Update, April 20, 2018, at 8:15 p.m.: This post advanced the theory that Fox News might have mischaracterized the number of memos James Comey gave professor Daniel Richman. According to subsequent reporting in the Wall Street Journal along with Slate’s own reporting, Fox News’ reporting appears to be correct.
Original post: On Thursday, the Department of Justice handed James Comey’s contemporaneous memos of his conversations with President Donald Trump over to Congress. They were immediately revealed to the press.
Among other highlights, the documents showed:
• Comey’s Senate testimony, the story in his book, and the interviews he’s given during his publicity tour describing the details of conversations he had with Trump hew incredibly closely to what he wrote at the time of the conversations themselves.
• During a previously unreported Feb. 8, 2017, conversation with Trump—which had been recorded in a classified memo—the president allegedly said to him that Vladimir Putin had personally told Trump, “We have some of the most beautiful hookers in the world.” This statement was allegedly made in front of former chief of staff Reince Priebus.
• According to that classified memo: Prior to that conversation, Priebus met Comey in his office and allegedly asked him if they were having a “private conversation.” He then asked him: “Do you have a FISA order on Mike Flynn?” Priebus, it should be noted, was seeking information about a criminal probe that would be useful to any of Flynn’s potential confederates.
None of this actually seems to be good for Trump. Which is why it’s so odd, as Business Insider’s Josh Barro noted on Twitter, that House Republicans had gone to such enormous lengths to pressure Deputy Attorney General Rod Rosenstein to reveal the memos:
Some House Republicans had gone so far as to threaten Rosenstein with impeachment if he didn’t release the memos. (His reason for not wanting to do so seems to have been a legitimate desire not to break long-standing protocol by revealing the details of an ongoing investigation.)
Ultimately, there were only two substantive things that Republicans could seem to affirmatively point to from the memos, which were highlighted in a joint press release from Republican chairmen of the three relevant House committees. First was the fact that Comey never explicitly said in the memos: “Trump obstructed my investigation.” This is not something Comey ever claimed to have written, nor is it actually evidence of anything. Second, the press release argued that the “cloud” Trump wanted to clear up was a cloud surrounding the “pee tape” and not the Russia investigation itself. That interpretation is debatable, but again doesn’t seem like a particularly positive bombshell that would bolster Trump.
Again, the question remains: Why would they want to reveal the “Trump told Comey about Putin’s personal hooker recommendation” and “Reince Priebus privately sought investigatory details about Mike Flynn” stories in order to get those two tidbits out?
One ungenerous theory would be that they wanted the details of the investigation revealed to potential witnesses in special counsel Robert Mueller’s probe—such as Priebus and the president himself—in order to help protect these witnesses from lying to investigators. I don’t believe this is the reason. Given that Priebus has already been interviewed and that Trump’s legal team has indicated in recent days that he won’t submit to an interview, this wouldn’t actually seem to accomplish much.
There’s a second theory, though, that I believe makes much more sense.
Since the start of the year—but particularly since the start of the book tour—Republicans have suggested that the memos Comey had leaked were actually classified documents and that he had perjured himself about this in Senate testimony. This was the only actual substantive “lie” that White House press secretary Sarah Sanders was able to point to last week when she was asked to justify the Republican campaign calling him a liar. “Even the media has reported that officials have determined that Comey leaked four memos—at least four that we know about—with classified information,” Sanders said. (This gets a bunch of alleged facts wrong, but see below to understand what Sanders likely was trying to say.)
On Wednesday, 11 Republican congressmen went so far as to refer a case to the Justice Department, alleging that Comey had leaked these classified documents and then lied about it to Congress.
The letter said:
In light of the fact that four of the seven memos [documenting conversations with Trump] were classified, it would appear that former Director Comey leaked classified information when sharing these memos with Professor [Daniel] Richman. Accordingly, we refer James Comey to DOJ for potential violation(s) of: 18 USC 641, 18 USC 793, and 18 USC 1924 (a).
What was the basis for saying Comey had leaked four memos—some of them classified in a way that would make such leaks illegal—to Richman? The criminal referral cited a letter from Senate Judiciary Committee Chairman Chuck Grassley that was released in January.
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.
Where did Grassley get the notion that Richman said Comey gave him four memos, indicating at least one was classified? Grassley’s letter cited a July 10 Fox News report titled “Comey Memos Reportedly Had Classified Info; Trump Says ‘That Is so illegal.’ ” In it, Richman is quoted as saying this:
“No memos were given to the press, and no memos were classified at the time I received them,” Richman told Fox News, explaining that the “substance” of one memo was given to the press but not the physical document.
“That was not classified at the time, and remains unclassified,” he said.
Richman told Fox News he received four memos from Comey, all of which were not marked.
(Update, Friday April 20, 8:15 p.m.: The following theory about Fox News’ reporting appears to be incorrect.) Notice how Richman explicitly said none of the memos he received were classified and that they remained unclassified? And notice how that portion was in quotes. Now, notice how the part about Richman receiving “four memos” was not in quotes, but rather Fox News’ description of what it says the organization was told?
Now: In the documents released on Thursday, there were two memos with the header “UNCLASSIFIED // FOUOU” on them, both of which overlap with what had been reported in the New York Times and in Comey’s testimony. The number of pages in those two unclassified documents: four. (There was also a third single-page, one-paragraph document that was also marked unclassified, a March 1, 2017, email.)
I reached out to Richman on Thursday to ask him if those four unclassified pages were what he had received—and all that he had received—from Comey, but had not heard a response as of publication time.
This all ultimately seems to explain why House Republicans were so eager to get these memos into the public. It seems as though they thought the memos would prove Comey had illegally leaked classified information and lied about it. It seems as though they were basing this entirely on a bit of contradictory—and likely inaccurate—Fox News reporting. And it seems that this contradictory, likely inaccurate reporting was done by Fox News to help validate this Donald Trump tweet, which was sent two days after Comey’s Senate testimony:
Finally, it seems that the memos released prove the exact opposite: The apparently leaked documents were never and still aren’t classified.
Ultimately, this is likely why on Thursday night we learned that Putin was allegedly discussing Russian hookers with Trump, that the president appears to have been obsessed with the pee tape to a previously undisclosed degree, and apparently had his chief of staff ask the FBI director if Mike Flynn was being bugged.
In the likely event that there are more rakes out there in this investigation, House Republicans should think very carefully about where they step next.