Jurisprudence

My Theory About the Number of Memos Comey Gave His Friend Was Wrong

Former FBI Director James Comey poses for photographs as he arrives to speak about his  book 'A Higher Loyalty: Truth, Lies, and Leadership' in New York City.
Former FBI Director James Comey poses for photographs as he arrives to speak about his book A Higher Loyalty: Truth, Lies, and Leadership in New York City.
Drew Angerer/Getty Images

On Thursday, the Justice Department sent Congress James Comey’s contemporaneous memos documenting his conversations with President Donald Trump, and those memos were then obtained by the press. The documents seemed to offer previously unreported details that might be embarrassing for the president, which made it difficult to understand why Republicans in Congress were so eager to publicize them.

What might the GOP have been thinking? I theorized that Republicans in Congress wanted to use the memos to show Comey had leaked classified documents. In January, Senate Judiciary Committee chairman Chuck Grassley wrote the following in a letter to Deputy Attorney General Rod Rosenstein:

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.” 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. Professor Richman later read a portion of one of the memos to a New York Times reporter.

I noted that Grassley’s source appeared to be a story by Fox News’ Brooke Singman, who reported in July that Richman had told her he’d received four memos from Comey, and that there were “none marked” as classified. I speculated that perhaps Richman had meant four pages rather than four memos, given that four of the pages in two of the documents released on Thursday were clearly marked unclassified.

I now believe my speculation about the number of documents handed over was incorrect and that Singman was right. On Friday, Singman stood by her reporting that Richman received four memos from Comey. The Wall Street Journal also reported on Friday that Comey had given Richman four memos, according to “people familiar with the matter.” Finally, I was also able to independently confirm from a source familiar with the matter that Comey gave Richman four separate memos.

The source told me that Richman was engaged as Comey’s counsel at the time he received those four memos. (Comey has also said publicly that Richman was “acting as his lawyer” at the time.) According to the Journal’s report on Friday, three of the memos Comey gave to Richman “were considered unclassified at the time and one was classified.” The Journal also reported that one of the three memos that Comey had “determined at the time … contained no classified information” has since been reclassified as “‘confidential,’ the lowest level of classification.” So, per the Journal, Comey gave Richman two memos that are now considered classified: one that was classified at the time but was redacted by Comey to remove elements “he knew to be classified,” and one that was marked as classified later.

My source confirmed that Comey gave Richman two memos that later were deemed to contain classified information, and he said that both of the memos are now considered “confidential”—the lowest level of classification. The source, however, said that none of the information given to Richman was classified at the time Comey handed it over.

Regardless of whether the material Comey gave Richman was classified at the time, or was classified later, the fact remains that Singman’s reporting about the number of documents Comey handed over to Richman was correct and my theory about that was wrong.