With the threat this week by Trump outside attorney Marc Kasowitz to file a complaint against James Comey for his “leaks” of his own personal notes and memos about his own conversations with Donald to the press…
President Donald Trump’s personal attorney plans to file a complaint against fired FBI Director James Comey following his admission on Thursday that he gave an unclassified memo recording an encounter with President Donald Trump to a friend, and asked the friend to leak the information to the media, CNN reported.
Citing two sources with knowledge of the situation, CNN reported that the complaint, to be filed with the Justice Department Inspector General and the Senate Judiciary Committee, would center on Comey’s testimony that he told a friend to relay information from the memos to the press.
It seems to me we need to consider a refresher on exactly what a “leak” is and what it isn’t.
Generally speaking anything that a government agencies or a government employee happens to say to the press isn’t automatically a “leak”, it would be a disclosure unless that information has been assigned a security classification or has been protected under the rules of executive privilege.
Security classifications are intended to protect national security, issues related to defense or diplomacy. Information obtained by our diplomats, spies and NSA about foreign governments we like to protect simply so they can keep trusting us enough to continue to share more info in the future, and we don’t want those counties enemies to know what we know or who we got it from so that’s classified. We of course like to protect military troop movements and actions and military equipment specifications, negotiations with and information voluntarily provided by foreign governments are generally considered classified as well however technically the President can designate additional information as “classified” if he — or she — so wishes.
Abuse of that Presidential prerogative can be problematic as we saw during the Bush administration where programs that were quasi-legal such as the Bush surveillance and torture programs were hidden from public disclosure by being classified for several years.
In 2005, Human Rights Watch’s Getting Away with Torture? presented substantial evidence warranting criminal investigations of then-Defense Secretary Donald Rumsfeld and Central Intelligence Agency (CIA) Director George Tenet, as well as Lt. Gen. Ricardo Sanchez, formerly the top US commander in Iraq, and Gen. Geoffrey Miller, former commander of the US military detention facility at Guantanamo Bay, Cuba.
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Much important information remains secret. For example, many internal government documents on detention and interrogation policies and practices are still classified, and unavailable to the public. According to the American Civil Liberties Union (ACLU), which has secured the release of thousands of documents under the Freedom of Information Act (FOIA), among the dozens of key documents still withheld are the presidential directive of September 2001 authorizing CIA "black sites"—or secret prisons—as well as CIA inspector general records.[3] Moreover, many documents that have ostensibly been released, including the CIA inspector general’s report and Department of Justice and Senate committee reports, contain heavily redacted sections that obscure key events and decisions.
There are a lot of potential crimes we wouldn’t have known of if not for leaks, for example the Downing Street Memos were classified — as diplomatic information gained from a foreign government — yet they showed that the British government was aware that the Bush administration were only using “WMDs” as a pretext for going to war with Iraq.
Despite several Congressional investigations, we never learned whether President Bush knew that the justifications for the war were untrue and whether he deliberately lied to drive the country into the war.
There are many indications that he did know. The Downing Street memo officially recorded a briefing given to British Prime Minister Tony Blair in July 2002 by his top intelligence official, who had just returned from meetings in Washington, eight months before the war began. According to the memo, Blair was told that the United States had already decided to remove Saddam and that the intelligence was going to be “fixed” around the policy. At the first National Security Council meeting in 2001, two years before the United States went to war, Treasury Secretary Paul O’Neill was astonished to find that the decision to invade Iraq had already been made–the question, he said, was not whether but when. Finally, the Senate Intelligence Committee not long ago found that most of the claims made for the need to go to war were not borne out by information in the possession of US intelligence agencies.
These are all cases of classified information being illegally leaked, but also of potential crimes being exposed for the greater good. No one was prosecuted for these leaks.
In the course of this administration there have been a great many leaks of potentially classified data but in many cases those leaks have been lacking in detail and specifics. For example many of the various leaks alleging communications between Trump campaign members and associates and Russian government officials and/or intelligence have yet to specify exactly what persons were involved in these communications and what was said.
Russian Foreign minister Lavrov has said that they had communications with several in Trump’s “entourage”, which is a voluntary disclosure, but he didn’t get into details. Supporting this we’ve had reports from the NYTimes of various contacts between Trumpers and Russian Intelligence, the Guardian reported that foreign surveillance had picked up contacts between Trumpers and Russians, and Reuters cited 18 different contacts in person on via phone, which were all apparently leaks from national security personnel.
The fact we still don’t have the specifics of these contacts and conversations shows that even these people — while revealing the contacts happened — recognize the sensitivity of what was actually said as being highly classified. These are all leaks and could be potentially criminal, hence the amount of detail has been limited to also limit the legal exposure.
Reailty Winner the only person who has been lately charged with leaking — like Chelsea Manning — gave detailed and specific documents from the NSA about Russian hacking to the press. Those details, and the fact the documents were marked classified makes her ability to defend herself in this case quite problematic. NSA staff verbally describing that they have documents or recordings, without describing the specific content of those recordings are far less legally liable. They’ve just let the press know that the document exists, not what actually in it which is what is truly sensitive.
On the other hand, whether Trump had a Taco Bowl or a Big Mac breakfast this morning, whether he shouted at his staff, shouted at the Australian prime minister over a publicly known issue, or was successfully distracted from being able to tweet -— is not classified information. It’s gossip, but it’s not a “leak.” Trump may find it annoying, but it’s certainly not “criminal” — everything the President does or says isn’t classified and there are no statutes against spreading gossip.
Unlike with a private business the President’s advisors may have to sign Non-Disclosure Agreements (NDA) with the government as part of obtaining their clearance, violation of which may mean very serious jail time, but they don't sign an NDA — or a loyalty pledge — with the President personally. That's not how this works, that’s not how any of this works.
Even if the information was protected by executive ‘privilege — which under U.S. V Nixon is limited specifically to policy deliberations — there is no law that prevents someone “in the know” from sharing it with the press anyway. Executive privilege allows the executive branch to prevent congress from knowing the Presidents internal sausage making, but it doesn’t prevent the press from finding out or FOIA requests from being fulfilled.
Nixon was unable to use executive privilege from blocking the release of the “smoking gun” tape. Even President Obama was unable to block congress from accessing information regarding fast and furious by invoking executive privilege largely because that wasn’t an issue of policy, and the DOJ had already made some disclosures about it. Their claim was really about protecting the release of information that could impede ongoing criminal investigations, which is really matter of internal policy but technically not legally prohibited.
A federal judge has rejected President Barack Obama's assertion of executive privilege to deny Congress access to records pertaining to Operation Fast and Furious, a gunrunning probe that allegedly allowed thousands of weapons to flow across the border into Mexico.
U.S. District Court Judge Amy Berman Jackson ruled Tuesday that the Justice Department's public disclosures about its response to the so-called "gun walking" controversy undercut Obama's executive privilege claim.
"There is no need to balance the need against the impact that the revelation of any record could have on candor in future executive decision making, since any harm that might flow from the public revelation of the deliberations at issue here has already been self-inflicted," Jackson wrote. "The Department itself has already publicly revealed the sum and substance of the very material it is now seeking to withhold. Since any harm that would flow from the disclosures sought here would be merely incremental, the records must be produced."
So this didn’t work for Nixon when trying to withhold the tape where he gave authorization for his staff to tell the CIA to lie to the FBI about the Watergate break-in so they would back off, and it didn’t work for Obama trying to protect details about Fast and Furious — how exactly is this supposed to work for Trump when trying to punish James Comey for revealing notes of his own conversations with Trump about General Flynn and the Russia to the press?
Besides the only remedy for someone defying a claim of executive privilege by sharing the information anyway on their own — a claim that Trump hasn’t even made yet — is by firing them, and Trump already did that with Comey.
Where is the national security and military interest? Where is this a matter of confidential information that came from another government — like for example the fact ISIS may try to use a laptop bomb on various planes which was gained by an Israeli source? Nothing in Comey’s discussions with Trump involved a specific national security issue, partly because Trump never actually asked anything about what the Russians did or how they did it which would be a national security matter, but he never bothered. Instead he asked about the Michael Flynn case, and about whether Comey and FBI could make a public announcement about Trump’s status as not a [current] target of an investigation.
This was all about him, his PR and Flynn; this was GOSSIP. It may also have been bribery and obstruction to basically link the continuance of Comey’s job to his blocking the Fynn investigation and being Trump’s personal PR flack over Russia collusion.
Now Kasowitz has said that the first memo was “classified” simply because Comey said that he initially typed it out on a classified laptop, and Jonathan Turley has made a similar argument.
The problem is that Comey’s description of his use of an FBI computer to create memoranda to file suggests that these are arguably government documents. Comey admitted that he thought he raised the issue with his staff and recognized that they might be needed by the Department or Congress. They read like a type of field 302 form, which are core investigatory documents.
The admission of leaking the memos is problematic given the overall controversy involving leakers undermining the Administration. Indeed, it creates a curious scene of a former director leaking material against the President after the President repeatedly asked him to crack down on leakers.
Besides being subject to Nondisclosure Agreements, Comey falls under federal laws governing the disclosure of classified and nonclassified information. Assuming that the memos were not classified (though it seems odd that it would not be classified even on the confidential level), there is 18 U.S.C. § 641 which makes it a crime to steal, sell, or convey “any record, voucher, money, or thing of value of the United States or of any department or agency thereof.”
But Comey only did that because that was the only device he had handy at the time, and simply put the classification of the device doesn’t designate the classification of the document as I noted in this comment.
I think that Comey only used the classified laptop out of convenience — having worked on classified computer systems myself — just because a piece of data is located on a classified system doesn’t mean everything on the system is classified.
This is what the entire issue of “markings” comes in, each document on a classified system is supposed to be specifically marked with it’s classification level; unclassified, confidential, top secret and or “code word” secret. Comey’s personal notes about a private conversation would have be the former: unclassified. Also he noted during his testimony that he specifically made his subsequent notes “unclassified” from that point forward.
In order for it to be “privileged” the White House counsel Dan McGahn would have to exert that privilege prior to his testimony, which they didn’t. Kasowitz is not the person authorized to claim executive privilege, McGahn is. He’s a personal lawyer, not a government lawyer, and Trump can’t claim person privilege because Comey’s not his personal lawyer either.
Comey also said during his testimony that he made all his notes “Unclassified” which could easily include the first memo which was original recorded on a classified laptop. When you’re dealing with what is called “White World” (Unclassified) data and “Black World” (Classified) data, devices in the black world can never be physically or electronically linked to the White World. In short, that laptop couldn’t have had an open internet connection or email capability to the unclassified world, but it could be used to log into a secure network and that network could have a printer.
It’s not illegal to print an unclassified document from a classified system and then share it as you see fit. When I held a TS/SCI clearance I did it all the time, because there’s nothing wrong with that in the least. I still probably have stacks of old unclassified printouts from my old job laying around in the garage as I type this right now.
The argument that Turley makes about not being allowed to “sell” government assets or documents assume that the document is property of the government, and just as our articles here legally belong to us as the authors — not to Dailykos simply because we’re using their platform — the same is true of articles, notes or memos written by Comey even if he used government hardware and/or software to do it. Unless Comey had a “work-made-for-hire” agreement with the government, or he used and submitted his memo on official government 302 forms, the documents belong to him. Under copyright law they are his.
Even if he did use 302 forms and filed them into the DOJ system, as he specifically stated under oath those documents were entered as “Unclassified” by design. So still, he could print them, email them, or copy them from his government system and take them anywhere he wanted to.
Also Comey didn’t sell anything, he gave it away.
There’s literally nothing about Kasowitz’s complaint that has any validity or weight to it. It’s pretty much “Weak Tea.”
“Let’s admit it’s been very successful because it’s what we’re talking about now, and not what Mr. Comey said about the president,” Williams began.
Digging into the substance of the complaints, however, Williams found little that could actually damage Comey for his testimony. Specifically, Williams called the complaint that is set to be filed with Department of Justice’s Office of the Inspector General “somewhat quixotic” because when Comey sent a memo out to his friend to leak it to the media, he was no longer working with the government.
“Now arguably, when Mr. Comey was still in the government, he took the memo home, but if that’s a sum and substance of the DOJ Inspector General’s investigation, that would be pretty weak tea,” he explained.
This complaint is a distraction, a diversion and in the short term it may work — but in the long term it’s likely to backfire once it all falls apart under closer inspection.
What Comey has done here is blown the whistle on Trump, nothing more, nothing less.
