Tom Fitton: Judicial Watch Pursues James Comey Records

The swamp creatures in Washington who gamed the system to appoint a special prosecutor need to be held accountable.

Judicial Watch is focusing on James Comey, the former FBI director who spirited away government documents, then arranged for the contents of those documents to be leaked to the media to force the appointment of a special prosecutor.  We aim to get the bottom of both the records’ removal and the leaks to the media, then hold accountable the persons involved.

Just today, we sued the Justice Department, which oversees the FBI, for a key Comey memo.  The lawsuit seeks access to a memorandum Comey wrote after a private meeting with President Trump regarding the pending investigation of Gen. Mike Flynn and potential Russian interference in the 2016 presidential election (Judicial Watch v. U.S. Department of Justice (No. 1:17-cv-01189)).

We filed the suit here in D.C. after the Department of Justice failed to respond to our May 16 FOIA request:

The memorandum written by former Director James Comey memorializing his meeting and conversation with President Trump regarding the FBI’s investigation of potential Russian interference in the 2016 United States presidential election. For purposes of clarification, this memorandum was reportedly written on or about February 13, 2017 and is the subject of a New York Times article … dated May 16, 2017.

The memo purportedly recounts a conversation between Trump and Comey about Flynn.

Judicial Watch is pursuing six FOIA lawsuits (see here, here, here, here, here, and here) related to the surveillance and unmasking of President Trump’s associates during the FBI investigation of potential Russian involvement and the subsequent leaking of information about that investigation to the media.

Having to sue to get a document that was leaked to the New York Times is a scandal. The memo should be released forthwith, and, frankly, the president can and should order its immediate release.

The lawsuit was only one of several significant actions we took this week. Yesterday, we sent acting FBI Director Andrew G. McCabe a letter reminding him about the FBI’s legal obligation under the Federal Records Act (FRA) to recover records removed from the agency, including Comey’s memos, apparently taken by Comey when he left the FBI and subsequently leaked them to the media.

My June 14 letter states:

As you are well aware, former FBI Director James Comey gave sworn testimony last week before the Senate Select Committee on Intelligence. Among other things, Mr. Comey confirmed that, while in office, he created various memoranda regarding his meetings with President Trump. Mr. Comey also confirmed that, after his departure from the FBI, he provided at least some of these memoranda to a third party, Columbia Law School Professor Daniel Richman, for the purpose of leaking them to the press. Various media outlets now have reported that Professor Richman has provided these memoranda to the FBI. It is unclear whether he still retains copies of the memoranda.

I am writing to you on behalf of Judicial Watch, Inc., a not-for-profit educational organization that seeks to promote transparency, accountability, and integrity in government and fidelity to the rule of law. In furtherance of its public interest mission, Judicial Watch regularly requests access to the records of the FBI through the Freedom of Information Act and disseminates its findings to the public. In fact, on May 16, 2017, Judicial Watch submitted a FOIA request seeking these specific memoranda removed from the FBI by Mr. Comey. Judicial Watch also has pending FOIA lawsuits in which the memoranda may be at issue.

These memoranda were created by Mr. Comey while serving as FBI director, were written on his FBI laptop, and concerned official government business. As such, they indisputably are records subject to the Federal Records Act. 44 U.S.C. §§ 2101-18, 2901-09, 3101-07, and 3301-14. The fact that Mr. Comey removed these memoranda from the FBI upon his departure, apparently for the purpose of subsequently leaking them to the press, confirms the FBI’s failure to retain and properly manage its records in accordance with the Federal Records Act. Even if Mr. Comey no longer has possession of these particular memoranda, as he now claims, some or all of these memoranda may still be in possession of a third party, such as Professor Richman, and must be recovered. Mr. Comey’s removal of these memoranda also suggests that other records may have been removed by Mr. Comey and may remain in his possession or in the possession of others. If so, these records must be recovered by the FBI as well.

As you may be aware, the Federal Records Act imposes a direct responsibility on you to take steps to recover any records unlawfully removed from the FBI. Specifically, upon learning of “any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the agency,” you must notify the Archivist of the United States. 44 U.S.C. § 3106. Upon learning that records have been unlawfully removed from the FBI, you then are required to initiate action through the Attorney General for the recovery of records. Id.

In the event you fail to take these steps, you should be aware that Judicial Watch is authorized under the law to file a lawsuit in federal district court seeking that you be compelled to comply with the law. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955 (D.C. Cir. 2016); Armstrong v. Bush, 924 F.2d 282,296 (D.C. Cir. 1991). Please advise us no later than June 26, 2017 if you intend to take the action required under the law. If we do not hear from you by that date, we will assume that you do not intend to take any action. Thank you for your attention to this matter.

Mr. Comey left the FBI with government records, and the FBI and Justice Department are obligated to get them back. If they don’t, we may sue to try to force them to do so.