Grassley Presses Justice Department about Classification of Comey Memos
WASHINGTON – Senate Judiciary Committee
Chairman Chuck Grassley is today raising questions about when the memos
memorializing interactions between former FBI Director James Comey and
President Trump were classified and the chain of custody for the classified
memos.
After a review of the seven
memoranda created by former Director Comey, it is now clear that four are
marked classified at various levels of sensitivity. Former Director Comey
reportedly provided copies of four memos to Columbia Law School Professor Alan
Richman. If true, that would mean at least one disclosed memo contained
information now-marked classified.
In his letter to Deputy Attorney
General Rod Rosenstein, Grassley asks about the chain of custody of the memos,
when they were marked classified and by whom. Grassley also asks what steps the
Justice Department has taken to determine if any classified information was
provided to Professor Richman and whether such a disclosure violated department
rules or policy.
Full text of Grassley’s letter to Rosenstein follows.
January 3, 2018
The
Honorable Rod J. Rosenstein
Deputy
Attorney General
U.S.
Department of Justice
950
Pennsylvania Avenue, N.W.
Washington,
D.C. 20530
Dear
Deputy Attorney General Rosenstein:
This
Committee has previously written to the Department of Justice and the Federal
Bureau of Investigation about the memoranda that former Director Comey created
purportedly memorializing his interactions with President Trump.[1] My staff has since reviewed these
memoranda in a Sensitive Compartmented Information Facility (SCIF) at the FBI,
and I reviewed them in a SCIF at the Office of Senate Security. The FBI
insisted that these reviews take place in a SCIF because the majority of the
memos are classified. Of the seven memos, four are marked classified at the
“SECRET” or “CONFIDENTIAL” levels. Only three did not contain classified
information. FBI personnel refused to answer factual questions during the
document reviews, including questions about the chain of custody of the
documents I was reviewing, the date that they were marked classified, and who
marked them as classified.
According
to press reports, Professor Daniel Richman of Columbia Law School stated that
Mr. Comey provided him four of the seven memoranda and encouraged him to
“detail [Comey’s] memos to the press.”[2]
If it’s true that Professor Richman had four of the seven memos, then in light
of the fact that four of the seven memos the Committee reviewed are classified,
it would appear that at least one memo the former FBI director gave Professor
Richman contained classified information.[3]
Professor Richman later read a portion of one of the memos to a New York Times
reporter.[4]
When
the Committee contacted Professor Richman seeking copies of the memos Mr. Comey
had provided him, he refused to provide them, did not say how many he had
received from Mr. Comey, and refused to say whether he retained copies.[5] It is unclear whether any of the
memos reviewed by the Committee were retrieved from Professor Richman. The
Committee has accordingly not determined which of the seven memos Mr. Comey
provided him. Professor Richman did tell Committee investigators that he was
working with the Special Counsel’s Office, and he reportedly told the media
that he had turned over to the FBI copies of the memos he’d received from Mr.
Comey.[6] If true, the Justice Department
should know which memos were provided and be able to share that information
with the Committee.
In
order for the Committee to further assess this situation, please respond to the
following in writing by no later than January 17, 2018:
1.
Has
the Justice Department or FBI in fact determined that any of the memoranda Mr.
Comey sent Professor Richman contained classified information? If so, what
steps were taken to retrieve and safeguard the information?
2. Which of the seven memoranda the
FBI made available for the Committee’s review did Mr. Comey give to Professor
Richman?
a. When did Mr. Comey give
Professor Richman the memoranda?
b. At the time that Professor
Richman received the memoranda, were any marked as classified?
c. At the time that Professor
Richman received the memoranda, did any contain classified information,
regardless of markings?
d. Please explain the method by
which Mr. Comey transmitted the memoranda to Professor Richman. If the
transmittal was electronic:
i.
Please
provide the account information that Mr. Comey and Mr. Richman used.
ii.
Please
describe what steps the FBI has taken to recover all copies of any classified
memoranda that might reside on computers, servers, or at other locations.
3.
Have
you initiated an investigation into the matter of whether Mr. Comey improperly
disclosed classified information by providing these memoranda to Professor
Richman? If so, what is the status of the investigation? If not, why not?
4.
Has
there been any review of whether the disclosure of the memoranda by Mr. Comey
was otherwise improper, such as whether it violated his employment agreement or
any Department rule or policy? If so, what is the status of the review? If not,
why not?
5. When did the FBI mark the four
memoranda as classified, and who made the classification decision?
6. As noted above, it has been
reported that Professor Richman returned the memoranda to the FBI.[7] If so, on what date did this occur?
7. Did anyone from the FBI or
Special Counsel’s Office discuss with Professor Richman this Committee’s
request for copies of the memos? If so, please provide all records related to
any such communications.
8. Does Professor Richman still
have possession of any of the memoranda or copies?
Thank you for your prompt attention to
this matter. Please contact Patrick Davis of my Committee staff at (202)
224-5225 if you have any questions.
Sincerely,
Charles E. Grassley
Chairman
Committee
on the Judiciary
cc:
The Honorable Dianne Feinstein
Ranking
Member
Committee
on the Judiciary
-30-
[1] Letter
from Hon. Charles E. Grassley, Hon. Dianne Feinstein, Hon. Lindsey Graham, and
Hon. Sheldon Whitehouse, Senate Judiciary Committee, to Acting Director Andrew
McCabe, Federal Bureau of Investigation (May 17, 2017).
[2] Comey
Memos Reportedly Had Classified Info, Fox
News (July 10, 2017) (“Richman told Fox News he received four memos from
Comey”),
http://www.foxnews.com/politics/2017/07/10/comey-memos-reportedly-had-classified-info-trump-says-that-is-so-illegal.html;
Kyle Cheney, Comey Associate Has Been in Contact with Senate Judiciary About
Memos, Politico (June 10, 2017),
https://www.politico.com/story/2017/06/09/comey-memos-senate-judiciary-dan-richman-239378.
[3] Professor
Richman has stated that none of the memos were marked as classified when he
received them. See Jake Tapper, Comey Friend: No Memos Given to Me
Were Marked Classified, CNN (July 10, 2017),
http://www.cnn.com/2017/07/10/politics/comey-lawyer-no-memos-given-to-me-were-marked-classified/index.html.
However, as former Director Comey himself has stated: “even if information is
not marked ‘classified’ in an email, participants who know or should know that
the subject matter is classified are still obligated to protect it.” See FBI
National Press Office, Statement by FBI Director James B. Comey on the
Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System
(July 5, 2016),
https://www.fbi.gov/news/pressrel/press-releases/statement-by-fbi-director-james-b-comey-on-the-investigation-of-secretary-hillary-clinton2019s-use-of-a-personal-e-mail-system.
So, if Mr. Comey failed to mark his memos as classified, but should have known
that the subject matter was nonetheless classified, he still had an obligation
to protect that information from improper disclosure.
[4] Brian
Ross & James Gordon Meek, Comey Associate Denies Leaked Memos Contained
Classified Information, ABC News
(July 10, 2017),
http://abcnews.go.com/Politics/comey-associate-denies-leaked-memos-contained-classified-information/story?id=48551818.
[5] See
Letter from Hon. Charles E. Grassley, Hon. Dianne Feinstein, Hon. Lindsey
Graham, and Hon. Sheldon Whitehouse, Senate Judiciary Committee, to Professor
Richman (June 8, 2017). Professor Richman declined to provide the memos and
refused to state whether he retained copies during a call on June 13, 2017,
with Committee investigators. On October 18, 2017, the Committee requested that
Professor Richman participate in a voluntary transcribed interview with
Committee staff. Through his attorney, he refused.
[6] Kyle
Cheney, Comey Associate Says He Turned over Memos to the FBI, Politico (June 13, 2017),
https://www.politico.com/story/2017/06/13/james-comey-daniel-richman-memos-fbi-239502.
[7] Id.
