Comey’s Notes and the Wages of the Special Counsel Investigation

The editors of the Wall Street Journal detail a controversy brewing in Congress over James Comey’s private memos. We use “private” here in the sense that these are memoranda the former FBI director wrote to himself. They are not “private” in the sense of belonging to Comey; clearly, they are government records of FBI business.

I would wager, moreover, that significant parts of the memos may be classified: Recall the Obama Justice Department’s prosecution of former CIA director David Petraeus. That case centered on journals that General Petraeus had kept when he was commanding American and allied military forces. According to the Justice Department’s outline of the case against Petraeus, his diaries contained highly classified information, including notes of the general’s conversations with the president of the United States. Although Petraeus was under no obligation to make these notes, and although they were clearly (and quite properly) intended for his own use, they were obviously not his property. They related to government business, were thus government files, and -- to the extent they contained classified information -- were required to be retained in a repository designed to protect such materials.

The Senate Judiciary Committee, in conjunction with its Subcommittee on Crime and Terrorism, has issued a letter asking Comey to answer a series of questions. These include questions about his memos. Based on a New York Times report, we know only of a snippet of one such memo, said to detail a meeting between the former director and the president. Trump, it is related, expressed hope that the FBI would drop an investigation of former National Security Adviser Michael Flynn.

The Times indicated that Comey may have written many more memos-to-self. The Judiciary Committee letter asks him to provide copies of any such memos he has retained.

The former director is said to have refused, rationalizing that he is now a private citizen and need not comply.

To be sure, we are not talking about a subpoena, which is a lawful demand for production of evidence; the committee’s letter is a request for voluntary cooperation. Nevertheless, the Journal has a point when it argues that Comey, who has voluntarily agreed to appear before the Senate Intelligence Committee in highly anticipated testimony on Thursday, should not be able to pick and choose which committees he will indulge and which requests he will entertain.

Naturally, the question arises as to whether Comey is the only source the Judiciary Committee can turn to for the information it seeks. Since any such memos are FBI property, one would think the committee could seek them directly from the FBI and the Justice Department (of which the FBI is a component agency).

Moreover, if Comey is stymying the committee, one might think the Trump administration would want to intervene. Since the president appears to be at odds with the former FBI director over what was said in their various conversations, it could cast the president in a favorable light were he to direct the Justice Department to cooperate with all congressional committees regarding the production of documents.