Comey Memos to Remain Secret, Judge Orders

WASHINGTON (CN) – The memos penned by former FBI Director James Comey about his conversations with President Trump will remain secret for now, a federal judge ruled Friday.

U.S. District Judge James Boasberg wrote in a 25-page ruling that he agreed with the government that disclosing them would harm Special Counsel Robert’s Mueller’s ongoing investigation of links between the Trump campaign and Russia.

“As it prevails here, the Comey Memos, at least for now, will remain in the hands of the Special Counsel and not the public,” the ruling states.

The memos reportedly detail nine conversations Comey had with President Trump, which included the president allegedly requesting Comey’s loyalty and pressuring him to drop an investigation into Michael Flynn, Trump’s former national security adviser.

The ruling from Boasberg came in response to consolidated Freedom of Information Act lawsuits from media organizations, including CNN, along with advocacy groups that sought disclosure of the memos.

Charles Tobin with Ballard Spahr did not respond to an email seeking comment on the ruling sent after business hours. The FBI and Department of Justice likewise did not respond to emails seeking comment.

The news organizations and advocacy groups argued that since Comey stated publicly that he created the memos for political purposes to preserve the integrity of the FBI, the agency can’t exempt them from disclosure.

Citing Supreme Court precedent in John Doe Agency v. John Doe Corp., Boasberg said it “matters not” that Comey created the memos for another purpose because they have since been incorporated for law enforcement purposes, protecting them from disclosure under FOIA exemption 7(A).

The FBI easily clears that bar, the ruling says, noting that Comey said during his June 8 testimony before the Senate Intelligence Committee that he had turned the memos over to Special Counsel Robert Mueller’s team.

That matters because the agency would have had to compile the documents as part of the Russia probe before it invoked the FOIA exemption on June 16.

According to the ruling, the government submitted an ex parte declaration from David Archey, a counterintelligence expert who stated that Mueller’s team had in fact compiled the memos for the investigation prior to that date.

Boasberg also revealed that an attorney from the Office of Special Counsel provided an on-the-record proffer about the Russia probe.

“Having heard this, the Court is now fully convinced that disclosure ‘could reasonably be expected to interfere’ with that ongoing investigation,” the ruling states.

Boasberg also shot down arguments from the news organizations and advocacy groups that Comey’s public discussion about the contents of the memos during his congressional testimony constitute official disclosure, and therefore render them immune from any FOIA exemption.

“In any event, Comey no longer served as FBI Director when he testified and therefore lacked any authority to make official releases on that agency’s behalf,” Boasberg said.

Boasberg also refuted their argument that the memos are public because Comey acknowledged giving a copy of one of them to his friend, presumed to be Daniel Richman, a Columbia Law School professor.

“The Court acknowledges that this situation is rather unprecedented; it is not every day that an FBI Director feels the need to memorialize his conversations with a sitting President and then publicize that he did so,” the ruling says.

But emails released to Lawfare by the FBI in response to Freedom of Information Act requests show that the agency was shocked and saddened by the firing of Comey.

The emails were released to Lawfare contributor Benjamin Wittes, a personal friend of Comey’s, and undercut the White House narrative that the FBI was in turmoil and that Comey had lost the support of the FBI’s rank and file.

The 103 pages of emails detail communications from FBI leaders about Comey’s abrupt firing that were sent to entire divisions and field offices.

One example shows that special agent Charles Spencer in charge of the FBIs Jacksonville division called Comey’s firing surprising, and that he spoke highly of Comey in a message dated May 10, 2017.

“Director Comey was a man of integrity and vision, he made a lasting impact on FBI leadership, diversity and our embracing of new technology,” Spencer wrote.

Wittes obtained the emails in response to four Freedom of Information Act requests filed with the FBI on June 22.

 

 

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