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Judicial Watch: Justice Department Argues Comey’s Leak of ‘Flynn’ Memo to New York Times was Unauthorized, Compares Comey to Wikileaks, November 8, 2018

Judicial Watch argues that if disclosure of the “Flynn” memo would harm the Russia investigation, then the Justice Department should have taken steps to “address Ex-Director Comey’s removal of the memo from the FBI, leaking of the memo to the media, and subsequent testimony about the memo, to the extent that testimony was unauthorized and not coordinated with [the Justice Department], the FBI, and/or Special Counsel Mueller. Removal of government records is a federal offense.” While the Justice Department compares Comey to WikiLeaks, it makes no claim to have addressed Comey’s misconduct. Judicial Watch points out that its “failure to do so further undercuts any claim of harm” to an ongoing law enforcement investigation.

“We now have Justice Department confirmation that Comey was wrong to have leaked records to the media to settle a score with President Trump,” said Judicial Watch President Tom Fitton. “How can this Justice Department defend its position that memos written for pernicious purposes to target a sitting president with a criminal investigation should remain secret? Mr. Mueller may have an interest in protecting Comey, but the public’s interest demands transparency about Comey’s vendetta against President Trump.”

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(Washington, DC) – Judicial Watch announced today that the Justice Department is now comparing former FBI Director James Comey to WikiLeaks. After Comey was fired by President Trump on May 9, 2017, he gave the New York Times a February 14, 2017, memorandum written about a one-on-one conversation he had with President Trump regarding former National Security Advisor Michael Flynn. Judicial Watch is asking a federal court to order the release of all Comey’s unclassified memoranda about his one-on-one conversations with the president.

Comey testified under oath before the U.S. Senate Select Committee on Intelligence that he authored as many as nine such memos about his one-on-one conversations with President Trump. He also admitted, regarding the “Flynn” memo, “I asked a friend of mine to share the content of the memo with a reporter [for The New York Times] … I asked him to because I thought that might prompt the appointment of a special counsel.” The New York Times published a report about the memo on May 16, 2017. Special Counsel Robert Mueller was appointed the following day.

On June 16, 2017, Judicial Watch filed a Freedom of Information Act (FOIA) lawsuit in the U.S. District Court for the District of Columbia after the Department of Justice failed to respond to a May 16 FOIA request (Judicial Watch v. U.S. Department of Justice (No. 1:17-cv-01189)). Judicial Watch seeks:

FBI Director James Comey’s February 14, 2017 memorandum…memorializing an Oval Office conversation he had with the President on that date regarding former National Security Advisor Michael Flynn.

In its lawsuit Judicial Watch refutes the Justice Department’s claim of exemption for law enforcement purposes:

Ex-Director Comey plainly did not use the February 14 Memo for any recognized or legitimate law enforcement purpose. He used it to settle a score with the President, who had just fired him.

Judicial Watch argues that if disclosure of the “Flynn” memo would harm the Russia investigation, then the Justice Department should have taken steps to “address Ex-Director Comey’s removal of the memo from the FBI, leaking of the memo to the media, and subsequent testimony about the memo, to the extent that testimony was unauthorized and not coordinated with [the Justice Department], the FBI, and/or Special Counsel Mueller. Removal of government records is a federal offense.” While the Justice Department compares Comey to WikiLeaks, it makes no claim to have addressed Comey’s misconduct. Judicial Watch points out that its “failure to do so further undercuts any claim of harm” to an ongoing law enforcement investigation.

On September 7, 2017, Judicial Watch filed a FOIA lawsuit on behalf of the Daily Caller News Foundation after the Department of Justice failed to respond to a June 9 FOIA request (Daily Caller News Foundation v. U.S. Department Justice (No. 1:17-cv-01830)). The lawsuit seeks:

All unclassified memoranda authored by former FBI Director James Comey that contemporaneously memorialized his discussions with President Donald Trump and his aides [during] the time frame…November 8, 2016 to May 9, 2017.

In the Daily Caller News Foundation suit Judicial Watch argues that neither the FBI nor the Justice Department prevented Comey from testifying, nor do they dispute anything he said. Comey is not under investigation for violating any non-disclosure agreements or removing records from the FBI when he was fired. “Their silence and inaction speak volumes,” Judicial Watch argues.

Judicial Watch further debunks the notion that Comey wrote the memos for law enforcement purposes:

[Director Comey] explained, “I knew that there might come a day when I would need a record of what happened, not just to defend myself, but to defend the FBI and – and our integrity as an institution and the independence of our investigation.” … He authored the records not for law enforcement purposes but for administrative and institutional purposes. His testimony could not be clearer.

Judicial Watch argues in both filings against withholding the memoranda under the guise of a national security exemption. The FBI fails to demonstrate that material contained in the memoranda was classified through proper procedures.

In its court filing opposing the release, the Justice Department also asserts that some of the Comey memos contain classified material.

“The Freedom of Information Act was designed to give the American people access to the records its government keeps,” said Neil Patel, publisher and CEO of the Daily Caller News Foundation. “This access is fundamental in a democracy like ours. Today, when so many Americans feel detached from a government that they feel often doesn’t serve their interests, this sort of access is more important than ever. When the Daily Caller News Foundation made a reasonable request for access to FBI Director Comey’s memos we were completely stonewalled. Our request is legally sound and completely within the public interest so with the help of our friends at Judicial Watch we are fighting in court to see it through.”

“We now have Justice Department confirmation that Comey was wrong to have leaked records to the media to settle a score with President Trump,” said Judicial Watch President Tom Fitton. “How can this Justice Department defend its position that memos written for pernicious purposes to target a sitting president with a criminal investigation should remain secret? Mr. Mueller may have an interest in protecting Comey, but the public’s interest demands transparency about Comey’s vendetta against President Trump.”

Both cases have been consolidated in Cable News Network, Inc., v. Federal Bureau of Investigation (No. 1:17-cv-01167).