Andrew C. McCarthy:
The commentary about James Comey’s memoranda has been all over the map. The former FBI director says he made memos contemporaneous to, or immediately after, all nine of the meetings or phone calls he recalls having had with Donald Trump, when the latter was president-elect and, later, president. Comey acknowledges that he orchestrated the leak of at least one memo — or rather, a snippet mined from its contents — to the New York Times. All of the memos, he testified, have now been surrendered to the special counsel, Robert Mueller.
George Washington University’s Jonathan Turley does a good job in The Hill outlining much of the relevant law. One major issue is whether these documents belonged to Comey, in the sense of being his property rather than the government’s. That is the position he took in his testimony. Like Turley, I think the former director is wrong.
As a longtime prosecutor, I have a black-and-white test for this sort of thing: Would a judge in a criminal trial consider the documents to be government property for purposes of federal discovery law?
That law requires the government to disclose to the defense any prior statement made by a witness, written or otherwise recorded, that is in the government’s possession. It also mandates that the government disclose any information that is material to the preparation of the defense (such as evidentiary exhibits that the prosecution plans to introduce into evidence). Finally, the government must produce any exculpatory evidence — meaning, any evidence that (a) suggests the accused is not guilty, (b) contradicts the prosecution’s theory of the case, or (c) could be used to impeach a witness’s testimony.
Comey’s notes may fall into all three of those disclosure categories. Let’s imagine that Democrats get their dream scenario: President Trump is charged with obstruction. (As I’ve observed several times — see, for instance, here and here – there is no prosecutable obstruction case, but let’s stick with the hypothetical.) Comey could be a witness at trial; his memos could be evidence; and the memos contain exculpatory information (e.g., Comey’s recollection of Trump’s actual words expressing “hope” that the FBI would drop the Flynn investigation is inconsistent with the inference Comey now draws that Trump was ordering him to drop the Flynn investigation).
With that as our hypothetical, what would happen if a prosecutor in the case argued to the presiding judge that the government did not need to disclose Comey’s notes because they are his personal property and not in the government’s possession? Rest assured, the judge would blow a gasket, and rightly so.
The memos were written by an FBI official, apparently on FBI equipment, and related directly to FBI investigative business. Indeed, the fact that investigative business was central to Trump’s conversations with the former director is what induced Comey to write the memos: He perceived the president’s statements as political intrusion into law-enforcement investigations and intelligence probes. The memos were thus government property, and the then-director was obliged to make sure they were retained in government files.
That does not mean it would have been improper for Comey to keep a copy of them for himself. But doing that would not change the character of the memos as government property, and it would not relieve Comey of the obligation to comply with all government disclosure restrictions on the contents of the memos. At the Federalist, Bre Payton reproduces a copy of the standard FBI employment agreement, making a persuasive argument that Comey’s memos are government property and that the former director’s disclosure of information in them to unauthorized persons violated the employment agreement’s terms.