorneys, contained six words that the FBI determined in June 2017 to be classified at the “CONFIDENTIAL” level; 3 Memos 4 and 6 contained information that the FBI determined in June 2017 to be “For Official Use Only,” but did not contain classified information; and Memo 7 was redacted by Comey before transmission, which obscured the information in Memo 7 that the FBI determined in June 2017 to be classified. Comey did not seek authorization from the FBI before providing Memos 2, 4, 6, and 7 to his attorneys.
On May 16, 2017, Comey provided a separate copy of Memo 4 to Richman, who was one of Comey's attorneys and also a close personal friend. Richman also had served as a Special Government Employee at the FBI during a portion of the time that Comey was FBI Director. Comey sent photographs of both pages of Memo 4 to Richman via text message from Comey's personal cell phone. Comey instructed Richman to share the contents of Memo 4, but not the Memo itself, with a specific reporter for The New York Times. Comey did not seek FBI authorization before providing the contents of Memo 4, through Richman, to a reporter. As noted above, the FBI later marked Memo 4 “For Official Use Only” and determined that it did not contain classified information. We found no evidence that Comey or his attorneys released any of the classified information contained in any of the Memos to members of the media.
Upon completing our investigation, pursuant to Section 4(d) of the Inspector General Act of 1978, the OIG provided a copy of its factual findings to the Department for a prosecutorial decision regarding Comey's conduct. See 5 U.S.C.A. App. 3 § 4(d) (2016). After reviewing the matter, the Department declined prosecution. Thereafter, we prepared this report to consider whether Comey’s actions violated Department or FBI policy, or the terms of Comey’s FBI Employment Agreement. As described in this report, we conclude that Comey’s retention, handling, and dissemination of certain Memos violated Department and FBI policies, and his FBI Employment Agreement.
Comey’s actions violated Department or FBI policy, or the terms of Comey’s FBI Employment Agreement. As described in this report, we conclude that Comey’s retention, handling, and dissemination of certain Memos violated Department and FBI policies, and his FBI Employment Agreement.
II. Relevant Statutes and Policies
A. Federal Records and Official Information
The statutory definition of Federal records is broad, and includes: all recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency...as evidence of the organization, function, policies, decisions, procedures, operations, or other activities of the United States Government or because of the informational value of data in them.
This definition includes any “act of creating and recording information by agency personnel in the course of their official duties, regardless of the method(s) or the medium involved.” 6 Working files, such as preliminary drafts or notes, may also qualify as official agency records if they were circulated or made available to other employees for official purposes, and contain “unique information” that assists in the understanding of an agency's policies, decisions, or actions.
Department and FBI policies address what qualifies as a federal record and describe employee responsibilities regarding federal records. The Department's policy states that “all DOJ employees are responsible for maintaining the information they generate, receive, or review while conducting Departmental business in accordance with Departmental and component policies.” The FBI's policy includes in the definition of a record any items that “document or explain the basis of a significant action or decision involving the exercise of government authority” or items “necessary to document other significant operations or administrative matters.”
The Department and the FBI follow specific guidance provided by the National Archives and Records Administration (NARA) for permanent retention of materials of senior officials, also known as “capstone officials.” NARA approves the records management program for capstone officials, of which the FBI Director is one. This program designates which documents are considered official Federal records, and provides specific records retention schedules for such capstone officials. The records retention schedule for FBI senior executives states that the FBI must maintain, as official FBI records, “the emails, personal notes, annotated briefings, not maintained elsewhere, and other documentation received or generated by the Director in the normal course of business.” (Emphasis added)
In contrast, federal regulations define personal files or records as “documentary materials belonging to an individual that are not used to conduct agency business.” Merely labeling a document as “personal” or “private” does not alter the official nature of a document if it is “used in the transaction of public business.” The FBI's Records Management Policy adds that personal papers are “materials…not used to conduct FBI business” that are “primarily personal in nature.” Documents containing both personal and official information “must be treated as a [Federal] record.” Department and FBI policies require that employees use officially approved Department or FBI Information Technology (IT) systems to process, store, and transmit official information. There are very few exceptions to this rule. For example, FBI employees may use non-FBI systems such as GPS to navigate, personal devices to locate colleagues during an emergency, or personal devices to check official emails through an FBI-sponsored secure web page. Department policy states that employees may not, without agency permission, remove records from the Department—either during or after employment. Under Department policy, the only items that departing employees may remove without prior approval are personal information or documents that are unrelated to the Department and official business; copies of any unclassified information already officially in the public domain; and copies of the employee's email contacts. A departing employee must make a written request, receive approval from the appropriate official, and execute a nondisclosure agreement before removing any records or information. Before authorizing any such request, the approving official must ensure that the requested documents do not contain any prohibited categories of information, such as classified information. According to Department policy, if the head of a Department Component—for example, the FBI Director—seeks to remove Department information, he must receive approval from the Assistant Attorney General for Administration. The FBI policies are no different. When FBI employees separate from the FBI, they are required to “surrender all materials in their possession that contain FBI information.” Every employee signs an FBI Employment Agreement at the beginning of their employment acknowledging this requirement. According to one Section Chief of the FBI's Records Management Division (RMD), this requirement covers “all [FBI] information,…whether it's a record or not, created or gotten by access or acquired during the course of their employment…, it is property of the U.S. government….”
B. Disclosure of FBI Information for Non-Official Use Purposes
Pursuant to FBI policy, all information acquired by FBI personnel “in connection with official FBI duties, as well as all official material to which FBI personnel have access, is the property of the United States.” Accordingly, before disclosing FBI information outside of the FBI for non-official purposes, current or former FBI personnel must obtain, with limited exceptions such as for whistleblowing and disclosures to Congress, advance permission from the FBI. This policy applies to any type of disclosure—whether oral, written, or electronic. FBI employees agree to be bound by this requirement when they sign the FBI Employment Agreement. In evaluating requests from current or former FBI employees to release FBI information for non-official purposes, the FBI reviews the proposed disclosure to ensure, among other things, that it does not include information that is classified, related to an ongoing investigation, or covered by the Privacy Act of 1974 (5 U.S.C. § 552a).
C. Department and FBI Policies on Disclosure of Information about Pending Investigations
Section 3.4 of the FBI’s then-existing Policy on Media Relations stated that disclosures to the media “must not address an ongoing investigation” except as indicated in that section.29 The section provided two examples of when it “may be permissible to selectively release [non-classified] information to assure the public that an investigation is in progress” with prior approval of specific components at FBI headquarters: (1) to protect the public interest, welfare or safety; (2) to solicit information from the public that might be relevant to an investigation. Section 3.3 of the FBI policy also provided that all releases must be consistent with all applicable laws and regulations and policy, including the thenexisting United States Attorneys’ Manual (USAM), Title 1-7.000, “Media Relations.”30 Title 1-7.000 of the USAM established specific guidelines for the release of information relating to criminal and civil cases by the FBI and other Department components. Among other things, Section 1-7.530 of the USAM provided that:
A. Except as provided in subparagraph B. of this section, components and personnel of the Department of Justice shall not respond to questions about the existence of an ongoing investigation or comment on its nature or progress, including such things as the issuance or serving of a subpoena, prior to the public filing of the document.
B. In matters that have already received substantial publicity, or about which the community needs to be reassured that the appropriate law enforcement agency is investigating the incident, or where the release of information is necessary to protect the public interest, safety or welfare, comments about or confirmation of an ongoing investigation may need to be made. In these unusual circumstances, the involved investigative agency will consult and obtain approval from the United States Attorney or Department Division handling the matter prior to disseminating any information to the media.
Comey told the OIG that, during his tenure as FBI Director, the authority to disclose the existence of a pending investigation was “confined to the Director and the Deputy Director” and that in making such decisions “the default [was] we don’t talk” about pending investigations.
Comey told the OIG that, during his tenure as FBI Director, the authority to disclose the existence of a pending investigation was “confined to the Director and the Deputy Director” and that in making such decisions “the default [was] we don’t talk” about pending investigations.
D. Statutes, Regulations, and Policies Regarding Classified Information and Documents Designated For Official Use Only
Current and former FBI employees have an ongoing responsibility to protect any classified information to which they are given access during the course of their employment. Executive Order 13526 sets forth a uniform classification system to “prevent access by unauthorized persons; ensure the integrity of the information;” and provide a standardized marking system across the executive branch to facilitate the use and sharing of classified information. This system applies to all “information owned by, produced by or for, or…under the control of the United States Government.”32 FBI employees must adhere to the policies promulgated by the Intelligence Community, the Department, and the FBI that implement this Executive Order. Federal employees may only have access to classified information if they have a current security clearance, have signed a nondisclosure agreement (NDA), and have a need to know the classified information to carry out official duties. Once granted access to classified information, authorized employees must properly handle it, protect it from unauthorized disclosures, and properly secure it in approved location. Likewise, FBI employees working with or discussing classified information must process, transmit, and store such information only on authorized systems and in approved facilities. Information is eligible for classification only if it falls into one of the categories listed in Executive Order 13526, which include intelligence activities, sources and methods, and “foreign relations or foreign activities of the United States.”36 There are three basic levels for classified information, each based on the amount of harm unauthorized disclosure of the information could reasonably be expected to cause to national security. Information is classified “TOP SECRET,” which is the highest level, if its unauthorized disclosure “reasonably could be expected to cause exceptionally grave damage” to national security. For information classified “SECRET,” the standard is “reasonably could be expected to cause serious damage” to national security, while for “CONFIDENTIAL” information (the lowest level), the standard is “reasonably could be expected to cause damage” to national security. In addition to the basic levels of classification, there are several dissemination controls which restrict the distribution of a classified document. The designation “NOFORN” or “No Foreign Nationals” means that the document cannot be provided to any foreign nationals. “ORCON” or “Originator Controlled” means that the document may not be provided to anyone without the express permission of the official or agency that originally drafted it. Some unclassified documents are subject to the “FOUO” dissemination control, which means they are “For Official Use Only.” This marking is “for UNCLASSIFIED official government information that is withheld from public release until approved for release by the originator.” FBI guidance sets forth additional instructions for the use of the “FOUO” designation, limiting its use to information such as personnel files, items exempted from public release by statute, and materials that would only be discoverable during litigation against the agency. In addition, FBI policies include specific requirements for the manner of storage and processing of “FOUO” information to prevent disclosure to anyone without a need to know. Federal employees who are designated as Original Classification Authorities (OCAs) bear the responsibility for determining, in the first instance, whether to classify information “owned by, produced by or for, or…under the control of the United States Government….” An OCA's authority flows from the President of the United States through agency heads, and Executive Order 13526 directs agencies to maintain only a small number of OCAs. The FBI has 16 OCAs, including the Director, Deputy Director, General Counsel, and the Assistant Directors of certain FBI Divisions, such as the Counterintelligence Division. These OCAs receive annual training, including “avoidance of over-classification,…instruction on the proper safeguarding of classified information and on the sanctions...that may be brought against an individual who fails to classify information properly or protect classified information from unauthorized disclosure.” Within the FBI, OCAs may only make classification decisions for information within the programs they oversee. OCAs must document their classification decisions in writing, by either marking specific documents individually (which the FBI notes is “rare”), or by specifying the categories of classified information in a classification guide. FBI employees who author classified documents must also properly mark the documents. Federal regulations, Intelligence Community guidance, and FBI policies require classified documents to contain several types of markings: classification headers and footers on each page of the document; individual portion or paragraph markings (i.e., the abbreviations in parentheticals at the beginning of paragraphs); and a classification authority block, which identifies who classified the document, the basis for the classification, and the declassification date after which release of the information no longer presents a danger to national security. The FBI's Safeguarding Classified National Security Information Policy Guide also requires that “[a]ny person who has knowledge that classified information has been or may have been lost, compromised, or disclosed to an unauthorized person must immediately report the circumstances to his or her security office.” The Federal Criminal Code contains statutes addressing the mishandling or release of classified information. For example, 18 U.S.C. §§ 793(d) and (f) are felony statutes regarding the mishandling of classified information relating to the national defense. Title 18 U.S.C. § 793(d) applies to individuals who have authorized access to such information, and willfully communicate, deliver, or transmit it, or cause it to be communicated, delivered, or transmitted to individuals who are not entitled to receive it. Section 793(f)(1) addresses the removal, delivery, loss, theft, abstraction, or destruction of such information through gross negligence of the individual entrusted with it. Section 793(f)(2) penalizes the failure to report the removal, loss, theft, abstraction or destruction of information relating to the national defense if an individual has knowledge that it has been removed from its proper place of custody. As indicated above, the OIG provided a copy of its factual findings to the Department for a prosecutorial decision. After reviewing the matter, the Department declined prosecution.
III. Timeline of Relevant Events
January 6, 2017 Intelligence Community Directors, including Comey, meet with President-elect Trump and his national security team at Trump Tower to discuss the Intelligence Community Assessment; Comey then meets with the President-elect one-on-one to alert Trump to “salacious and unverified” allegations about his 2013 trip to Moscow that the media may soon publish.
January 7, 2017 Comey finishes drafting Memo 1 on the FBI's secure computer system about the Trump Tower briefing and marks Memo 1 with the classification “SECRET//NOFORN/ORCON.” Comey emails Memo 1 to his Chief of Staff, the FBI Deputy Director, and the FBI General Counsel using the FBI's secure computer system. Comey does not take a copy of Memo 1 home.
January 27, 2017 Comey has dinner with President Trump at the White House.
January 28, 2017 Comey finishes writing Memo 2 on his personal laptop about his dinner the night before with President Trump. It states that during dinner, among other things, Trump told Comey he needed and expected “loyalty.” Memo 2 also describes an unrelated comment by the President about the relative importance of returning telephone calls from three different countries, one of which the Memo notes the President mentioned twice. Comey does not mark Memo 2 as classified. Comey places a signed printout of Memo 2 in his personal safe at home and gives a second signed printout to his Chief of Staff to keep at the FBI. During a classification review in June 2017, the FBI determines that six words in the Memo recounting the President's comment about returning telephone calls are classified “CONFIDENTIAL//NOFORN” because of the potential impact on foreign relations.
February 8, 2017 Comey writes Memo 3 on a classified FBI computer system because he believes Memo 3 contains classified FISA information. Memo 3 summarizes Comey's interactions that afternoon with Trump's then-Chief of Staff Reince Preibus, then-National Security Advisor Michael Flynn, and President Trump. Comey does not mark the printout of Memo 3 as classified before sharing it with others at the FBI. Comey does not take a copy of Memo 3 home. The FBI determines in June 2017 that Memo 3 contains information classified as “SECRET//NOFORN.”
February 14, 2017 Comey writes Memo 4 on his personal laptop describing, among other things, a one-on-one meeting that day with President Trump. According to Memo 4, Trump stated that he hoped Comey could “see [his] way clear...to letting [Michael] Flynn go.” At the time, Flynn was the subject of a non-public FBI investigation. Comey does not mark Memo 4 as classified. Comey places one signed printout of Memo 4 in his personal safe at home and gives a second signed printout to his Chief of Staff to keep at the FBI. The FBI determines in June 2017 that Memo 4 does not contain classified information, but marks it as “FOUO.”
March 1, 2017 Comey drafts Memo 5, a 4-line email to his Chief of Staff, on his unclassified FBI mobile device to summarize a non-substantive telephone call that day with President Trump. Comey does not mark Memo 5 as classified, and does not take a copy of Memo 5 home. In June 2017, the FBI determines it is not classified, but marks it as “FOUO.”
March 20, 2017 Comey testifies before the House Permanent Select Committee on Intelligence (HPSCI) at a hearing titled the Russian Active Measures Investigation. Comey acknowledges the FBI’s open investigation into Russian interference in the 2016 presidential election, but repeatedly refuses to answer questions about the scope of the investigation or specify who was under investigation, referencing the need to protect the integrity of the investigation and the privacy rights of those under investigation.
March 30, 2017 Comey writes Memo 6 on the unclassified FBI system in his office to describe a 10-minute telephone call with President Trump that morning. According to the Memo, Trump asked what Comey “could do to lift the cloud” of the FBI's Russia investigation. Comey gives a signed printout of Memo 6 to his Chief of Staff to keep at the FBI, and takes a second signed printout home to store in his personal safe. Comey does not mark Memo 6 as classified. In June 2017, the FBI determines that Memo 6 is not classified, but marks it as “FOUO.”
April 11, 2017 Comey drafts Memo 7, a 2-paragraph memo, on the unclassified FBI system in his office to summarize a brief telephone call with President Trump that morning. According to the Memo, Trump said he was “following up to see if [Comey] did what [Trump] had asked last time— getting out that [Trump] is not personally under investigation.” Paragraph 2 of Memo 7 summarizes an unrelated foreign policy discussion. Comey signs two printouts of Memo 7. Comey gives one to his Chief of Staff to keep at the FBI, and he stores the other in his personal safe at his house. Comey does not mark Memo 7 classified, but as described below, redacts the second paragraph of Memo 7 before sending it to his attorneys on May 14. The FBI determined in June 2017 that the second paragraph of Memo 2 contained Presidential comments about foreign affairs that are classified “CONFIDENTIAL//NOFORN.”
May 9, 2017 President Trump removes Comey as FBI Director and orders that Comey be barred from entering FBI Headquarters.
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.” 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.
May 12, 2017 President Trump tweets about the possible existence of “tapes” of his conversations with Comey.
May 14, 2017 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. Before sending, Comey redacts the second paragraph from Memo 7 involving foreign affairs because Comey deems it irrelevant. On May 17 Fitzgerald forwards these four Memos to Comey's other attorneys, David Kelley and Richman.
May 16, 2017 Comey sends a digital photograph of Memo 4 (describing the meeting in which Comey wrote that President Trump made the statement about “letting Flynn go”) to Richman via text message from Comey's personal phone. Comey asks Richman to share the contents, but not the Memo itself, with a specific reporter for The New York Times. Comey's stated purpose is to cause the appointment of a Special Counsel to ensure that any tape recordings that may exist of his conversations with President Trump are not destroyed. Richman conveys the substance of Memo 4 to the reporter. The New York Times publishes an article entitled “Comey Memo Says Trump Asked Him to End Flynn Investigation.”
May 17, 2017 Deputy Attorney General Rod Rosenstein appoints Robert S. Mueller III as Special Counsel. June 1-6, 2017 FBI conducts a classification review of Comey's Memos. The FBI determines that Comey correctly classified Memo 1 (which Comey did not share with anyone outside the FBI); that Memos 4, 5, and 6 are unclassified but “FOUO”; and that portions of Memos 2, 3, and 7 are classified, as follows:
Memo 2: Six words from a statement by President Trump comparing the relative importance of returning telephone calls from three countries, one of which the Memo notes the President mentioned twice, are classified as “ CONFIDENTIAL//NOFORN.” Comey did not redact this information before sharing Memo 2 with his attorneys. Memo 3: Information about sources, methods, investigative activity, and foreign relations is classified as “SECRET//NOFORN.” Comey did not share Memo 3 with anyone outside the FBI.Memo 7: An assessment of a foreign leader by President Trump and discussion of foreign relations is classified as “CONFIDENTIAL//NOFORN.” Comey redacted this paragraph before he sent Memo 7 to his attorneys.
June 7, 2017 Comey reviews the FBI's marked copies of all seven Memos in preparation for his congressional testimony. Comey returns to the FBI the unmarked copies of Memos 2, 4, 6, and 7 that he had kept at his home, but does not tell the FBI that he sent copies of Memos 2, 4, 6, and 7 to his three attorneys.
June 8, 2017 Comey testifies to Congress that he shared a copy of one Memo, regarding “letting Flynn go” (Memo 4), with a friend (Richman), with instructions that the friend share the contents with a reporter. The FBI has multiple telephone calls with Richman over the next several days and learns from Richman, on or before June 9, that he and Comey's other two attorneys also have copies of three other Memos. June 13, 2017 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.
IV. Factual Findings A.
Background Facts
1. Comey's Professional Background
Comey received a law degree from the University of Chicago Law School in 1985 and held a number of positions within the Department prior to being appointed FBI Director. Early in his career, from 1987 to 1993, Comey served in the office of the U.S. Attorney for the Southern District of New York, where he was promoted to Deputy Chief of the Criminal Division. From 1996 to 2001, Comey served as the Managing Assistant U.S. Attorney in charge of the Richmond Division of the U.S. Attorney's Office for the Eastern District of Virginia. Starting in January 2002, Comey served as the U.S. Attorney for the Southern District of New York, a position he held until December 2003, when Comey was appointed Deputy Attorney General for the Department of Justice. Comey served as Deputy Attorney General until 2005, after which he worked in the private sector. In 2013, Comey was nominated by then-President Obama to serve as FBI Director and was confirmed by the Senate to serve a ten-year term. On May 9, 2017, Comey was removed from his position as FBI Director by President Trump.
2. Terms of Comey's FBI Employment Agreement
As a condition of his employment as Director of the FBI, Comey signed an FBI Employment Agreement, through which he agreed to be governed by a number of provisions, including:
• An acknowledgement that all information acquired by him in connection with his official duties and all official material to which he has access to remain the property of the United States;
• An agreement to surrender, upon separation from the FBI, all materials containing FBI information in his possession;
• A commitment not “to reveal, by any means, any information or material from or related to FBI files or any other information acquired by virtue of [his] official employment to any unauthorized recipient without official written authorization by the FBI”;
• An agreement to “seek determination whether…information may be disclosed” prior to any disclosure, using the guidelines found in the FBI Manual of Administrative Operations and Procedure;
• An agreement to be bound by the FBI's guidelines governing prepublication review, with the understanding that the term “‘publication’ includes the disclosure of information to anyone by any means”; and
• An acknowledgment that these provisions are “conditions of...employment” and apply “both during [his] employment in the FBI and following termination of such employment.” In his interview with the OIG, Comey verified his signature on his FBI Employment Agreement.
3. Comey's Security Clearance History
Throughout Comey's employment at the Department of Justice, including his tenure as FBI Director, Comey held security clearances that provided him access to classified information pursuant to nondisclosure agreements (NDAs). Under the terms of these NDAs, Comey acknowledged that he had been advised about the nature of and need to protect classified information, and agreed to “never divulge” classified information to anyone not authorized to receive it unless Comey had obtained prior written authorization for the disclosure from the U.S. government Department or Agency responsible for the classification.
The NDAs that Comey signed clearly stated that “any unauthorized disclosure of classified information by me may constitute a violation, or violations, of United States criminal laws” and the NDAs referenced 18 U.S.C. § 793 and 18 U.S.C. § 1924, among other provisions. Pursuant to the NDAs, Comey also agreed that if he was uncertain about the classification status of information, it was his responsibility to consult with appropriate officials for clarification.
The NDAs also stated that all of the classified information provided to Comey during his employment “is now and will remain the property of...the United States Government unless and until otherwise determined by an authorized official or final ruling of a court of law.” Further, Comey agreed to return all classified materials “upon the conclusion of my employment,” and acknowledged that his obligation to protect classified information applied during his employment “and at all times thereafter.” During his OIG interview, Comey verified his signature on a number of NDAs he had signed during his tenure as FBI Director and at other times while employed by the U.S. government, and told the OIG he was aware of his obligations to protect classified information under those agreements. He also acknowledged that he had “an obligation, lifelong, to protect classified information.”
4. Comey's Status as an Original Classification Authority and Responsibility for Designating Classified Material
As FBI Director, Comey was one of the officials designated by the FBI as an Original Classification Authority (OCA). Comey's FBI training records show that he received initial training on his responsibilities as an OCA on January 9, 2014, and annual training most recently on March 28, 2017. Comey told the OIG that, during his tenure as FBI Director, it was often the case that he was reviewing reports that had a known classification, or replying to emails that had been classified by others.54 He said that the amount of his written work as FBI Director that involved exercising his OCA responsibility was a “distinct minority.” Other FBI witnesses confirmed that while he was FBI Director, Comey did not generate a lot of documents that required marking through use of his original classification authority. Comey told the OIG that the “essence of being an OCA is exercising a judgment about…the appropriate level of classification for the information,” and that in making such a “judgment call” he used his experience and knowledge of the content of the document he was creating to make the best judgment he could about the level of harm that might flow from unauthorized disclosure of the information. He also acknowledged that, as FBI Director, “[t]here were plenty of people [he] could ask if [he] wanted to,” and that the “resources would be available to him” to make those determinations, although he told the OIG he did not remember ever using those resources.
B. Comey’s Creation and Handling of the Memos from January 6, 2017 through May 9, 2017
Comey told the OIG that from January 6, 2017, through his removal as FBI Director on May 9, 2017, he had a total of nine one-on-one conversations with President-elect and President Trump. For seven of the nine conversations, Comey said he created written records, which are collectively referred to throughout this report as the Memos.
1. January 7, 2017 Memo (Memo 1)
Comey's first one-on-one meeting with Trump occurred on January 6, 2017, at Trump Tower as part of a briefing to the President-elect on an Intelligence Community Assessment (ICA) of Russian efforts to interfere in the 2016 presidential election. The ICA was jointly prepared by the FBI, National Security Agency (NSA), and Central Intelligence Agency (CIA), with oversight from the Office of the Director of National Intelligence (ODNI).56 According to Comey, the plan for the ICA briefing of President-elect Trump had two parts, both of which Comey said he was concerned would be “controversial and difficult conversations.” The first part of the briefing, jointly conducted by the Intelligence Community Directors, involved briefing the President-elect on the overall conclusions of the ICA. The second part of the briefing concerned notifying the President-elect of “salacious and unverified” information about Trump's alleged conduct in Moscow several years earlier.
Prior to the January 6, 2017 briefing, the FBI learned that several media outlets also had this information, and were intending to publish it. Multiple witnesses told the OIG that the Intelligence Community Directors agreed that Trump must be briefed on this information, and that the Director of National Intelligence (DNI) decided the briefing should be done by Comey “in a small group or one-on-one.” Before briefing President-elect Trump, Comey met with senior leaders of the FBI, including his Chief of Staff James Rybicki, then-FBI Deputy Director Andrew McCabe, then-FBI General Counsel James Baker, and the supervisors of the FBI's investigation into Russian interference with the 2016 presidential election. Baker and McCabe told the OIG that they raised and discussed with Comey a number of concerns about Comey meeting alone with President-elect Trump. Baker and McCabe said that they agreed that the briefing needed to be one-onone, so that Comey could present the “salacious” information in the most discreet and least embarrassing way. At the same time, we were told, they did not want the President-elect to perceive the one-on-one briefing as an effort to hold information over him like a “Hoover-esque type of plot.” Witnesses interviewed by the OIG also said that they discussed Trump's potential responses to being told about the “salacious” information, including that Trump might make statements about, or provide information of value to, the pending Russian interference investigation. That FBI counterintelligence investigation, known as “Crossfire Hurricane,” concerned whether individuals associated with the Trump campaign during the 2016 presidential election were coordinating with, or had been unwittingly co-opted by, the Russian government. Multiple FBI witnesses recalled agreeing ahead of time that Comey should memorialize his meeting with Trump immediately after it occurred. Comey told the OIG that, in his view, it was important for FBI executive managers to be “able to share in [Comey's] recall of the…salient details of those conversations.” Comey also said that an additional concern, shared by the members of his management team, was that if the briefing became “a source of controversy” it would be important to have a clear, contemporaneous record because Trump might “misrepresent what happened in the encounter.” McCabe told the OIG that, in his view, it made sense for Comey “to capture his…contemporaneous recollection” because there were “millions of ways that [the FBI] could get follow-up questions, or criticism…and [Comey] wanted to recollect exactly, from his perspective, how it had taken place.”
Comey told the OIG he began writing Memo 1 immediately following his meeting with Trump on January 6, 2017. Comey said he had a secure FBI laptop waiting for him in his FBI vehicle and that when he got into the vehicle, he was handed the laptop and “began typing [Memo 1] as the vehicle moved.” He said he continued working on Memo 1 until he arrived at the FBI's New York field office, where Comey gave a “quick download” of his conversation with President-elect Trump to Rybicki, McCabe, Baker, and supervisors of the FBI's Crossfire Hurricane investigative team via secure video teleconference (SVTC). Comey said he probably told the SVTC participants that he would send them his “detailed notes” of the interaction. Comey told the OIG he could not remember whether he completed Memo 1 on January 6, 2017, or whether he continued drafting it on January 7, 2017, before sending it through the FBI's classified email system to Rybicki, McCabe, and Baker on January 7, 2017 at 1:42 p.m. Memo 1 documented both the larger discussion of the ICA with the President-elect's national security team (regarding Russian interference in the 2016 presidential election), and the one-on-one meeting that followed between Trump and Comey (concerning the “salacious” information). Memo 1 was the only one of the Memos on which Comey placed any classification, dissemination controls, or other handling markings. Comey placed an overall classification marking of “SECRET//ORCON/NOFORN” at the top and bottom of the email. He also placed the following classification block before the substantive text of the email: Classified by: Director Derived From: FBI NSIC dated 2013030158 Declassify On: 20271231 In the email's introductory note, Comey also wrote “I am not sure of the proper classification here so have chosen SECRET. Please let me know if it should be higher or lower than that.” Comey told the OIG that he classified Memo 1 in this way because his judgment was that the information “ought to be treated…like FISA derived information or information in a [counterintelligence] investigation,” the “standard classification” for which is “SECRET//ORCON/NOFORN,” according to Comey.
Comey said he did not remember any of the email recipients responding to his question about whether Memo 1 should be classified at a higher or lower level. Comey also said he did not keep a copy of Memo 1 for himself, did not take a copy to his home, and did not share it with anyone other than the recipients listed on the email. He also told us he did not remember giving instructions to anyone to preserve Memo 1 or share Memo 1 with anyone else, and to his knowledge Memo 1 had not been shared outside the FBI. Comey told the OIG that at the time he created Memo 1, “it wasn't [his] plan to write a memo every time [he] had any meeting…with President Trump.” Comey said that, after that first meeting, he was “optimistic that [he] wasn't going to have any further encounters with the President…that were up close and personal.” Baker told the OIG that based on his experience as FBI General Counsel, one-onone meetings were “quite outside the norm of interactions between the FBI Director and a President of the United States.”
2. January 11, 2017 Telephone Call (No Memo)
Comey's Improper Disclosure of Memos 2, 4, 6, and 7 to His Attorneys Comey told the OIG that he shared copies of Memos 2, 4, 6, and 7 with his attorneys to obtain legal representation in connection with his removal as FBI Director and any post-removal legal issues that might arise. However, Comey was not authorized to provide these Memos to his attorneys without prior approval from or coordination with the FBI. As courts have made clear, a federal employee seeking legal advice does not have “carte blanche authority to disclose any and all confidential government information to the employee's attorney.”95 Rather, Comey’s interest in communicating with his counsel must be balanced against the government's legitimate interest in protecting its information and preventing disclosure of certain types of information, such as national security or Privacy Act-protected information.96 To strike this balance, courts have fashioned protective orders and required private attorneys to sign nondisclosure agreements; courts also have placed restrictions on the employee's or former employee's further distribution of government information through an attorney in order to prevent any “de facto public disclosure.”97 The United States Supreme Court has also recognized the validity and enforceability of employment agreements—like the one signed by Comey—which require a public employee to submit to the prepublication review process before making disclosures.98 By providing Memos 2, 4, 6, and 7 to his attorneys without seeking FBI approval, Comey took for himself the “carte blanche authority” expressly denied by the courts, in clear violation of the FBI's Prepublication Review Policy and the requirements of Comey’s FBI Employment Agreement.99 As a result, Comey not only disclosed sensitive law enforcement information to his personal counsel but also a small amount of information contained in Memo 2 that the FBI subsequently determined was classified at the “CONFIDENTIAL” level.
C. Comey Failed to Immediately Alert the FBI to the Unauthorized Disclosure of Classified Information
Finding Memo 2 when the FBI allowed him to review copies of all seven Memos, with classification banners and markings, in preparation for his June 8, 2017 congressional testimony. Once he knew that the FBI had classified portions of Memo 2, Comey failed to immediately notify the FBI that he had previously given Memo 2 to his attorneys.101 The FBI's Safeguarding Classified National Security Information Policy Guide clearly states that “[a]ny person who has knowledge that classified information has been or may have been lost, compromised, or disclosed to an unauthorized person must immediately report the circumstances to his or her security office.” 102 Comey violated this requirement by failing to immediately inform the FBI that he provided Memo 2 to his attorneys. The FBI did not learn that Comey had shared any of the Memos with anyone outside the FBI until Comey’s June 8, 2017 congressional testimony. During his testimony, Comey stated that he provided Memo 4 to a friend to share the contents with a reporter. Comey did not mention that he provided Memos 2, 4, 6, and 7 to each of his three attorneys. Based on Comey’s testimony, FBI leadership knew that Richman was the friend to whom Comey had disclosed Memo 4 with instructions to provide its contents to The New York Times. Baker and Strzok immediately called Richman, while Comey was still testifying, to make arrangements to retrieve Memo 4.
It was only through the FBI's conversations with Richman on June 8 or June 9 that the FBI learned of the need to retrieve classified information, contained in Memo 2, as well as other FBI records, Memos 6 and 7, from each of Comey’s three attorneys. We do not believe that Richman’s volunteering to the FBI that he and Comey’s other counsel had these other Memos, after the FBI initiated contact with Richman in an effort to retrieve Memo 4, fulfilled Comey’s obligation to immediately report his disclosure of classified information to unauthorized persons. By not immediately reporting that he had provided Memo 2 to his attorneys when Comey first learned that the FBI had designated a small portion of Memo 2 as classified at the “CONFIDENTIAL” level, Comey violated FBI policy. VI. Conclusion Congress has provided the FBI with substantial powers and authorities to gather evidence as part of the FBI's criminal and counterintelligence mission. The FBI uses these authorities every day in its many investigations into allegations of drug trafficking, terrorism, fraud, organized crime, public corruption, espionage.
VI. Conclusion
Congress has provided the FBI with substantial powers and authorities to gather evidence as part of the FBI's criminal and counterintelligence mission. The FBI uses these authorities every day in its many investigations into allegations of drug trafficking, terrorism, fraud, organized crime, public corruption, espionage, and a host of other threats to national security and public safety. In the process, the FBI lawfully gains access to a significant amount of sensitive information about individuals, many of whom have not been charged, may never be charged, or may not even be a subject of the investigation. For this reason, the civil liberties of every individual who may fall within the scope of the FBI's investigative authorities depend on the FBI's ability to protect sensitive information from unauthorized disclosure. As Comey himself explained in his March 20, 2017 testimony before the House Permanent Select Committee on Intelligence, he was unable to provide details about the nature or scope of the FBI’s ongoing investigation into Russian interference in the 2016 presidential election because the FBI is very careful in how we handle information about our cases and about the people we are investigating…. Our ability to share details with the Congress and the American people is limited when those investigations are still open, which I hope makes sense. We need to protect people’s privacy…. We just cannot do our work well or fairly if we start talking about it while we’re doing it. However, after his removal as FBI Director two months later, Comey provided a copy of Memo 4, which Comey had kept without authorization, to Richman with instructions to share the contents with a reporter for The New York Times. Memo 4 included information that was related to both the FBI's ongoing investigation of Flynn and, by Comey’s own account, information that he believed and alleged constituted evidence of an attempt to obstruct the ongoing Flynn investigation; later that same day, The New York Times published an article about Memo 4 entitled, “Comey Memo Says Trump Asked Him to End Flynn Investigation.” The responsibility to protect sensitive law enforcement information falls in large part to the employees of the FBI who have access to it through their daily duties. On occasion, some of these employees may disagree with decisions by prosecutors, judges, or higher ranking FBI and Department officials about the actions to take or not take in criminal and counterintelligence matters. They may even, in some situations, distrust the legitimacy of those supervisory, prosecutorial, or judicial decisions. But even when these employees believe that their most strongly-held personal convictions might be served by an unauthorized disclosure, the FBI depends on them not to disclose sensitive information. Former Director Comey failed to live up to this responsibility. By not safeguarding sensitive information obtained during the course of his FBI employment, and by using it to create public pressure for official action, Comey set 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. Comey said he was compelled to take these actions “if I love this country…and I love the Department of Justice, and I love the FBI.” However, were current or former FBI employees to follow the former Director's example and disclose sensitive information in service of their own strongly held personal convictions, the FBI would be unable to dispatch its law enforcement duties properly, as Comey himself noted in his March 20, 2017 congressional testimony. Comey expressed a similar concern to President Trump, according to Memo 4, in discussing leaks of FBI information, telling Trump that the FBI's ability to conduct its work is compromised “if people run around telling the press what we do.” This is no doubt part of the reason why Comey’s closest advisors used the words “surprised,” “stunned,” “shocked,” and “disappointment” to describe their reactions to learning what Comey had done. We have previously faulted Comey for acting unilaterally and inconsistent with Department policy.103 Comey’s unauthorized disclosure of sensitive law enforcement information about the Flynn investigation merits similar criticism. In a country built on the rule of law, it is of utmost importance that all FBI employees adhere to Department and FBI policies, particularly when confronted by what appear to be extraordinary circumstances or compelling personal convictions. Comey had several other lawful options available to him to advocate for the appointment of a Special Counsel, which he told us was his goal in making the disclosure. What was not permitted was the unauthorized disclosure of sensitive investigative information, obtained during the course of FBI employment, in order to achieve a personally desired outcome. The OIG has provided this report to the FBI and to the Department of Justice Office of Professional Responsibility for action they deem appropriate.
duties properly, as Comey himself noted in his March 20, 2017 congressional testimony. Comey expressed a similar concern to President Trump, according to Memo 4, in discussing leaks of FBI information, telling Trump that the FBI's ability to conduct its work is compromised “if people run around telling the press what we do.” This is no doubt part of the reason why Comey’s closest advisors used the words “surprised,” “stunned,” “shocked,” and “disappointment” to describe their reactions to learning what Comey had done. We have previously faulted Comey for acting unilaterally and inconsistent with Department policy.103 Comey’s unauthorized disclosure of sensitive law enforcement information about the Flynn investigation merits similar criticism. In a country built on the rule of law, it is of utmost importance that all FBI employees adhere to Department and FBI policies, particularly when confronted by what appear to be extraordinary circumstances or compelling personal convictions. Comey had several other lawful options available to him to advocate for the appointment of a Special Counsel, which he told us was his goal in making the disclosure. What was not permitted was the unauthorized disclosure of sensitive investigative information, obtained during the course of FBI employment, in order to achieve a personally desired outcome. The OIG has provided this report to the FBI and to the Department of Justice Office of Professional Responsibility for action they deem appropriate.
Source:
https://oig.justice.gov/reports/2019/o1902.pdf