A Judge Just Ruled That, No, You Can't See James Comey's Trump Memos Right Now
A federal judge, who reviewed the memos and spoke with a member of special counsel Robert Mueller's office about them, concluded that releasing them to the public now via the Freedom of Information Act would interfere with the Russia investigation.
Former FBI director James Comey's memos documenting his conversations with President Donald Trump will remain secret for now, a federal judge ruled on Friday.
Releasing the memos would interfere with special counsel Robert Mueller's investigation into alleged Russian interference in the 2016 election, US District Judge James Boasberg concluded. The judge wrote that his decision was based on his own review of the memos, along with information he received from the Justice Department and a member of Mueller's team — information that is not public — concerning their release.
"As it prevails here, the Comey Memos, at least for now, will remain in the hands of the Special Counsel and not the public," Boasberg wrote.
Comey, who was fired by Trump on May 9, publicly disclosed the existence of his memos in his testimony before the Senate Select Committee on Intelligence on June 8. Comey said at the time that he decided to document his conversations with the president because he was concerned Trump might try to lie about them later, and because he thought he might need them to defend the "integrity" of himself and the FBI.
Journalists and government watchdog groups filed requests under the Freedom of Information Act for copies of the memos, and then sued the Justice Department and the FBI when those requests were denied.
Boasberg, who sits in the US District Court for the District of Columbia, ordered the government to provide him with copies of the memos on Jan. 11. After reviewing the memos, according to Friday's opinion, the judge "thought it helpful to seek more specifics as to the Memos’ connection with an ongoing investigation" and asked to hear from a member of Mueller's office.
The judge wrote that Michael Dreeben, a longtime Justice Department official who is now detailed as counsel to Mueller, had a sealed session with the judge to provide that information.
Boasberg wrote that after hearing from Dreeben about the memos and their role in the Russia investigation, he was "fully convinced" that releasing them "could reasonably be expected to interfere" with the probe.
Boasberg focused his analysis on whether the memos could be released on an exemption to the Freedom of Information Act that shields law enforcement records from public disclosure if they "could reasonably be expected to interfere with enforcement proceedings." Regardless of whether Comey originally wrote the memos for law enforcement purposes, the judge wrote, they fell under the exemption because DOJ had said they were then compiled for law enforcement purposes — that is, as part of the special counsel's investigation.
According to affidavits submitted to the judge by David Archey, the FBI official now supervising FBI personnel assigned to the Russia investigation, the special counsel's office had collected the memos before June 16, when the Justice Department sent a letter to groups that filed the FOIA requests declaring that the documents were exempt. Archey's affidavits about the memos aren't public.
Comey said in his Senate testimony in June that he began documenting his one-on-one conversations with Trump after his first meeting with Trump on Jan. 6, 2017. In his opening statement, he described five of those conversations, including a Jan. 27 dinner at the White House in which Comey said the president told him, "I need loyalty, I expect loyalty."
But the judge concluded that Comey's public testimony about the existence of the memos didn't waive the Justice Department's ability to keep them secret. Comey's public statements about the memos weren't as specific as the documents themselves, the judge wrote, and, regardless, Comey wasn't FBI director when he testified and didn't have the authority to release them on the agency's behalf.
The fact that Comey said he gave a copy of one of the memos to his friend Daniel Richman, a professor at Columbia Law School, did not mean that the memos were now in the public domain and should be released, the judge wrote.
"The Court acknowledges that this situation is rather unprecedented; it is not every day that an FBI Director feels the need to memorialize his conversations with a sitting President and then publicize that he did so," Boasberg wrote.
However, he wrote, while the release of a "truly public" document wouldn't harm the agency at issue, "the memos are possibly held by one person outside the agency, and the Bureau and Special Counsel still have something to lose by their dissemination to the broader public."
Representatives of the Justice Department and the special counsel's office declined to comment.
Bradley Moss, one of the lawyers involved in suing for the memos' release, said in a statement to BuzzFeed News that the ruling was "unfortunate," and he criticized the judge's reliance on affidavits from the government that the plaintiffs' lawyers and the public couldn't see. He said they were considering whether to appeal.
"The details of at least parts of the Comey Memoranda were publicly disclosed by Mr. Comey himself in Congressional testimony and are a matter of significant and immediate public interest. To rule in favor of withholding the memoranda in their entirety based upon information no one else has seen is contrary to the spirit, if not the letter, of FOIA," Moss said.Larry Klayman, head of the government watchdog group Freedom Watch, one of the parties that sued for Comey's memos, told BuzzFeed News that he planned to appeal.
Tom Fitton, president of another watchdog group involved in the case, Judicial Watch, said in a statement that his group was considering an appeal. Fitton drew a line from the fight over the release of Comey's memos to the fight over the release of an internal House Intelligence Committee memo related to the Russia investigation, which was made public on Friday.
"Americans should know that the same agencies who didn’t want the House FISA memo released don’t want the Comey memos released," Fitton said.
Updated with comment from lawyers in the case.