By John Solomon - 07-09-17 20:12 PM EDT
More than half of the memos former FBI Director James Comey wrote as personal recollections of his conversations with President Trump about the Russia investigation have been determined to contain classified information, according to interviews with officials familiar with the documents.
This revelation raises the possibility that Comey broke his own agency's rules and ignored the same security protocol that he publicly criticized Hillary Clinton over in the waning days of the 2016 presidential election.
Comey testified last month before the Senate Intelligence Committee that he considered the memos to be personal documents and that he shared at least one of them with a friend. He asked that friend, a law professor at Columbia University, to leak information from one memo to the news media in hopes of increasing pressure to get a special prosecutor named in the Russia case after Comey was fired as FBI director.
"So you didn't consider your memo or your sense of that conversation to be a government document?" Sen. Roy Blunt (R-Mo.) asked Comey on June 8. "You considered it to be, somehow, your own personal document that you could share to the media as you wanted through a friend?"
"Correct," Comey answered. "I understood this to be my recollection recorded of my conversation with the president. As a private citizen, I thought it important to get it out."
Comey insisted in his testimony he believed his personal memos were unclassified, though he hinted one or two documents he created might have been contained classified information.
"I immediately prepared an unclassified memo of the conversation about Flynn and discussed the matter with FBI senior leadership," he testified about the one memo he later leaked about former national security adviser Michael Flynn.
He added, "My view was that the content of those unclassified memorialization of those conversations was my recollection recorded."
But when the seven memos Comey wrote regarding his nine conversations with Trump about Russia earlier this year were shown to Congress in recent days, the FBI claimed all were, in fact, deemed to be government documents.
While the Comey memos have been previously reported, this is the first time there has been a number connected to the amount of memos the ex-FBI chief wrote.
Four of the memos had markings making clear they contained information classified at the secret or confidential level, according to officials directly familiar with the matter.
A spokesman for the FBI on Sunday declined to comment.
FBI policy forbids any agent from releasing classified information or any information from ongoing investigations or sensitive operations without prior written permission, and it mandates that all records created during official duties are considered to be government property.
"Unauthorized disclosure, misuse, or negligent handling of information contained in the files, electronic or paper, of the FBI or which I may acquire as an employee of the FBI could impair national security, place human life in jeopardy, result in the denial of due process, prevent the FBI from effectively discharging its responsibilities, or violate federal law," states the agreement all FBI agents sign.
It adds that "all information acquired by me in connection with my official duties with the FBI and all official material to which I have access remain the property of the United States of America" and that an agent "will not reveal, by any means, any information or material from or related to FBI files or any other information acquired by virtue of my official employment to any unauthorized recipient without prior official written authorization by the FBI."
Comey indicated in his testimony that the memos were in his possession when he left the bureau, leaving him in a position to leak one of them through his friend to the media. But he testified that he has since turned them over to Robert Mueller, a former FBI chief who is now spearheading the investigation into possible collusion between the Trump campaign and Russia during the presidential race.
It is not clear whether Comey as director signed the same agreement as his agents, but the contract is considered the official policy of the bureau. It was also unclear when the documents were shown to Congress whether the information deemed secret or confidential was classified at the time Comey wrote the memos or determined so afterward, the sources said.
Congressional investigators had already begun examining whether Comey's creation, storage and sharing of the memos violated FBI rules, but the revelation that four of the seven memos included some sort of classified information opens a new door of inquiry into whether classified information was mishandled, improperly stored or improperly shared.
That was the same issue for which the FBI investigated Clinton, a former secretary of State in the Obama administration, in 2015 and 2016 under Comey. Clinton used a private email server during her tenure that at times contained classified material.
Comey ultimately concluded in July 2016 that Clinton's email practices were reckless, but that he could not recommend prosecution because FBI agents had failed to find enough evidence that she intended to violate felony statutes prohibiting the transmission of classified information through insecure practices. Clinton at the time was the Democratic nominee for president.
"Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of the classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information," he said in a decision panned by Republicans and embraced by Democrats.
Now, congressional investigators are likely to turn their attention to the same issues to determine if Comey mishandled any classified information in his personal memos.
In order to make an assessment, congressional investigators will have to tackle key questions, such as where and how the memos were created, including whether they were written on an insecure computer or notepad; where and how the memos were stored, such as inside Comey's home, in a briefcase or on an insecure laptop; whether any memos were shown to private individuals without a security clearance and whether those memos contained any classified information; and when was it determined by the government that the memos contained classified information - before Comey took them and shared one or after.
One avenue for answering those questions is for a panel like Senate Intelligence, House Intelligence or Senate Judiciary to refer the matter to the Justice Department's internal watchdog, the inspector general, or to the Office of the Director of National Intelligence and its inspector general, aides said.