Donald Trump Wanted Jim Comey Prosecuted for Bringing Government Documents Home

In the wake of news that Trump:

  • Ripped up documents
  • Flushed documents
  • Took classified documents home

A number of people are making the obvious comparison between his attacks on Hillary, especially his ceaseless efforts to increase her legal jeopardy, and his own criminal exposure. Those comparisons are most important to raise, in my opinion, with the journalists who chased that story relentlessly at Trump’s behest in 2016 but who have already dismissed the interest of this.

Some have made the comparison with attacks on Speaker Pelosi for tearing up one of Trump’s State of the Union speeches.

But there’s a third comparison to keep in mind: the DOJ Inspector General investigation of Jim Comey for taking home his memos documenting Trump’s corruption.

As CNN describes it, some of the most obvious immediate exposure Trump would have would be under 18 USC 2071 (which, auspiciously, prohibits someone from holding office).

Legal experts tell CNN that any unauthorized retention or destruction of White House documents raises a red flag under a criminal law that prohibits the removal or destruction of official government records.

But for a charge like this to fly, prosecutors would need to show that Trump had “willfully” violated the law — a high bar, though one that prosecutors could potentially meet given the frequent efforts within the White House to try to preserve records Trump would habitually mutilate.

Furthermore, other criminal laws could come into play as well, if an investigation by the Justice Department progresses.

“If the intent was ‘Let me get these documents taken out of the way because they could look bad, they could be damning for me in an investigation, in a lawsuit,’ then you’re talking about potential obstruction of justice. So the devil will be in the details here,” said CNN legal analyst Elie Honig.

Though for once I agree with TV Lawyer Elie Honig that, depending on what Trump took and why, it could be a basis for obstruction charges.

But Trump has done more than make his willfulness obvious with his habit of ripping up Presidential Records.

He also wanted Jim Comey to be prosecuted for doing just what he did.

An investigation into Comey’s treatment of the memos he wrote documenting Trump’s efforts to halt the Russian investigation concluded that Comey had violated his employment agreement by bringing the memos home.

Comey’s actions with respect to the Memos violated Department and FBI policies concerning the retention, handling, and dissemination of FBI records and information, and violated the requirements of Comey’s FBI Employment Agreement. Below, we discuss these violations.

1. Comey Failed to Return Memos 2, 4, 6, and 7 after Being Removed as FBI Director

Comey violated Department and FBI policies, and the terms of his FBI Employment Agreement, by retaining copies of Memos 2, 4, 6, and 7 after he was removed as Director, regardless of each Memo’s classification level. As a departing FBI employee, Comey was required to relinquish any official documents in his possession and to seek specific authorization from the FBI in order to personally retain any FBI documents. Comey failed to comply with these requirements.

Under Department of Justice Policy Statement 0801.02, Removal of and Access to Department of Justice Information, the Department “owns the records and information…captured, created, or received during the conduct of official business.”87 Likewise, the FBI designates all official records and material as “property of the United States” and requires departing employees to “surrender all materials in their possession that contain FBI information…upon separation from the FBI.”88 This policy is reiterated in Comey’s FBI Employment Agreement, which specifically states that he was required to surrender, upon termination of his employment, any materials in his possession “containing FBI information.”

A Department employee who wants to retain Department records or information after their employment ends must make a written request, receive approval from the appropriate official, and execute a nondisclosure agreement.89 As the FBI Director and Head of a Department Component, Comey was required to apply for and obtain authorization from the Assistant Attorney General for Administration to retain any FBI records after his removal. 90

Comey violated these Department and FBI policies by failing to surrender his copies of Memos 2, 4, 6, and 7 upon being removed as FBI Director and by failing to seek authorization to retain them. Comey’s explanation for his conduct was that he considered the Memos to be personal records, but for the reasons previously described, this assertion is without any legal basis. In view of the clarity of relevant provisions of law, policies, and Comey’s Employment Agreement, the assertion that the Memos were personal records was not reasonable. We found it particularly concerning that Comey did not tell anyone from the FBI that he had retained copies of the Memos in his personal safe at home, even when his Chief of Staff, the FBI’s Associate Deputy Director, and three SSAs came to Comey’s house on May 12, 2017, to inventory and remove all FBI property.

87 DOJ Policy Statement 0801.02, § I. The only items that departing employees may remove without Department permission are “[p]ersonal materials or information, in any format, that is not related to the business of the Department”; copies of any unclassified information that has officially been made public; and a copy of the employee’s email contacts. Id. Comey’s Memos were not within any of these categories.

88 Prepublication Review PG, § 1.1.

89 DOJ Policy Statement 0801.02, § II.A.

90 DOJ Policy Statement 0801.02, § III.B.

It further faulted Comey for not informing the Bureau that he had shared the memos with his attorneys after they informed him they had retroactively classified the memos.

On June 7, 2017, Comey learned of the FBI’s classification decision regarding Memo 2 when the FBI allowed him to review copies of all seven Memos, with classification banners and markings, in preparation for his June 8, 2017 congressional testimony. Once he knew that the FBI had classified portions of Memo 2, Comey failed to immediately notify the FBI that he had previously given Memo 2 to his attorneys.101

The FBI’s Safeguarding Classified National Security Information Policy Guide clearly states that “[a]ny person who has knowledge that classified information has been or may have been lost, compromised, or disclosed to an unauthorized person must immediately report the circumstances to his or her security office.” 102 Comey violated this requirement by failing to immediately inform the FBI that he provided Memo 2 to his attorneys.

Comey was referred to the FBI (which is standard).

The OIG has provided this report to the FBI and to the Department of Justice Office of Professional Responsibility for action they deem appropriate.

And predictably, Trump complained that Comey would not be prosecuted as a result.

The fact that James Comey was not prosecuted for the absolutely horrible things he did just shows how fair and reasonable Attorney General Bill Barr is. So many people and experts that I have watched and read would have taken an entirely different course. Comey got Lucky!

Bryan Dean Wright, former CIA Officer(Dem): “In 2016 we had a Coup. We have to take Comey and others to task. Makes no sense not to prosecute him. Comey got a book deal. I fear for my Country. He tried to kneecap our duly elected president, and there are no consequences.” @fox&amp,Fs

“They could have charged Comey with theft of government documents, 641 of the Criminal Code, because the IG found these were not his personal documents, these were government documents.” @GreggJarrett “Comey’s claim that these were just his own personal recollections would not..

“The IG found that James Comey leaked Classified Documents to his attorneys, which can be (is) a violation of the Espionage Act. This is consistent with all the lies that Comey has been spreading. @GreggJarrett @ByronYork @LouDobbs

So they now convict Roger Stone of lying and want to jail him for many years to come. Well, what about Crooked Hillary, Comey, Strzok, Page, McCabe, Brennan, Clapper, Shifty Schiff, Ohr &amp, Nellie, Steele &amp, all of the others, including even Mueller himself? Didn’t they lie?….

To be fair, Comey also shared one of his memos with Daniel Richman (though that one did not include classified information), which was also included in the report’s findings.

Still, Trump endorsed the idea that Comey be prosecuted for theft of government documents or even the Espionage Act.

And then, having done that, Trump took a number of Top Secret documents with him when he left.

This is, at one level, just more Trump hypocrisy.

But it is also proof he was aware of — and claimed to adhere to — the rules prohibiting taking documents home.

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65 replies
  1. Peterr says:

    Marcy, Marcy, Marcy . . .

    Yes, Trump learned that these rules existed. But more importantly, Trump learned from the Comey episode that there is no real penalty for taking docs like these home. “But Comey did it, and he didn’t get in trouble!”

    /s

    • Leoghann says:

      And what makes it worse is that Comey did “horrible things,” and Trump is an American Hero. /s

      Seriously, though, the fact that the memos were classified after Comey left is an obvious sticking point with his prosecution.

    • Ann Brown says:

      Didn’t the govt retroactively classify some of Hillary Clinton’s emails to make her look negligent? Long time lurker here, huge fan, thanks so much for all you do.

    • Rugger9 says:

      Well, duh. I have no doubt that once the DoJ attorneys realized that when COmey took these home that they were not classified they knew that prosecution would be out of the question. While Comey has several other reasons to be in our core group’s doghouse this is not one of them.

      Fun factoid: among the first examples of classification were docs apparently done to cover up government culpability in a plane crash.

      Trump’s situation was different in that his cache included documents that were already identified as classified, some at levels requiring SCIF storage with the attendant protocols for accounting and sign out. That makes the dates of transport very important because DJT could just claim it’s another variant of the nuclear codes football that would be near him while in office.

      Does anyone know whether Mar-A-Lago or Bedminster or the other Trump Org properties had SCIF-level facilities and document control? Even if DJT transported the docs within his executive time EW has shown clearly that once Biden was sworn in DJT was obligated to return all of it for Archivist review. The hypocrisy is a standard calling card.

      • rip says:

        I don’t know if Mar-A-Lago had a SCIF-capable storage (I doubt it), but that type of document control also involves a lot of administrative oversight (personnel, functional reporting) that we know wouldn’t have been maintained by Trump or his crowd.

        This type of facility has very strong defenses against eavesdropping (certified containers, faraday cages, monitoring of any communication channels, etc.) These would not have been part of Trump’s MO.

      • P J Evans says:

        I recall a friend telling me about a (non-classified) project he was working on that was in a classified area – the doors were labeled “Mosler”, he said.
        (He’d also worked in other areas where he had to be escorted because he wasn’t cleared. He wanted a kiddie-type fireman hat with a flashing red light, but did get a cowbell. “Uncleared! Uncleared!”)
        Yes, he knew about Tempest-type terminals.

    • Doug says:

      So he classified the evidence, and then tried to gin up an espionage charge against Comey. It’s so Trump!

      [Welcome back to emptywheel. This is a second request. Please use the same username each time you comment so that community members get to know you. This is your second user name; your previous comments have published under username “Doug C” and “Lemoco.” Thanks. /~Rayne]

  2. Pete T says:

    I gotta think/hope that, if true, some of the documents being Classified if not also Top Secret would make a differences. But perhaps intent is part of the classification of the documents as well.

    I mean Comey’s contemporary notes must be a tad less egregious than something potentially Top Secret.

    • Peterr says:

      I think you are misunderstanding the basic nomenclature here.

      “Classified” is the broad, catch-all term for any materials that are in some way restricted. Terms like “confidential” or “secret” or “top secret” are levels within the broader classification scheme. The more sensitive the information, the higher level of classification it has, and the stronger the penalty for mishandling it.

      In addition, other items can also get appended to these designations, like “no foreign nationals,” which restrict matters further.

      And of course, the big thing that goes with all of this is “need to know.” You might have a Top Secret clearance, but if a specific program is outside of your area of work, you can’t look at it because you don’t need to know about it.

      Added: For more detail on this, see the Office of the Director of National Intelligence Classification Guide . Note that it was initially classified as SECRET/NOFORN, but has since been declassified (though certain items remain redacted).

    • Rugger9 says:

      What contemporaneous policy (aside from DJT embarrassment) rendered them classified? I think that was a key reason that prosecution couldn’t be done.

  3. Leoghann says:

    I know it would be an unprecedented move, and bmaz swears that Don is Teflon and will never face arrest or prosecution. But I would really get a kick out of knowing that Mar-a-Lago were the site of a major FBI raid for the purpose of seizing classified, stolen documents. Imagine the theater!

    • Savage Librarian says:

      Or Turnberry. Remember when there was that weird episode when it seemed DT might be planning to abscond to Scotland right before Biden’s inauguration? What if he had some documents sent there instead:

      “Donald Trump could be planning Turnberry trip as Scots airport told to expect a high-flyer the day before Joe Biden’s inauguration” – The Sunday Post, Jan. 3, 2021

      https://www.sundaypost.com/fp/donald-trump-could-be-planning-turnberry-trip-as-scots-airport-told-to-expect-a-high-flyer-the-day-before-joe-bidens-inauguration/

      • Rugger9 says:

        Possible but I think very unwise. The UK’s Official Secrets Act is pretty restrictive and thorough. Outside of BoJo I don’t think either anyone in Westminster or Edinburgh is willing to provide political cover for DJT’s spiriting off classified documents. As it is Boris Johnson is in hot water over ‘Partygate’.

        • puzzled scottish person says:

          Bozza likes to compare himself to Churchill. When, might I ask, if ever, did Churchill get taken to court for breaking blackout rules?

          Look on the mighty, ye poor, and be grateful, for they are mightily shafting one and all of us. For which we should surely be thankful. Or so they tell us.

          I’d rather have watery bints handing out swords if that’s the best things get, ta ;-)

          • rip says:

            Unable to reply in your vernacular, but how about:

            “When the mighty are shafted upon their own misdeeds, the shaft runs through and highly, indeed.”

        • earlofhuntingdon says:

          Nor does either government want to investigate Trump, illustrated by their refusals to issue unexplained wealth orders.

          • Peterr says:

            Johnson likely doesn’t have enough investigators to spare to investigate people outside his own government.

            “I’m sorry, Prime Minister, but with all the No. 10-parties-under-lockdown to look into, the mess that is the Metropolitan Police (aka Scotland Yard), “VIP” contracts for PPE that was defective and/or unneeded, and more than a few other things we have on out plate like Kurt Zouma’s cat-kicking and keeping track of who we report to (what with all your government housecleaning), we won’t be able to get to this investigation of a rogue golf club owner until sometime in 2024 at the soonest. But we *will* get to the bottom of it, sir. Just not right away.”

            • earlofhuntingdon says:

              Johnson is not remotely competent: he’s bright but so lazy he makes Trump look energetic. As the English saying goes, he would be out of his depth in a car park puddle. Naturally, his government is in endless turmoil. Nicola Sturgeon, though, is another kettle of herring. She’s the one who seems to have buried demands for an UWO for Trump.

              • Valley girl says:

                From my reading back when, it seemed that NS got herself into a bit of a jam. Self-inflicted, the way I read it.

                I see that Cressida Dick has …er… resigned. I’m no expert on Brit politics, but I thought that was long overdue.

                • Peterr says:

                  You and a non-trivial portion of the British electorate.

                  Fairly or not, that’s the way it has played out.

                • earlofhuntingdon says:

                  Long overdue, I agree. I would guess CD is both a beneficiary and victim of the Met’s sexism, as well as its racism and homophobia. Had she wanted to, she could not have addressed any of those three without the backing of her senior officers. She appears to have had very little of it.

                  Sturgeon? Meh. By all accounts, conservative, self-obsessed, overly ambitious, deeply hypocritical, and not shy about engaging in dirty tricks.

                • Rugger9 says:

                  Not so sure about the jam since I do follow FMQs and the Tories are pounding on opening up nownownow.

                  What is more likely I think would be the case where Westminster would overrule Edinburgh and I’m not clear on whether the UWO is a devolved power (belonging to Edinburgh) or not (belonging to Westminster).

                  What we do know is that the scale of losses for the properties is high enough that whoever fronted the cash will want something for their investment. Perhaps that is why the 15 boxes went to Mar-A-Lago.

              • Rayne says:

                I’ll disagree about Johnson being bright. He’s made so many gross errors with regard to the “work event”/Ignored lockdown Christmas party/surprised-by-a-cake scandal there’s no way he’s got more wattage than the average Briton, and that’s just scratching the surface of Johnson’s lies.

                • cmatt says:

                  Very long time lurker here, always full of admiration but usually out of my depth. Good to see Johnson getting the Trump treatment – he shares the extreme narcissism that has no regard for anything other than how it reflects on himself.

                  • Rayne says:

                    You have my sympathies. I wish there were an easier path to giving Johnson the boot; as long as he’s in office, the UK will stand no realistic chance of stemming and reversing the economic damage he and his rancid
                    ‘Eton mess’ have done.

  4. Anon says:

    I am against “no-knock” warrants in the middle of the night, except for Trump at Mara-lago, to retrieve the peoples property…today.

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. You’ve published comments here as “Al Ostello” 24 times already. Furthermore, we’ve had numerous individuals posting as “Anon” and they’ve been asked to use differentiated names. Thanks. /~Rayne]

    • earlofhuntingdon says:

      If you allow one, you allow all the others. The problem is not the absence of a “knock” requirement. As bmaz has explained, there’s not much difference between how knock and no-knock warrants are served. The issue is the extreme violence, often needlessly exercised by SWAT teams – and virtual shoot-first authority – with which they are served. That’s what should be banned.

  5. N.E. Brigand says:

    As others note, this seems like a sword that cuts both ways. I’m not sure what Comey should have done to ensure that the evidence documenting attempts to obstruct justice by the President of the United States who had just fired him would not be destroyed by whoever the President appointed to succeed him. Is it Beregond leaving his post to save Faramir’s life all over again, or did Comey have other options? And it’s notable that Comey didn’t use that argument and instead claimed (probably falsely) that he thought they were personal, an argument that Trump himself could also use — except that he’s already undermined himself, as Ms. Wheeler makes clear.

    (Was Comey allowed to write personal notes about what happened on the job? If he kept a diary, would it become government property if he wrote in it the same thing that he wrote in these memos?)

  6. WilliamOckham says:

    Let’s focus on one particular document that NARA specifically asked for: The Hurricane Dorian map that Donald Trump allegedly falsified with a Sharpie™ marker. It’s not clear to me whether or not it was returned. If it was returned, there should be an immediate investigation into whether or not it was Trump who falsified it. If it wasn’t returned, Trump should be investigated for destroying it. Either way, the incident looks like a clear violation of 18 USC 2071(b). The falsification of that map was not some harmless peccadillo. It shows exactly why Trump shouldn’t be able to hold office.

    • rip says:

      (Hate to respond so much and so blithely but this one seems ripe…)
      I’m guessing that whiteboard presentation that trumpie gave showing his meteorological expertise was at least on a laminated paper or cardboard backing.

      I’d pay a whole monthly rent in a trump tower shit-hole apartment to watch him chew on and then digest that presentation. Video extra.

  7. JohnJ says:

    I seem to remember TFG complaining about low flow toilets not clearing on the first flush. That and shower heads.

    Maybe the former had a real reason to him. The latter is just about a limited amount of water trying to cover a huge surface.

  8. WilliamOckham says:

    I just got one of those “items you might like” emails from Amazon. First suggestion was a toilet plunger and bowl brush combo. They might need to work on their tracking algorithm…

  9. graham firchlis says:

    Just to put a pin in it, Pelosi violated neither law nor rule in tearing up that photocopy of Trump’s speech. Given publicly, it could in no way be considered classified.

    The original is government property. The copy was hers, to do with as she pleased, and the slow, steady, deliberate shredding above Trump’s ugly mug was a glorious bit of political theater.

    [Yes, I am an unabashed admirer of Pelosi, and have been since she first came on the local political scene decades ago. It has been my life’s habit to engage with people much smarter than myself (OK, a low bar if you will) and Pelosi is in the top tier. We are all going to miss her when she’s gone.]

    • Rayne says:

      Should also remember the Speech or Debate Clause with regard to Pelosi’s destruction of a document on the floor of the House. Under the Constitution’s Article I, Section 6, Clause 1, legislators performing their duties in the House “…for any Speech or Debate in either House, they shall not be questioned in any other Place.

  10. Peterr says:

    From ABC’s Alex Mallin: “Solid timing on this DOJ release . . . ‘Honolulu Woman Receives Three Months in Prison for Removal and Retention of Classified Material’.

    You can’t make this stuff up.

  11. Molly Pitcher says:

    reposted by Mercurial Era on Instagram today:

    “LindyLi @ lindyli

    Number of articles Maggie Haberman wrote or contributed to involving Hilary Clinton’s emails, between 1/1/2015 and 12/31/2016:

    265

    Number of articles she wrote about Trump’s post-presidency relationship with Kim Jong-un or his flushing docs down the toilet:

    Zero

    You can repeat my research by using the search bar on the NYTimes.com & setting a specific date range & typing in “Maggie Haberman Clinton emails”

    Most include her byline

    Like the man with whom she took a chummy photo in the Oval Office, she picked $ over country “

    • rip says:

      Love to hear a cogent response from the NYT and Haberman. Doubting this will be forthcoming since they’re not really into the retraction business.

      • Peterr says:

        They’ll have a response. Most likely it will be some version of “It’s all covered in my book.”

        Might have been nice for Maggie to have put it in the paper when the news was fresh, though. I thought that’s what they paid her for.

  12. blueedredcounty says:

    Wasn’t either the recording and/or an official transcript (I forget which) of Trump’s extortion call with Zelensky stored on a classified server so it could not be retrieved and presented for his related impeachment trial? Whatever happened to any further investigation to get that transcript, or to verify it was inappropriately classified to store it on that server?

    • Dave_MB says:

      Yes. What was released was a redacted version of notes of the conversation and not the transcript, which was put on a server for highly classified documents. That transcript has not seen the light of day yet.

  13. Marinela says:

    Also the notes he took from the translator on the Helsinki meeting with Putin.
    I think he destroyed them.

  14. Jimmy Anderson says:

    Once of the WaPo articles links to this 2019 news story (I’m wondering if they think this is the (highly) classified memo document referring to foreign actors visiting the White House.
    https://www.washingtonpost.com/national-security/trump-told-russian-officials-in-2017-he-wasnt-concerned-about-moscows-interference-in-us-election/2019/09/27/b20a8bc8-e159-11e9-b199-f638bf2c340f_story.html
    “The comments, which have not been previously reported, were part of a now-infamous meeting (2017) with Russian Foreign Minister Sergei Lavrov and Russian Ambassador Sergey Kislyak, in which Trump revealed highly classified information that exposed a source of intelligence on the Islamic State.”
    …..
    “It is not clear whether a memo documenting the May 10, 2017, meeting with Lavrov and Kislyak was placed into that system (a code-word classified system reserved for the most sensitive intelligence information.), three former officials said it was restricted to a very small number of people. The White House had recently begun limiting the records of Trump’s calls after remarks he made to the leaders of Mexico and Australia appeared in news reports. The Lavrov memo was restricted to an even smaller group.”

    (Edited to strip out the tracking code (the question mark and all that follows) from the link)

  15. DAT says:

    EW,
    I apologize in advance for having my pedant on, but… In your first (or third?) sentence you use “behest.” That is bidding, vow, or command. I’m sure Ms. H. and TFG had no such communication. I suggest that it read “…who chased the story relentlessly to Trump’s benefit in 2016…”

  16. Mark says:

    It’s become clear after 6 years of diminishing outrage at His behavior, which everyone knows is unethical and often clearly criminal, that if any one of us did them we (at least I) would be ruined and imprisoned, that no one is going to hold him to account, God knows why we would elevate such a loathsome toad to this level of license, but we clearly have. Probably says more about our government and populace than it does about him. Narcissistic grifters have always been among us, but previous we didn’t willingly lay down for them. Let’s either prosecute him or just shut up about it.

    • Leoghann says:

      All it took was a solid promise, reiterated time after time, and confirmed by a few supporters in high places, to revert our national culture to 1952. That’s the one campaign promise he kept, and the only one that really mattered to most MAGAts.

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