Sunday, June 11, 2017

Did James Comey's "Leaking" of His Memos Violate the Law?

One of my more thoughtful Facebook friends (who is far more conservative than me) asked some very interesting questions about the leak of former FBI Director James Comey's memos to the New York Times.  In particular, he asked an interesting question:  Are the memos federal records?  Since others have gone even further to argue that the leak was a federal crime, I thought that it might be useful to discuss the issue here.

A key place to start is with guidance from the agency that is responsible for the laws governing federal records--the National Archives.  They have a very interesting discussion of the issue here.  As it discusses, writings about even work-related issues (such as diaries, memos etc.) that are intended for private use are not federal records:
Work-related materials, such as diaries, journals, notes, personal calendars, and appointment schedules, that are not prepared, received, or used in the process of transacting agency business. Although these materials contain work-related information, they are personal papers if they are claimed as such and serve only the individual's own purpose (e.g., as reminders and personal observations about work-related and other topics). This category is the most difficult to distinguish from agency records because of its work-related content.
It is not uncommon for senior officials to record their work-related activities (either for use in a future book or simply to help them personally recall what was said during a meeting the previous weeks). It is also not uncommon for employees worried about a personnel action to do memos recording their meetings with their managers.. These are generally not federal records.

 As the NARA document, discusses, however, these personal papers can be found to be federal records in certain circumstances. For example, if an official gave an employee a copy of a diary entry, and asked them to follow-up on the action items discussed in the diary, at least that part of the diary could become part of the public record. The NARA document does a good job laying out some of the factors. Some of the critical factors include purpose, distribution and use::
Purpose. Was the document created to facilitate agency business? If so, then it may be an agency record, depending on its distribution and use by other agency employees. Or was it created solely for the employee's personal convenience? If so, it is unlikely to be an agency record.
Distribution. Was the document distributed to other employees for an official purpose? If so, it may be an agency record.
Use. Did this employee or others actually use the document to conduct agency business? Materials brought into the agency for reference use do not become agency records merely because they relate to official matters or influence the employee's work. However, if the employee relies on such materials to conduct agency business or if other employees use them for agency purposes, then the materials are more likely to be agency records.
I think we need to get more information before coming to a conclusion, but I suspect that the classic CYA nature of the memos put them in the personal papers category. Here the purpose is quite consistent with that of a subordinate concerned about a meeting with his boss.  Moreover, while Comey may have distributed the memo to others in the FBI, it does not appear that they were used for FBI business.

The more interesting issue, is what are the consequences if they are federal records. Generally, the focus of federal records law is on the maintenance of records and their disclosure to the public (FOIA). There is no general prohibition against disclosure. There may be FBI policies that were violated, but as a former employee, they are of no consequence to Comey.

There is a potentially relevant criminal statute that has gotten some attention on conservative blogs (18 U.S.C 641), but it has proved to be a wholly inadequate tool for the prosecution of leakers. Indeed, the U.S. Attorney Manual pretty much dismisses the statute as useless against leakers (stating that the statue "Fails to protect the Government's interest" in protecting records) . The main problem is that a felony conviction requires that the intrinsic value of the purloined record (the cost of the paper and toner) be over $1000.  This is hardly ever the case, and certainly not the case here. Other problems include that the document seems to requires stealing of the actual "record" and under the federal records law, copies are not records--only the official original.

In short, I doubt that the Comey memos qualify as federal records.  As such, they really cannot be said to have been leaked at all.  Any even if they do qualify as federal records, an argument that Comey violated federal law in providing the contents (indirectly) to the New York Times is dubious at best.


  1. Thanks for the post , the issue , is not necessarily whether it is a federal record , this is , because of the fact , that the content of it , in more essential of course . Suppose , it was a confidential secret , would it matter ?? of course not !! The format is hardly an issue !!

    The fact is , that , only after being fired , he has published it . So , it seems that he was aware to the : at least some extent of confidentiality of such conversation .

    Here a possible relevant provision :

    18 U.S. Code § 1905 - Disclosure of confidential information generally

    " Whoever, being an officer or employee of the United States or of any department or agency thereof, any person acting on behalf of the Federal Housing Finance Agency, or agent of the Department of Justice as defined in the Antitrust Civil Process Act (15 U.S.C. 1311–1314), or being an employee of a private sector organization who is or was assigned to an agency under chapter 37 of title 5, publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined under this title, or imprisoned not more than one year, or both; and shall be removed from office or employment."

    End of quotation :

    So , the lawmaker , insist on " information " and not necessarily the format , but rather the content . One needs to look further here , this is because , if such conduct , becomes a habit and spread and routine , it may undermine the work of governance . Imagine , that any spontaneous conversation , shall raise concerns , that it may be leaked later . So , employees , officials , would be afraid to express themselves spontaneously , so , the flow of information , exchange of ideas ( especially in preliminary state or forms , as theoretical plans ) shall be undermined .

    But , more legal research is needed here of course …..


    1. This statute only addresses disclosure of trade secrets or proprietary business information and is not applicable here.

  2. What about White House staff notes? My casual understanding is that the Presidential Records Act permits of a similar analysis but with possibly different conclusions.

    1. Chris, the Presidential Records Act is far more stringent, and captures far more documents. I would need to take a look at the statute to see how it would be applied if Comey were a White House employee. When I was on the White House staff, all of my emails were automatically collected and we had to mark when we thought our emails were private (and even then the emails were reviewed to make the determination whether they needed to be stored).

  3. chuck ,

    How have you learned it ?? You don't specify !! it is stated clearly :

    " Whoever, being an officer or employee of the United States or of any department or agency thereof ..... "

    Means : any department or agency thereof . It would be relevant for, finance or trade , and not : national security for example ?? Anyway , I wanted rather to illustrate the differentiation between : information , and records ( and conduct also ) .


  4. Chuck ,

    It is by the way correct , that the titles of the chapter (18 u.s. code chapter 93 - public officers and employees ) contains mainly titles has to do with commerce and trade and alike , but , one may conclude , that also other issues in the eyes of the lawmaker ( notwithstanding the conclusive wording : " any department or agency " of the US ) here :

    18 U.S. Code § 1924 - Unauthorized removal and retention of classified documents or material

    (a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

    (b) For purposes of this section, the provision of documents and materials to the Congress shall not constitute an offense under subsection (a).

    (c) In this section, the term “classified information of the United States” means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.

    End of quotation :

    So we read clearly : The meaning of “classified information of the United States” is also related clearly to : " National security " as clearly dictated therein .

    But just to emphasize it again : I wanted mainly to differentiate between : Records ( format ) , information ( content ) and : Conduct .