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JW v DOJ cross motion MSJ 01189

JW v DOJ cross motion MSJ 01189

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Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
CABLE NEWS NETWORK, INC.
Plaintiff,
FEDERAL BUREAU
INVESTIGATION,
Defendant.
____________________________________)
GANNETT SATELLITE INFORMATION
NETWORK, LLC, al.,
Plaintiff,
DEPARTMENT JUSTICE,
Defendant.
____________________________________)
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
Civil Action No. 17-01167 (JEB)
Civil Action No. 17-01175 (JEB)
Civil Action No. 17-01189 (JEB)
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
FREEDOM WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
THE DAILY CALLER NEWS
FOUNDATION,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
Civil Action No. 17-1212 (JEB)
Civil Action No. 17-1830 (JEB)
PLAINTIFF JUDICIAL WATCH CROSS-MOTION
FOR SUMMARY JUDGMENT
Plaintiff Judicial Watch, Inc., counsel and pursuant Rule the Federal Rules
Civil Procedure, respectfully requests that summary judgment entered its favor. Grounds
for the motion are set forth the accompanying memorandum law and Local Civil Rule 7(h)
statement facts.
Dated: November 2017
Respectfully submitted,
/s/ Paul Orfanedes
Paul Orfanedes
D.C. Bar No. 429716
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff Judicial Watch, Inc.
-2-
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
CABLE NEWS NETWORK, INC.
Plaintiff,
FEDERAL BUREAU
INVESTIGATION,
Defendant.
____________________________________)
GANNETT SATELLITE INFORMATION
NETWORK, LLC, al.,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
Civil Action No. 17-01167 (JEB)
Civil Action No. 17-01175 (JEB)
Civil Action No. 17-01189 (JEB)
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
FREEDOM WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
THE DAILY CALLER NEWS
FOUNDATION,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
Civil Action No. 17-1212 (JEB)
Civil Action No. 17-1830 (JEB)
PLAINTIFF JUDICIAL WATCH MEMORANDUM POINTS AND AUTHORITIES OPPOSITION DEFENDANTS MOTION FOR SUMMARY
JUDGMENT AND SUPPORT JUDICIAL WATCH
CROSS-MOTION FOR SUMMARY JUDGMENT
Introduction.
Judicial Watch FOIA seeks single record from the FBI FBI Director James Comey
February 14, 2017 memorandum February Memo the memo memorializing Oval
Office conversation had with the President that date regarding former National Security
Advisor Michael Flynn. his June 2017 testimony before the U.S. Senate Select Committee Intelligence, then Ex-Director Comey admitted making and keeping memos about all his oneon-one conversations with the President, including the February Memo, for administrative
and institutional purposes. also admitted leaking the February Memo the media
prompt the appointment special counsel. The contents the February Memo were
-2-
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
subsequently published The New York Times. light Director Comey actions and
testimony, Defendant cannot plausibly maintain that the February Memo was compiled for
law enforcement purposes that its disclosure under FOIA can reasonably expected
interfere with any ongoing enforcement proceedings. The memo must produced the public
can read and assess for themselves.
II.
Factual Background.
Director Comey met the President-Elect for the first time January 2017, Trump
Tower New York City. See Plaintiff accompanying Local Civil Rule 7(h) statement facts Plf SOF para. 35. that date, Director Comey and other Intelligence Community
leaders gave the President-Elect and members his national security team intelligence
briefing, after which Director Comey met one-on-one with the President Elect. Id. para. 36.
After the meeting, Director Comey began documenting all his one-on-one meetings with the
President. Id. para. 37. Creating written records immediately after one-on-one conversations
with Mr. Trump was practice from that point forward. Id. When asked why
memorialized his one-on-one conversations with President Trump when had not done with
Presidents Bush and Obama, Director Comey stated, [J]ust gut feeling, laying top all
that, that this going important, protect this organization, that make records
this. Id. para. 38. Director Comey was honestly concerned that [the President-Elect] might
lie about the nature our meeting. Id. para. 39. Although had only met the PresidentElect for the first time that day, Director Comey cited the nature the person that was
interacting with and read that person, among the reasons for his concern. Id.
After the inauguration, Director Comey met the President one-on-one January 27,
2017 and again February 14, 2017. Plf SOF para. 40. created memos both
-3-
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
meetings. Id. The February meeting took place the Oval Office and followed larger
meeting with several other, high-level Executive Branch officials. Id. para. 41. The subject
the one-on-one conversation that followed was former National Security Advisor Michael Flynn,
who had resigned the previous day. Id. Director Comey immediately prepared unclassified
memo the conversation about Flynn and discussed the matter with FBI senior leadership. Id. para. 42. decided the best move would hold it, keep box, document it, already done. Id.
Director Comey recalled nine one-on-one conversations the four-month period
between January 2017 and April 11, 2017. Plf SOF para. 43. Three were person, and
six were the phone. Id. created records after each our nine conversations. Tr.
33. didn did for nearly all them especially the ones that were substantive. Id.
According Director Comey, knew there might come day when would need record
what had happened, not just defend myself, but defend the FBI and our integrity
institution and the independence our investigative function. Id. para. 44. Tuesday, May 2017, the President fired Director Comey. Plf SOF para. 45. Friday, May 12, 2017, Ex-Director Comey arranged for friend provide the February
Memo reporter prompt the appointment special counsel. Id. para. 46.
judgment was, need get that out into the public square. asked friend mine share the
content the memo with reporter. Didn myself for variety reasons. asked him
because thought that might prompt the appointment special counsel. Id. Ex-Director
Comey apparently removed copies his memos from the FBI some point because gave
copy the February Memo his friend share with the media. Id. para. 47. The friend
was later identified Columbia Law School Professor Daniel Richman. Id. para. 48.
-4-
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
The following day, Tuesday, May 16, 2017, The New York Times published report
Michael Schmidt, entitled Comey Memo Says Trump Asked Him End Flynn
Investigation, regarding the February Memo and its contents. Plf SOF para. 49. That
same day, Judicial Watch submitted FOIA request the FBI seeking the following:
The memorandum written former Director James Comey memorializing his
meeting and conversation with President Trump regarding the FBI investigation potential Russian interference the 2016 United States presidential election.
For purposes clarification, this memorandum was reportedly written
about February 13, 2017 and the subject New York Times article
(enclosed) dated May 16, 2017.
Id. para. 50. The request was served via the FBI eFOIAP system and, accordingly, was
received the same day was sent. Id. May 17, 2017, Acting Attorney General Rod
Rosenstein appointed Special Counsel investigate Russian interference with the 2016
presidential election and related matters, Director Comey intended when disclosed the
February Memo the news media. Id. para. 51. June 2017, Ex-Director Comey gave written and oral testimony the Select
Committee. Plf SOF para. 52. testified length about his practice memorializing his
one-on-one meetings with the President, their February 14, 2017 meeting, and the February
Memo prepared Ex-Director Comey following that meeting. Id. Ex-Director Comey
written testimony with respect the February 14, 2017 meeting was follows:
When the door the grandfather clock closed, and were alone, the President
began saying, want talk about Mike Flynn. Flynn had resigned the
previous day. The President began saying Flynn hadn done anything wrong speaking with the Russians, but had let him because had misled the
Vice President. added that had other concerns about Flynn, which did
not specify.
The President then made long series comments about the problem with leaks classified information concern shared and still share. After had spoken
for few minutes about leaks, Reince Priebus leaned through the door the
grandfather clock and could see group people waiting behind him. The
-5-
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
President waived him close the door, saying would done shortly. The
door closed.
The President then returned the topic Mike Flynn, saying, good guy
and has been through lot. repeated that Flynn hadn done anything wrong his calls with the Russians, but had misled the Vice President. then said,
hope you can see your way clear letting this go, letting Flynn go.
good guy. hope you can let this go. replied only that good guy. (In
fact, had positive experience dealing with Mike Flynn when was
colleague Director the Defense Intelligence Agency the beginning
term FBI.) did not say would let this go.
The President returned briefly the problem leaks. then got and left out
the door the grandfather clock, making way through the large group
people waiting there, including Mr. Priebus and the Vice President. immediately prepared unclassified memo the conversation about Flynn and
discussed the matter with FBI senior leadership.
Id. para. 53. Ex-Director Comey testified orally that, when the February 14, 2017 meeting
began, his impression was, something big about happen. Id. para. 54. need
remember every single word that spoken. Id. When Ex-Director Comey was asked was
quoting the President exact words, responded, Correct. Id. para. 55. Ex-Director
Comey also testified that remembered every word the President said, that was very careful choosing the words used respond the President, and that remembered saying
agree good guy. Id. chose his response way saying not agreeing with
what you just asked do. Id. According Ex-Director Comey testimony, wrote the
February Memo unclassified that could discussed and shared more easily: thinking was, write such way that don include anything that would trigger
classification, that make easier for discuss within the FBI and the government and hold way that makes accessible us. Id. para. 56. also testified that
reviewed his memos preparing his written testimony. Id. para. 57.
-6-
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
III.
Argument.
Standard Review.
The legal standard for summary judgment FOIA case well known the Court.
See, e.g., Elkins FAA, Supp.3d 90, 94-95 (D.D.C. 2015) (Boasberg, J.). FOIA cases,
the agency bears the burden proof. Id. (citing Dep Justice Tax Analysts, 492 U.S.
136, 142 n.3 (1989). agency withholding responsive records under claim exemption bears
the burden proving the applicability the exemption claimed. Am. Civil Liberties Union
U.S. Dep Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) ACLU typically tries affidavit. Id. The agency affidavit must justify withholding with specific details,
demonstrate that the information withheld logically falls within the claimed exemption, and not contradicted contrary evidence the record. Id. Ultimately, agency justification for
invoking FOIA exemption must logical plausible. Id.
FOIA Exemption 7(A) Does Not Apply.
FOIA Exemption 7(A) authorizes agencies withhold records information
compiled for law enforcement purposes, but only the extent that the production such law
enforcement records information (A) could reasonably expected interfere with
enforcement proceedings. U.S.C. 552(b)(7)(A). initial matter, agency invoking
Exemption 7(A) must first prove the record information was compiled for law enforcement
purpose. the agency meets this threshold, must then show, more than conclusory
statement, how the particular kinds investigatory records requested would interfere with
pending enforcement proceeding. Campbell U.S. Dep Health Human Servs., 682 F.2d
256, 259 (D.C. Cir. 1982).
-7-
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
Defendant has not even attempted demonstrate that the February Memo exempt
from production under Exemption 7(A). Instead, takes categorical approach all ExDirector Comey nine-or-so memos about his one-on-one conversations with the President.
claims generically that this entire group records exempt from production under Exemption
7(A) without addressing any memo, including the February Memo Judicial Watch requested,
individually.1
Defendant categorical approach.
Courts have held that, appropriate circumstances, agencies may withhold responsive
records categorical basis. Under such approach, agency need not meet its burden
proof with respect each and every record, but instead may group responsive records
category, then demonstrate the category falls within one more FOIA exemptions. effect,
categorical approach lessens agency burden. has basis FOIA text. also
seemingly odds with FOIA purpose being disclosure statute, not withholding statute.
Envtl. Prot. Agency Mink, 410 U.S. 73, (1973).
There are limits when categorical approach may used. Citizens for Responsibility Ethics Washington U.S. Dep Justice, 746 F.3d 1082, 1099 (D.C. Cir. 2014) CREW Nation Magazine U.S. Customs Serv., F.3d 885, 893 (D.C. Cir. 1995). The
nature the records, not the exemption being invoked, determines whether categorical
approach appropriate. Only when the range circumstances included the category
characteristically supports inference that the statutory requirements for exemption may
satisfied categorical approach appropriate. Id. Stated another way, categorical approach the extent Exemption 7(A) might apply some portion the February Memo,
Defendant obviously has duty release any reasonably segregable portions not subject the
exemption. U.S.C. 552(b).
-8-
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page appropriate only case fits into genus which the balance characteristically tips one
direction. CREW, 746 F.3d 1095 (citing U.S. Dep Justice Reporters Comm. for
Freedom the Press, 489 U.S. 749, 776 (1989)). CREW, the Court rejected Defendant categorical treatment records criminal
investigation former U.S. House Representatives Majority Leader Tom DeLay and others,
which, like here, Defendant tried withhold under Exemption 7(A). CREW, 746 F.3d 1099.
Delay had been advised that was longer under investigation, but the others had not, leading
the Court conclude that, without more information, records concerning both Delay and the
others under investigation could not treated categorically. Id. likewise rejected
Defendant categorical approach withholding the records under Exemption 7(C), finding that,
although the individuals under investigation had substantial privacy interest the records, the
balance does not characteristically tip favor non-disclosure light the similarly
substantial countervailing public interest. Id. 1096.
Types records where courts have authorized categorical approach include grand jury
materials evidence gathered pursuant search warrant, witness statements, FD-302s,
investigators prosecutors notes, theories, and work product, and other common law
enforcement materials. Judicial Watch has found case which court has authorized
categorical approach where the records issue were memos one-on-one conversations with
the president. Defendant cites none. Judicial Watch submits that the range circumstances
likely present proposed category records comprised memos one-on-one
conversations with the president far too great warrant categorical treatment. matter
what the claim exemption, cannot said that such memos are going sufficiently
similar warrant categorical treatment. Nothing about memos one-on-one conversations
-9-
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
with the president characteristically supports inference that the statutory requirements for
any particularly exemption may satisfied. They are not genus which the balance
characteristically tips one direction.
Regardless whether categorical approach appropriate here, Defendant has failed
meet its burden using such approach. agency has three-fold task wishes adopt
categorical approach. Citizens for Responsibility Ethics Washington U.S. Dep
Justice, 746 F.3d 1082, 1098 (D.C. Cir. 2014) CREW (citing Bevis U.S. Dep State, 801
F.2d 1386, 1389-90 (D.C. Cir. 1986)). First, must define its categories functionally. Id.
Second, must conduct document-by-document review order assign documents the
proper category. Id. Finally, must explain the court how the category falls within the
exemption claimed. Id. Defendant does not even claim have defined its categories,
functionally otherwise, much less demonstrate why the memos should treated categorically. lumps the memos together there are only approximately nine them and treats them
they were category. Defendant also does not claim have reviewed the memos document-bydocument make sure they are properly assigned its newly-minted category. also has not
explained how the memos fall within Exemption 7(A).
[I]t not sufficient for the agency simply assert that disclosure will interfere with
enforcement proceedings; must rather demonstrate how disclosure will so. CREW, 746
F.3d 1098 (quoting Sussman U.S. Marshals Serv., 494 F.3d 1106, 1114 (D.C. Cir. 2007)).
Defendant has not shown how disclosure the nine-or-so memos categorizes one-on-one
conversations with the President will interfere with the Russia investigation. relies single
sentence claiming disclosure will adversely affect the pending investigation revealing the
scope and focus the investigation, and whether particular persons, activities, information,
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
evidence not interest the investigation. Hardy Decl. para. 71. Defendant single
sentence bald, conclusory assertion, not demonstration harm. Its bare bones claim
particularly insufficient given the Ex-Director Comey extensive testimony and quotation from least one the memos the category the February Memo. Defendant fails meet its
burden proof under categorical approach. law enforcement purpose
Defendant also fails prove the February Memo was compiled for law enforcement
purpose. Defendant does not claim the memo contains reflects evidence gathered grand
jury pursuant search warrant, witness statements, FD-302s, investigators prosecutors
notes, theories, work product, other common investigative material. glosses over the
memo creation and ignores Ex-Director Comey testimony about the reason made and kept
the memo. Defendant does not even address the February Memo specifically. Instead,
asserts generically that all Ex-Director Comey memos contain information complied part and relation the Russia Investigation. Hardy Decl. para. 67.
Defendant boilerplate claim directly contradicted Ex-Director Comey testimony the Select Committee. Ex-Director Comey testified made and kept the February Memo protect the FBI institutional interests, not for the Russia investigation. apparently
believed the President would lie about their meetings and wanted verbatim record what
and the President had said. Ex-Director Comey testimony certainly does not describe any law
enforcement purpose previously recognized court falling under Exemption 7(A).
The substance Ex-Director Comey testimony about his conversation with the
President refutes the FBI claim that the memo was prepared for law enforcement purpose
otherwise contains information compiled part the Russia investigation. sum and
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
substance, Ex-Director Comey testified that, during their one-on-one Oval Office conversation February 14, 2017, the President told him General Flynn had not done anything wrong except
mislead the Vice President and that hope[d] you can see your way clear letting this go,
letting Flynn go. good guy. Ex-Director Comey responded, agree good guy. did not say would let this go. This not law enforcement material within the
meaning Exemption 7(A). the February Memo predates Comey firing, also cannot
have been compiled Comey for any obstruction justice investigation the President.
Ex-Director Comey plainly did not use the February Memo for any recognized
legitimate law enforcement purpose. used settle score with the President, who had just
fired him. readily admitted leaking the memo reporter, through intermediary, within
days his May 2017 firing. report about the meeting memorialized the February
Memo was published the New York Times May 16, 2017, one week after Comey firing.
The leak had its intended effect. Special Counsel Mueller was appointed May 17, 2017.
Defendant makes claim that the February Memo was subsequently compiled
Special Counsel Mueller part the Russia investigation.2 Special Counsel Mueller had not
yet been appointed when Judicial Watch served its FOIA request May 16, 2017. Judicial
Watch served the request the FBI, not Special Counsel Mueller office. Moreover,
Defendant claims have found the memo Ex-Director Comey files, not any investigative
files the FBI Special Counsel Mueller. Hardy Decl. para. 62. Defendant does not even
claim have searched Special Counsel Mueller files. The fact that the February Memo
Records showing that Special Counsel Mueller subsequently obtained copy the
February Memo for use his investigation might protected Exemption 7(A), but only
the fact that the memo was obtained, not the memo itself, would protected. See, e.g., Labow U.S. Dep Justice, 831 523, 529-30 (D.C. Cir. 2016).
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
was found Ex-Director Comey files, not the FBI investigative files the Special
Counsel files, further undercuts Defendant claim that the memo was compiled for law
enforcement purpose either the FBI Special Counsel Mueller. reasonable expectation interference.
Even Defendant had attempted justify its withholdings document-by-document
basis rather than categorical basis, could not prove disclosure the February Memo
could reasonably expected interfere with the Russia investigation. Again, Ex-Director
Comey testimony undermines any such claim, does his leaking the memo the New York
Times prompt the appointment special counsel. Ex-Director Comey devoted more his
Select Committee testimony the February Memo than any other single record subject. addition testifying about his purpose writing and keeping the memo, Ex-Director Comey
testified that took great care remember and quote the President exact words and his words the President, then repeated them his written and oral testimony. Defendant generic claim
that there much that not known publicly known about these documents directly
contradicted Ex-Director Comey testimony. Def Mem. 20. Defendant certainly
presents evidence unique the February Memo this effect.
Defendant does not claim, much less prove, that any portion the February Memo
remains undisclosed. also does not claim prove that any undisclosed portion the memo
could reasonably expected interfere with the Russia investigation were disclosed.
Defendant does not even address the February Memo individually. lumps the memo
together with the others prepared Ex-Director Comey part its failed, categorical
approach, then generically asserts that disclosure all the memos combined reasonably likely interfere with the Russia investigation. Given Ex-Director Comey extensive testimony
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
about the February Memo and the fact readily admitted leaking the memo the New York
Times, Defendant must more than make boilerplate assertions about Ex-Director Comey
memos collectively. must make individualized showing that disclosure any portions
the February Memo not already disclosed Ex-Director Comey could reasonably
expected interfere with ongoing investigation.
Interference material part any Exemption 7(A) claim. agency bears the burden proving interference regardless whether there any claim official acknowledgment the contents agency record. official acknowledgment analysis the equivalent affirmative defense waiver occurs only after the agency proves exemption applies.
ACLU, 628 F.3d 620 the government has officially acknowledged information, FOIA
plaintiff may compel disclosure that information even over agency otherwise valid
exemption claim. While Defendant claims took public statements about Ex-Director
Comey memos into account, including Ex-Director Comey testimony, considering whether release the memos collectively, the bell cannot unrung. Defendant has not and cannot
prove disclosure the February Memo could reasonably expected interfere with the
Russia investigation light Ex-Director Comey leaking the memo the New York
Times and his subsequent, extensive and detailed testimony about the memo. Moreover,
Defendant does not claim Ex-Director Comey testimony was unauthorized, nor disclaim there
was coordination between Ex-Director Comey and Defendant, the FBI, and/or Special Counsel
Mueller about the testimony.3 Under the circumstances, would seem very likely least some
coordination took place.
Judicial Watch served separate FOIA request for records communications between
Defendant and Ex-Director Comey regarding his Select Committee testimony. That request also litigation. See Judicial Watch, Inc. U.S. Dep Justice, Case No. 17-cv-2116 (TJK) (D.
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
Finally, disclosure the February Memo could reasonably expected harm the
Russia investigation, then presumably Defendant would have taken steps address Ex-Director
Comey removal the memo from the FBI, leaking the memo the media, and subsequent
testimony about the memo, the extent that testimony was unauthorized and not coordinated
with Defendant, the FBI, and/or Special Counsel Mueller. Removal government records
federal offense. See, e.g., U.S.C. 641 and 2071. Defendant compares Ex-Director Comey Wikileaks (Def Mem. 18), but makes claim have initiated action address ExDirector Comey misconduct. Its failure further undercuts any claim harm.
Waiver.
Unlike most waiver cases, the disclosure issue here was far more than leak. was
sworn testimony the former head the FBI about memo personally wrote during his
tenure the FBI. Ex-Director Comey testimony about the February Memo obviously has authority, veracity, and weight far beyond anonymous leak. Defendant also makes
claim that tried stop Ex-Director Comey from testifying the Select Committee about the
February Memo any other memo wrote about his one-on-one conversations with the
President. Defendant also does not claim that Ex-Director Comey testimony erroneous. The
testimony, coming only one month after Comey was dismissed head the FBI, has all the
hallmarks reliability and trustworthiness and sufficient indicia official action warrant
treating the testimony official acknowledgment. The February Memo should
produced even the Court determines Defendant has satisfied Exemption 7(A) because the
memo has been sufficiently officially acknowledged. ACLU, 628 F.3d 620-21 (describing 3part test for official acknowledgment).
District Columbia) (filed Nov. 2017).
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
Defendant Failed Prove that Exemptions and 7(C) and (E)
Apply the February Memo.
Defendant makes effort identify which memos claims are subject Exemptions and 7(C) and 7(E). Rather, asserts these claims exemption generally, without
reference any particular memo. Defendant blunderbuss approach puts Judicial Watch
untenable position. impossible for Judicial Watch know whether Defendant even
claiming the February Memo subject one more these additional exemptions and,
so, which one(s). also impossible for Judicial Watch know whether what extent
needs respond any particular, non-7(A) claim exemption. minimum, Defendant
should required identify whether claims the February Memo subject any claim
exemption other than 7(A), and, so, which one(s). Only then would Judicial Watch have fair
opportunity respond.
Ex-Director Comey testified wrote the February Memo that would not
classified. June Tr. 41-42. Defendant makes claim that Comey testimony was false.
Defendant also makes claim least not yet that Ex-Director Comey disclosed classified
information when leaked the February Memo the New York Times. also makes
claim that removed classified information from the FBI otherwise mishandled classified
information. Nor does claim Ex-Director Comey disclosed classified information when
discussed the February Memo length his June testimony. These facts plainly
contradict any claim that the February Memo contains information exempt from production
under Exemptions and and makes any such claim illogical and implausible. addition, Defendant makes claim about when, Ex-Director Comey
congressional testimony was incorrect, the February Memo was allegedly classified. The
Hardy Declaration does not say when any the memos were allegedly classified. The date
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
classification important because record classified after FOIA request made subject
different standard. The agency must satisfy the additional requirements Executive Order
13,526, section 1.7(d). Canning U.S. Dep State, 134 Supp.3d 490, 506 (D.D.C. 2015).
Among other things, section 1.7(d) provides that previously undisclosed, responsive information
may classified after the receipt FOIA request only such classification
accomplished document-by-document basis with the personal participation under the
direction the agency head, deputy agency head, the senior agency official designated under
section 5.4 this order. Id. (quoting Exec. Order 13,526 1.7(d)). Defendant failure
specify when the memos were classified makes impossible determine whether the correct
standard being applied.
Finally, Ex-Director Comey description his February 14, 2017 meeting with the
President odds with any claim that the memo contains the names identifying information
about any persons other than the President Ex-Director Comey. also odds with any
claim that the disclosure the memo would reveal law enforcement techniques procedures.
Ex-Director Comey described brief conversation which the President stated hoped the
FBI could see [its] way clear the Flynn matter because Flynn good guy and has been
through lot. Ex-Director Comey said replied only that [Flynn] good guy did
not say would let this go. Again, Defendant claims exemption are contradicted ExDirector Comey testimony and are neither logical plausible. Even the February Memo
did contain such information, could redacted that the remaining portion the memo can produced. See U.S.C. 552(b).
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
Defendant Parte, Camera Submission.
Judicial Watch objects Defendant parte, camera submission. The D.C. Circuit
has noted that the asymmetrical distribution knowledge between the agency and the
requestor FOIA litigation distorts the traditional adversary nature our legal system form dispute resolution. Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145-46
(D.C. Cir. 2006). The Court also has expressed grave reservations regarding nonpublic
government presentations absent sensitive national security concerns, which are not present
here. Campbell, 682 F.2d 265. Accordingly, the district court should attempt develop
complete public record possible. Id.
Defendant flawed use categorical approach its claims exemption further
exacerbates the already asymmetrical distribution knowledge between the parties.
Defendant parte, camera submission effectively deprives Judicial Watch any
meaningful opportunity rebut Defendant claims and deprives the public the opportunity
learn why Defendant seeks shield the February Memo from public scrutiny. the extent
Defendant seeks present any additional evidence support its arguments, should
required the public record.
IV.
Conclusion.
For the foregoing reasons, Defendant motion for summary judgment should denied,
Judicial Watch cross-motion for summary judgment should granted, and the February
Memo should produced Judicial Watch promptly.
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
Dated: November 2017
Respectfully submitted,
/s/ Paul Orfanedes
Paul Orfanedes
D.C. Bar No. 429716
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff Judicial Watch, Inc.
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
CABLE NEWS NETWORK, INC.
Plaintiff,
FEDERAL BUREAU
INVESTIGATION,
Defendant.
____________________________________)
GANNETT SATELLITE INFORMATION
NETWORK, LLC, al.,
Plaintiff,
DEPARTMENT JUSTICE,
Defendant.
____________________________________)
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
Civil Action No. 17-01167 (JEB)
Civil Action No. 17-01175 (JEB)
Civil Action No. 17-01189 (JEB)
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
FREEDOM WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
THE DAILY CALLER NEWS
FOUNDATION,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
Civil Action No. 17-1212 (JEB)
Civil Action No. 17-1830 (JEB)
PLAINTIFF JUDICIAL WATCH RESPONSE DEFENDANTS STATEMENT MATERIAL FACTS NOT DISPUTE AND FURTHER
STATEMENT UNDISPUTED MATERIAL FACTS SUPPORT CROSS-MOTION FOR
SUMMARY JUDGMENT
Plaintiff Judicial Watch, Inc. Judicial Watch counsel and pursuant Local Civil
Rule 7(h), respectfully submits this response Defendants statement material facts not
dispute and further statement undisputed material facts support Plaintiff cross-motion
for summary judgment:
Plaintiff Response Defendants Statement Material Facts Not
Dispute.
Undisputed.
Undisputed.
Undisputed.
-2-
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
Undisputed.
Judicial Watch objects this paragraph because whether information has been
officially acknowledged legal conclusion, not factual assertion, and therefore
inappropriate for inclusion statement material facts. the extent this paragraph contains assertion fact, Judicial Watch disputes it. See generally Statement for the Record, Senate
Select Committee Intelligence, James Comey, June 2017 Stmt. attached hereto
Exhibit Transcript Senate Intelligence Committee Hearing, June 2017 Tr.
attached hereto Exhibit
Undisputed.
Judicial Watch objects this paragraph because not specific any particular
one-on-one conversation between Director Comey and the President. Judicial Watch disputes
the assertion with respect the only conversation material Judicial Watch request the
February 14, 2017 conversation. Tr. and 51.
Judicial Watch objects this paragraph because whether information has been
officially acknowledged legal conclusion, not factual assertion, and therefore
inappropriate for inclusion statement material facts. the extent this paragraph contains assertion fact, Judicial Watch disputes it. See generally Stmt.; Tr.
Judicial Watch has independent knowledge CNN request, which
immaterial adjudication Judicial Watch request.
10.
Judicial Watch has independent knowledge CNN request, which
immaterial adjudication Judicial Watch request.
11.
Judicial Watch has independent knowledge USA Today request, which
immaterial adjudication Judicial Watch request.
-3-
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
12.
Judicial Watch has independent knowledge the James Madison
Project/Garrett Graff request, which immaterial adjudication Judicial Watch request.
13.
Judicial Watch has independent knowledge the James Madison
Project/Lance Markay request, which immaterial adjudication Judicial Watch request.
14.
Judicial Watch has independent knowledge the James Madison
Project/Garrett Graff and the James Madison Project/Lance Markay requests, which are
immaterial adjudication Judicial Watch request.
15.
Judicial Watch has independent knowledge the James Madison
Project/Garrett Graff and the James Madison Project/Lance Markay requests, which are
immaterial adjudication Judicial Watch request.
16.
Judicial Watch has independent knowledge the USA Today, James Madison
Project/Garrett Graff, and the James Madison Project/Lance Markay requests, which are
immaterial adjudication Judicial Watch request.
17.
Undisputed.
18.
Undisputed.
19.
Judicial Watch has independent knowledge Freedom Watch request,
which immaterial adjudication Judicial Watch request.
20.
Judicial Watch has independent knowledge Freedom Watch request,
which immaterial adjudication Judicial Watch request.
21.
Judicial Watch has independent knowledge Freedom Watch request,
which immaterial adjudication Judicial Watch request.
22.
Undisputed.
23.
Undisputed.
-4-
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
24.
Plaintiff Judicial Watch unable state whether disputes does not dispute
the facts asserted Defendant this paragraph because Defendant factual assertions concern
the internal operations Defendant are otherwise uniquely known Defendant. See, e.g.,
Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145-46 (D.C. Cir. 2006) (noting
that the asymmetrical distribution knowledge between the agency and the requestor FOIA
litigation distorts the traditional adversary nature our legal system form dispute
resolution.
25. Judicial Watch requested the February Memo only, Defendants factual
assertion immaterial adjudication Judicial Watch request. Judicial Watch disputes that
the February Memo contains information complied for the Russia investigation. See
generally Stmt.; Tr.
26.
Plaintiff Judicial Watch unable state whether disputes does not dispute
the facts asserted Defendant this paragraph because Defendant factual assertions concern
the internal operations Defendant are otherwise uniquely known Defendant. See, e.g.,
Judicial Watch, Inc., 449 F.3d 145-46.
27.
Disputed. Stmt. Tr. 41-42.
28.
Judicial Watch objects this paragraph because policy choice, not factual
assertion, and therefore inappropriate for inclusion statement material facts.
29.
Judicial Watch does not dispute that one vehicle for gathering information about
the U.S. Government capabilities reviewing officially-released information. any
individual organization can review officially-released information for any purpose, the
remaining assertions are immaterial adjudication Judicial Watch request.
-5-
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
30.
Judicial Watch objects this paragraph because immaterial adjudication Judicial Watch request.
31.
Judicial Watch objects this paragraph because whether information has been
officially acknowledged legal conclusion, not factual assertion, and therefore
inappropriate for inclusion statement material facts. Judicial Watch also objects this
paragraph because immaterial adjudication Judicial Watch request.
32.
Judicial Watch objects this paragraph because legal conclusion, not
factual assertion, and therefore inappropriate for inclusion statement material facts.
Judicial Watch also objects this paragraph because immaterial adjudication Judicial
Watch request.
33.
Judicial Watch objects this paragraph because legal conclusion, not
factual assertion, and therefore inappropriate for inclusion statement material facts.
Judicial Watch also objects this paragraph because, Judicial Watch only requested the
February Memo, the identity individuals referenced other memos immaterial
adjudication Judicial Watch request.
34.
Judicial Watch objects this paragraph because legal conclusion, not
factual assertion, and therefore inappropriate for inclusion statement material facts.
Judicial Watch also objects this paragraph because, Judicial Watch only requested the
February Memo, the identity individuals referenced other memos immaterial
adjudication Judicial Watch request.
II.
Plaintiff Statement Undisputed Material Facts Support Cross-Motion
for Summary Judgment.
35.
Director Comey met the President-Elect for the first time January 2017,
Trump Tower New York City. Stmt.
-6-
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
36. that date, Director Comey and other Intelligence Community leaders gave the
President-Elect and members his national security team intelligence briefing, after which
Director Comey met one-on-one with the President Elect. Stmt.
37.
After the meeting, Director Comey began documenting all his one-on-one
meetings with the President. Stmt. Creating written records immediately after one-on-one
conversations with Mr. Trump was practice from that point forward. Id.
38.
When asked why memorialized his one-on-one conversations with President
Trump when had not done with Presidents Bush and Obama, Director Comey stated,
[J]ust gut feeling, laying top all that, that this going important, protect
this organization, that make records this. Tr. 85.
39.
Director Comey was honestly concerned that [the President-Elect] might lie
about the nature our meeting. Although had only met the President-Elect for the first time
that day, Director Comey cited the nature the person that was interacting with and read that person, among the reasons for his concern. Tr. 83; see also Tr. 31-33.
40.
After the inauguration, Director Comey met the President one-on-one January
27, 2017 and again February 14, 2017. Stmt. 2-6. created memos both meetings. Id. and
41.
The February meeting took place the Oval Office and followed larger
meeting with several other, high-level Executive Branch officials. Stmt. The subject the
one-on-one conversation that followed was former National Security Advisor Michael Flynn,
who had resigned the previous day. Id. 4-5.
-7-
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
42.
Director Comey immediately prepared unclassified memo the conversation
about Flynn and discussed the matter with FBI senior leadership. Stmt. decided the
best move would hold it, keep box, document it, already done. Tr. 60.
43.
Director Comey recalled nine one-on-one conversations the four-month period
between January 2017 and April 11, 2017. Stmt. Three were person, and six were
the phone. Id. created records after each our nine conversations. Tr. 33.
didn did for nearly all them especially the ones that were substantive. Id.
44.
According Director Comey, knew there might come day when would
need record what had happened, not just defend myself, but defend the FBI and our
integrity institution and the independence our investigative function. Tr. 33; see also
id. [I]t going important, protect this organization, that make records this.
45. Tuesday, May 2017, the President fired Director Comey. Tr. 15.
46. Friday, May 12, 2017, Ex-Director Comey arranged for friend provide the
February Memo reporter prompt the appointment special counsel. Tr. 84.
judgment was, need get that out into the public square. asked friend mine share the
content the memo with reporter. Didn myself for variety reasons. asked him
because thought that might prompt the appointment special counsel. Id. 84-85; see also
id. 102 asked friend, make sure this gets out.
47.
Ex-Director Comey apparently removed copies his memos from the FBI
some point because gave copy the February Memo his friend share with the
media. Tr. 112.
48.
The friend was later identified Columbia Law School Professor Daniel
Richman. Tr. 85.
-8-
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
49.
The following day, Tuesday, May 16, 2017, The New York Times published
report about the February Memo and its contents. Michael Schmidt, Comey Memo Says
Trump Asked Him End Flynn Investigation, N.Y. TIMES (May 16, 2017).1
50.
That same day, Judicial Watch submitted FOIA request the FBI seeking the
following:
The memorandum written former Director James Comey memorializing his
meeting and conversation with President Trump regarding the FBI investigation potential Russian interference the 2016 United States presidential election.
For purposes clarification, this memorandum was reportedly written
about February 13, 2017 and the subject New York Times article
(enclosed) dated May 16, 2017.
Hardy Decl. para. 37. The request was served via the FBI eFOIAP system and, accordingly,
was received the same day was sent. Id.
51. May 17, 2017, Acting Attorney General Rod Rosenstein appointed
Special Counsel investigate Russian interference with the 2016 presidential election and
related matters, Director Comey intended when disclosed the February Memo the
news media. Hardy Decl. para. Tr. 84-85.
52. June 2017, Ex-Director Comey gave written and oral testimony the
Select Committee. See generally Stmt.; Tr. testified length about his practice
memorializing his one-on-one meetings with the President, their February 14, 2017 meeting, and
the February Memo prepared Ex-Director Comey following that meeting. Id.
53.
Ex-Director Comey written testimony with respect the February 14, 2017
meeting was follows:
Plaintiff respectfully requests that the Court take judicial notice the article
publication, which can accurately and readily determined from sources whose accuracy
cannot reasonably questioned. Fed. Evid. 201(b)(2).
-9-
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
When the door the grandfather clock closed, and were alone, the President
began saying, want talk about Mike Flynn. Flynn had resigned the
previous day. The President began saying Flynn hadn done anything wrong speaking with the Russians, but had let him because had misled the
Vice President. added that had other concerns about Flynn, which did
not specify.
The President then made long series comments about the problem with leaks classified information concern shared and still share. After had spoken
for few minutes about leaks, Reince Priebus leaned through the door the
grandfather clock and could see group people waiting behind him. The
President waived him close the door, saying would done shortly. The
door closed.
The President then returned the topic Mike Flynn, saying, good guy
and has been through lot. repeated that Flynn hadn done anything wrong his calls with the Russians, but had misled the Vice President. then said,
hope you can see your way clear letting this go, letting Flynn go.
good guy. hope you can let this go. replied only that good guy. (In
fact, had positive experience dealing with Mike Flynn when was
colleague Director the Defense Intelligence Agency the beginning
term FBI.) did not say would let this go.
The President returned briefly the problem leaks. then got and left out
the door the grandfather clock, making way through the large group
people waiting there, including Mr. Priebus and the Vice President. immediately prepared unclassified memo the conversation about Flynn and
discussed the matter with FBI senior leadership.
Stmt. 4-5.
54.
Ex-Director Comey testified orally that, when the February 14, 2017 meeting
began, his impression was, something big about happen. Tr. 40. need remember
every single word that spoken. Id.
55.
When Ex-Director Comey was asked was quoting the President exact
words, responded, Correct. Tr. 49; see also id. Those were his exact words,
correct. Ex-Director Comey also testified that remembered every word the President said,
that was very careful choosing the words used respond the President, and that
Case 1:17-cv-01167-JEB Document Filed 11/03/17 Page
remembered saying agree good guy. Id. 55; see also id. 62. chose his
response way saying not agreeing with what you just asked do. Id. 55.
56.
According Ex-Director Comey testimony, wrote the February Memo unclassified that could discussed and shared more easily: thinking was,
write such way that don include anything that would trigger classification, that
make easier for discuss within the FBI and the government and hold
way that makes accessible us. Tr. 41-42.
57.
Ex-Director Comey also testified reviewed his memos preparing his written
testimony. Tr. 111.
Dated: November 2017
Respectfully submitted,
/s/ Paul Orfanedes
Paul Orfanedes
D.C. Bar No. 429716
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff
Case 1:17-cv-01167-JEB Document 32-1 Filed 11/03/17 Page
EXHIBIT
Case 1:17-cv-01167-JEB Document 32-1 Filed 11/03/17 Page
Statement for the Record
Senate Select Committee Intelligence
James Comey
June 2017
Chairman Burr, Ranking Member Warner, Members the Committee.
Thank you for inviting appear before you today. was asked testify today describe for you interactions with President-Elect and President Trump
subjects that understand are interest you. have not included every detail
from conversations with the President, but, the best recollection,
have tried include information that may relevant the Committee.
January Briefing first met then-President-Elect Trump Friday, January conference
room Trump Tower New York. was there with other Intelligence
Community (IC) leaders brief him and his new national security team the
findings assessment concerning Russian efforts interfere the
election. the conclusion that briefing, remained alone with the PresidentElect brief him some personally sensitive aspects the information
assembled during the assessment.
The leadership thought important, for variety reasons, alert the
incoming President the existence this material, even though was salacious
and unverified. Among those reasons were: (1) knew the media was about
publicly report the material and believed the should not keep knowledge
the material and its imminent release from the President-Elect; and (2) the
extent there was some effort compromise incoming President, could blunt
any such effort with defensive briefing.
The Director National Intelligence asked that personally this portion the briefing because was staying position and because the material
implicated the FBI counter-intelligence responsibilities. also agreed would alone minimize potential embarrassment the President-Elect. Although agreed made sense for the briefing, the FBI leadership and were
concerned that the briefing might create situation where new President came
into office uncertain about whether the FBI was conducting counter-intelligence
investigation his personal conduct.
Case 1:17-cv-01167-JEB Document 32-1 Filed 11/03/17 Page important understand that FBI counter-intelligence investigations are
different than the more-commonly known criminal investigative work. The
Bureau goal counter-intelligence investigation understand the technical
and human methods that hostile foreign powers are using influence the United
States steal our secrets. The FBI uses that understanding disrupt those
efforts. Sometimes disruption takes the form alerting person who targeted
for recruitment influence the foreign power. Sometimes involves
hardening computer system that being attacked. Sometimes involves
turning the recruited person into double-agent, publicly calling out the
behavior with sanctions expulsions embassy-based intelligence officers.
occasion, criminal prosecution used disrupt intelligence activities.
Because the nature the hostile foreign nation well known, counterintelligence investigations tend centered individuals the FBI suspects witting unwitting agents that foreign power. When the FBI develops
reason believe American has been targeted for recruitment foreign
power covertly acting agent the foreign power, the FBI will open
investigation that American and use legal authorities try learn more about
the nature any relationship with the foreign power can disrupted. that context, prior the January meeting, discussed with the FBI
leadership team whether should prepared assure President-Elect Trump that were not investigating him personally. That was true; did not have open
counter-intelligence case him. agreed should circumstances
warranted. During our one-on-one meeting Trump Tower, based PresidentElect Trump reaction the briefing and without him directly asking the
question, offered that assurance. felt compelled document first conversation with the President-Elect memo. ensure accuracy, began type laptop FBI vehicle
outside Trump Tower the moment walked out the meeting. Creating written
records immediately after one-on-one conversations with Mr. Trump was
practice from that point forward. This had not been practice the past.
spoke alone with President Obama twice person (and never the phone)
once 2015 discuss law enforcement policy issues and second time, briefly,
for him say goodbye late 2016. neither those circumstances did
memorialize the discussions. can recall nine one-on-one conversations with
President Trump four months three person and six the phone.
January Dinner
The President and had dinner Friday, January 6:30 the
Green Room the White House. had called lunchtime that day and
Case 1:17-cv-01167-JEB Document 32-1 Filed 11/03/17 Page
invited dinner that night, saying was going invite whole family, but
decided have just this time, with the whole family coming the next time.
was unclear from the conversation who else would the dinner, although
assumed there would others. turned out just the two us, seated small oval table the
center the Green Room. Two Navy stewards waited us, only entering the
room serve food and drinks.
The President began asking whether wanted stay FBI
Director, which found strange because had already told twice earlier
conversations that hoped would stay, and had assured him that intended to. said that lots people wanted job and, given the abuse had taken during
the previous year, would understand wanted walk away. instincts told that the one-on-one setting, and the pretense that this
was our first discussion about position, meant the dinner was, least part, effort have ask for job and create some sort patronage relationship.
That concerned greatly, given the FBI traditionally independent status the
executive branch. replied that loved work and intended stay and serve out tenyear term Director. And then, because the set-up made uneasy, added that was not reliable the way politicians use that word, but could always count tell him the truth. added that was not anybody side politically
and could not counted the traditional political sense, stance said was
his best interest the President. few moments later, the President said, need loyalty, expect loyalty. didn move, speak, change facial expression any way during the
awkward silence that followed. simply looked each other silence. The
conversation then moved on, but returned the subject near the end our
dinner. one point, explained why was important that the FBI and the
Department Justice independent the White House. said was paradox:
Throughout history, some Presidents have decided that because problems come
from Justice, they should try hold the Department close. But blurring those
boundaries ultimately makes the problems worse undermining public trust
the institutions and their work.
Near the end our dinner, the President returned the subject job,
saying was very glad wanted stay, adding that had heard great things
Case 1:17-cv-01167-JEB Document 32-1 Filed 11/03/17 Page
about from Jim Mattis, Jeff Sessions, and many others. then said, need
loyalty. replied, You will always get honesty from me. paused and then
said, That what want, honest loyalty. paused, and then said, You will get
that from me. wrote the memo created immediately after the dinner,
possible understood the phrase honest loyalty differently, but decided
wouldn productive push further. The term honest loyalty had helped
end very awkward conversation and explanations had made clear what
should expect.
During the dinner, the President returned the salacious material had
briefed him about January and, had done previously, expressed his
disgust for the allegations and strongly denied them. said was considering
ordering investigate the alleged incident prove didn happen. replied
that should give that careful thought because might create narrative that
were investigating him personally, which weren and because was very
difficult prove negative. said would think about and asked
think about it. was practice for conversations with President Trump, wrote
detailed memo about the dinner immediately afterwards and shared with the
senior leadership team the FBI.
February Oval Office Meeting February 14, went the Oval Office for scheduled counterterrorism briefing the President. sat behind the desk and group sat semi-circle about six chairs facing him the other side the desk. The
Vice President, Deputy Director the CIA, Director the National CounterTerrorism Center, Secretary Homeland Security, the Attorney General, and
were the semi-circle chairs. was directly facing the President, sitting
between the Deputy CIA Director and the Director NCTC. There were quite
few others the room, sitting behind couches and chairs.
The President signaled the end the briefing thanking the group and
telling them all that wanted speak alone. stayed chair. the
participants started leave the Oval Office, the Attorney General lingered
chair, but the President thanked him and said wanted speak only with me.
The last person leave was Jared Kushner, who also stood chair and
exchanged pleasantries with me. The President then excused him, saying
wanted speak with me.
When the door the grandfather clock closed, and were alone, the
President began saying, want talk about Mike Flynn. Flynn had resigned
Case 1:17-cv-01167-JEB Document 32-1 Filed 11/03/17 Page
the previous day. The President began saying Flynn hadn done anything
wrong speaking with the Russians, but had let him because had
misled the Vice President. added that had other concerns about Flynn,
which did not then specify.
The President then made long series comments about the problem with
leaks classified information concern shared and still share. After had
spoken for few minutes about leaks, Reince Priebus leaned through the door the grandfather clock and could see group people waiting behind him.
The President waved him close the door, saying would done shortly.
The door closed.
The President then returned the topic Mike Flynn, saying,
good guy and has been through lot. repeated that Flynn hadn done
anything wrong his calls with the Russians, but had misled the Vice President. then said, hope you can see your way clear letting this go, letting Flynn
go. good guy. hope you can let this go. replied only that good
guy. (In fact, had positive experience dealing with Mike Flynn when was
colleague Director the Defense Intelligence Agency the beginning
term FBI.) did not say would let this go.
The President returned briefly the problem leaks. then got and
left out the door the grandfather clock, making way through the large group people waiting there, including Mr. Priebus and the Vice President. immediately prepared unclassified memo the conversation about
Flynn and discussed the matter with FBI senior leadership. had understood the
President requesting that drop any investigation Flynn connection
with false statements about his conversations with the Russian ambassador
December. did not understand the President talking about the broader
investigation into Russia possible links his campaign. could wrong, but
took him focusing what had just happened with Flynn departure and the
controversy around his account his phone calls. Regardless, was very
concerning, given the FBI role independent investigative agency.
The FBI leadership team agreed with that was important not infect
the investigative team with the President request, which did not intend
abide. also concluded that, given that was one-on-one conversation, there
was nothing available corroborate account. concluded made little
sense report Attorney General Sessions, who expected would likely
recuse himself from involvement Russia-related investigations. (He did two
weeks later.) The Deputy Attorney General role was then filled acting
capacity United States Attorney, who would also not long the role.
Case 1:17-cv-01167-JEB Document 32-1 Filed 11/03/17 Page
After discussing the matter, decided keep very closely held, resolving
figure out what with down the road our investigation progressed. The
investigation moved ahead full speed, with none the investigative team
members the Department Justice lawyers supporting them aware the
President request.
Shortly afterwards, spoke with Attorney General Sessions person
pass along the President concerns about leaks. took the opportunity implore
the Attorney General prevent any future direct communication between the
President and me. told the that what had just happened him being asked
leave while the FBI Director, who reports the AG, remained behind was
inappropriate and should never happen. did not reply. For the reasons
discussed above, did not mention that the President broached the FBI potential
investigation General Flynn.
March Phone Call the morning March 30, the President called the FBI.
described the Russia investigation cloud that was impairing his ability act behalf the country. said had nothing with Russia, had not been
involved with hookers Russia, and had always assumed was being recorded
when Russia. asked what could lift the cloud. responded that were investigating the matter quickly could, and that there would
great benefit, didn find anything, our having done the work well.
agreed, but then re-emphasized the problems this was causing him.
Then the President asked why there had been congressional hearing about
Russia the previous week which had, the Department Justice directed,
confirmed the investigation into possible coordination between Russia and the
Trump campaign. explained the demands from the leadership both parties
Congress for more information, and that Senator Grassley had even held the
confirmation the Deputy Attorney General until briefed him detail the
investigation. explained that had briefed the leadership Congress
exactly which individuals were investigating and that had told those
Congressional leaders that were not personally investigating President Trump. reminded him had previously told him that. repeatedly told me, need get that fact out. did not tell the President that the FBI and the Department Justice had been reluctant make public statements that did not have
open case President Trump for number reasons, most importantly because would create duty correct, should that change.)
The President went say that there were some satellite associates his who did something wrong, would good find that out, but that
Case 1:17-cv-01167-JEB Document 32-1 Filed 11/03/17 Page
hadn done anything wrong and hoped would find way get out that
weren investigating him. abrupt shift, turned the conversation FBI Deputy Director
Andrew McCabe, saying hadn brought the McCabe thing because had
said McCabe was honorable, although McAuliffe was close the Clintons and
had given him think meant Deputy Director McCabe wife) campaign
money. Although didn understand why the President was bringing this up,
repeated that Mr. McCabe was honorable person. finished stressing the cloud that was interfering with his ability
make deals for the country and said hoped could find way get out that
wasn being investigated. told him would see what could do, and that
would our investigative work well and quickly could.
Immediately after that conversation, called Acting Deputy Attorney
General Dana Boente (AG Sessions had then recused himself all Russiarelated matters), report the substance the call from the President, and said
would await his guidance. did not hear back from him before the President
called again two weeks later.
April Phone Call the morning April 11, the President called and asked what had
done about his request that get out that not personally under investigation. replied that had passed his request the Acting Deputy Attorney General, but
had not heard back. replied that the cloud was getting the way his
ability his job. said that perhaps would have his people reach out
the Acting Deputy Attorney General. said that was the way his request should
handled. said the White House Counsel should contact the leadership DOJ
make the request, which was the traditional channel. said would that and added, Because have been very loyal
you, very loyal; had that thing you know. did not reply ask him what
meant that thing. said only that the way handle was have the White
House Counsel call the Acting Deputy Attorney General. said that was what would and the call ended.
That was the last time spoke with President Trump.
Case 1:17-cv-01167-JEB Document 32-2 Filed 11/03/17 Page 225
EXHIBIT
Case 1:17-cv-01167-JEB Document 32-2 Filed 11/03/17 Page 225
Transcript Senate Intelligence
Committee Hearing
Date: June 2017
Planet Depos
Phone: 888-433-3767
Fax: 888-503-3767
Email: transcripts@planetdepos.com
www.planetdepos.com
WORLDWIDE COURT REPORTING INTERPRETATION TRIAL SERVICES
Case 1:17-cv-01167-JEB Document 32-2 Filed 11/03/17 Page 225
AUDIO TRANSCRIPTION TESTIMONY JAMES COMEY
BEFORE THE
SENATE SELECT COMMITTEE INTELLIGENCE
JUNE 2017
Job No. 155272
Transcribed by: Annette Montalvo, CSR, RDR, CRR
1-176
Case 1:17-cv-01167-JEB Document 32-2 Filed 11/03/17 Page 225
Transcript Senate Intelligence Committee Hearing
Conducted June 2017
(WHEREUPON, the following was transcribed
from audio recording, wit:)
CHAIRMAN SENATOR RICHARD BURR (R-NC):
like call this hearing order.
Director Comey, and appreciate your
willingness appear before the committee today,
and, more importantly, thank you for your
dedicated service and leadership the Federal
Bureau Investigation.
speaks the trust have built over the years,
and looking forward very open and candid
discussion today.
Your appearance today like remind colleagues that
will reconvene closed session 1:00 p.m. today,
and ask that you reserve for that venue any
questions that might get into classified
information.
his time, but the Vice Chairman and have worked
out very specific timeline for his commitment the Hill, will everything can
meet that agreement.
The directors been very gracious with
The Senate Select Committee Intelligence
PLANET DEPOS
888.433.3767 WWW.PLANETDEPOS.COM
Case 1:17-cv-01167-JEB Document 32-2 Filed 11/03/17 Page 225
Transcript Senate Intelligence Committee Hearing
Conducted June 2017
exists certify for the other members the
United States Senate and the American people that
the intelligence community operating lawfully and
has the necessary authorities and tools
accomplish its mission and keep America safe. our mission, beyond the oversight continue
provide the intelligence community and its
activities, investigate Russian interference the 2016 U.S. elections.
continues.
effort.
Part
The committees work
This hearing represents part that
Jim, allegations have been swirling the
press for the last several weeks, and todays your
opportunity set the record straight.
read with interest your statement for the record,
and think provides some helpful details
surrounding your interactions with the President.
Yesterday clearly lays out your understanding
those discussions, actions you took following each
conversation, and your state mind.
appreciate your candor, and think its helpful work through determine the ultimate truth very much
PLANET DEPOS
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Case 1:17-cv-01167-JEB Document 32-2 Filed 11/03/17 Page 225
Transcript Senate Intelligence Committee Hearing
Conducted June 2017
behind possible Russian interference the 2016
elections.
Your statement also provides texture and
context your interactions with the President from
your vantage point and outlines strained
relationship.
side the story just they need hear the
Presidents descriptions events.
The American people need hear your
These interactions also highlight the
importance the committees ongoing investigation.
Our experienced staff interviewing all relevant
parties and some the most sensitive intelligence our countrys possession. will establish the facts, separate from
rampant speculation, and lay them out for the
American people make their own judgment.
then will nation able move forward and put this episode rest.
Only
Theres several outstanding issues not
addressed your statement that hope youll clear for the American people today.
Presidents request for loyalty, your impression,
Did the
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that that the one-on-one dinner January 27th
was, and quote, least part effort
create some sort patronage relationship, his
March 30th phone call asking what you could
lift the cloud Russia investigation any way,
alter your approach the FBIs investigation into
General Flynn, the broader investigation into
Russia and possible links the campaign.
opinion, did potential Russian efforts establish
links with individuals the Trump orbit rise
the level could define collusion?
counterintelligence concern? your was
Theres been significant public
speculation about your decision-making related
the Clinton e-mail investigation.
decide publicly publicly announce FBIs
recommendations that the Department Justice not
pursue criminal charges?
choice between bad decision and worse decision.
The American people need understand the facts
behind your action.
Why did you
You have described
This committee uniquely suited
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investigate Russias interference the 2016
elections.
approach what highly charged partisan issue.
Russian activities during 2016 election may have
been aimed one partys candidate, but
colleague Senator Rubio says frequently, 2018 and
2020, could aimed anyone, home
abroad. also have unified, bipartisan colleague Senator Warner and have
worked have worked stay lockstep this
investigation.
approach, times, but Ive constantly stressed
that need team, and think Senator
Warner agrees with me.
Weve had our differences must keep these questions above politics
and partisanship. anyone trying score political points.
Its too important tainted
With that, again, welcome you, Director,
and turn the Vice Chairman for any comments
might have.
SENATOR MARK WARNER (D-VA):
Well, thank
you, Mr. Chairman.
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And let start again actually thanking
all the members the committee for the seriousness which theyve taken this task.
Mr. Comey, thank you for agreeing come
testify part this committees investigation
into Russia.
obviously, the focus lot Washington the
last few days.
may tuning today probably havent focused
every twist and turn the investigation. realize that this hearing has been,
But the truth is, many Americans who like briefly describe, least
from this senators standpoint, what already know
and what were still investigating.
this whole investigation not about relitigating
the election. sure heck not about Democrats versus
Republicans. clear,
Its not about who won lost.
And
Were here because foreign adversary
attacked right here home, plain and simple,
not guns missiles, but foreign operatives
seeking hijack our most important democratic
process, our presidential election.
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Russian spies engaged series online
cyber raids and broad campaign disinformation,
all ultimately aimed sowing chaos undermine
public faith our process, our leadership, and,
ultimately, ourselves.
senators opinion.
determination the entire U.S. intelligence
community.
the Russians did, and, candidly, some other
colleagues have mentioned, why they were
successful.
determine the necessary steps take protect our
democracy and ensure they cant again.
And thats not just this the unanimous must find out the full story, what
And, more importantly, must
The Chairman mentioned elections 2018 and
2020.
elections this year, 2017.
let anything anyone prevent from getting
the bottom this. home state Virginia, have
Simply put, cannot
Now, Mr. Comey, let say the outset,
havent always agreed every issue. fact, Ive
occasionally questioned some the actions youve
taken.
But Ive never had any reason question
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your integrity, your expertise, your
intelligence.
this committee and have been willing speak truth power, even the risk your own career, which
makes the way which you were fired the
President ultimately shocking.
Youve been straight shooter with
Recall, began this entire process with
the President and his staff first denying that the
Russians were ever involved, and then falsely
claiming that one from his team was ever touch
with any Russians. know thats just not the truth.
Numerous
Trump associates had undisclosed contacts with
Russians before and after the election, including
the Presidents attorney general, his former
national security adviser, and his current senior
adviser, Mr. Kushner.
That doesnt even begin count the host
additional campaign associates and advisers whove
also been caught this massive web.
Mr. Trumps campaign manager, Mr. Manafort, forced step down over ties Russian-backed entities.
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The national security adviser, General Flynn, had
resign over his lies about engagements with the
Russians. odd and unexplained affection for the Russian
dictator, while calling for the hacking his
opponent.
fact, that then Director Comey publicly acknowledged
that was leading investigation into those
links between Mr. Trumps campaign and the Russian
government.
And saw the candidate himself express
Theres lot investigate.
Enough, the director the FBI, Mr. Comey was
ultimately responsible for conducting that
investigation, which might explain why youre
sitting now private citizen.
What didnt know was the same time
that this investigation was proceeding, the
President himself appears have been engaged
effort influence, least co-opt, the
director the FBI.
The testimony that Mr. Comey has submitted
for todays hearing very disturbing.
For
example, January 27th, after summoning Director
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Comey dinner, the President appears have
threatened the directors job while telling him,
quote, need loyalty. expect loyalty. later meeting February 14th, the
President asked the attorney general leave the
Oval Office that could privately ask Director
Comey, again, quote, see way clear letting
Flynn go.
That statement that Director Comey
interpreted request that drop the
investigation connected General Flynns false
statements.
United States asking the FBI director drop
ongoing investigation.
President called the FBI director two additional
occasions, March 30th and April 11th, and asked him
again, quote, lift the cloud the Russian
investigation.
Think about it:
The President the
And, after that, the
Now, Director Comey denied each these
improper requests.
The loyalty pledge, the
admonition drop the Flynn investigation, the
request lift the cloud the Russia
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investigation.
Director Comey was fired. course, after his refusals,
The initial explanation for the firing
didnt pass any smell test.
was fired because didnt treat Hillary Clinton
appropriately.
about day, because the President himself then made
very clear that was thinking about Russia when
decided fire Director Comey. now Director Comey course, that explanation lasted
Shockingly, reports suggest that the
President admitted much Oval Office meeting
with the Russians the day after Director Comey was
fired, disparaging our countrys top law enforcement
official quote-unquote, nut job.
President allegedly suggested that his firing
relieved great pressure his feelings about
Russia.
The
This not happening isolation. the
same time the President was engaged these efforts
with Director Comey, was also, least
allegedly, asking senior leaders the intelligence
community downplay the Russia investigation
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intervene with the director.
Yesterday had DNI Director Coats and NSA
Director Admiral Rogers, who were offered number opportunities flatly deny those press reports.
They expressed their opinions, but they did not take
that opportunity deny those reports.
They did
not take advantage that opportunity.
belief, thats not how the President the United
States should behave.
Regardless the outcome our
investigation into the Russia links, Director
Comeys firing and his testimony raise separate and
troubling questions that must get the bottom
of.
firsthand how seriously every member this
committee taking his work.
committees efforts far.
Again, said the outset, Ive seen
Let clear: proud the
This not witch hunt.
This not fake news.
our country from new threat that, quite honestly,
will not away any time soon. effort protect
So, Mr. Comey, your testimony here today
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will help move towards that goal. look forward that testimony.
Thank you, Mr. Chairman.
CHAIRMAN BURR:
Director, discussed when you agreed
Thank you, Vice Chairman.
appear before the committee, would under oath. ask you please stand.
Raise your right hand. you solemnly swear tell the truth, the
whole truth, and nothing but the truth, help you
God?
MR. COMEY (off mike): do.
CHAIRMAN BURR:
Director Comey, youre now under oath.
And would just note members, you will
Please seated. recognized seniority for period seven
minutes.
closed session later than 1:00 p.m.
And, again, the intent move
With that, Director Comey, you are
recognized.
might need.
You have the floor for long you
MR. COMEY:
Thank you, Mr. Chairman.
Ranking Member Warner, members the committee,
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thank you for inviting here testify today.
Ive submitted statement for the record
and not going repeat here this morning.
thought would just offer some very brief
introductory remarks, and then would welcome your
questions.
When was appointed FBI director 2013,
understood that served the pleasure the
President.
term, which Congress created order underscore
the importance the FBI being outside politics
and independent, understood that could fired president for any reason for reason
all.
Even though was appointed 10-year
And May the 9th, when learned that
had been fired, for that reason, immediately came
home private citizen.
explanations, the shifting explanations, confused
and increasingly concerned me.
But then, the
They confused because the President and
had had multiple conversations about job, both
before and after took office.
And had
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repeatedly told was doing great job and
hoped would stay.
him that did intend stay and serve out the
remaining six years term.
repeatedly that had talked lots people
about me, including our current attorney general,
and had learned that was doing great job and
that was extremely well-liked the FBI
workforce.
And had repeatedly assured told confused when saw television
the President saying that actually fired
because the Russia investigation and learned,
again from the media, that was telling, privately
other parties that firing had relieved great
pressure the Russia investigation. was also confused the initial
explanation that was offered publicly, that was
fired because the decisions had made during the
election year.
whole bunch reasons, including the time and all
the water that had gone under the bridge since those
hard decisions that had made.
That didnt make sense for
That didnt
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make any sense me.
And although the law required reason
all fire FBI director, the administration then
chose defame and, more importantly, the FBI
saying that the organization was disarray, that was poorly led, that the workforce had lost
confidence its leader.
Those were lies, plain and simple, and sorry that the FBI workforce had hear them and sorry that the American people were told
them. worked every day the FBI help make
that great organization better.
And say help
because did nothing alone the FBI. indispensable people the FBI.
organizations great strength that its values and
abilities run deep and wide.
without me.
pursued its people, and that mission
protect the American people and uphold the
Constitution the United States.
miss being part that mission, but this
There are
The
The FBI will fine
The FBIs mission will relentlessly will deeply
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organization and its mission will long beyond and long beyond any particular administration. have message before close for the former colleagues the FBI.
the American people know this truth:
honest.
always will be, independent.
The FBI strong.
But, first, want
The FBI
And the FBI is, and
And now former colleagues, may. sorry that didnt get the chance say
goodbye you properly.
life serve beside you, part the FBI
family, And will miss for the rest life.
Thank you for standing watch. much good for this country. ever you can. was the honor
Thank you for doing that good long
And, Senators, look forward your
questions.
CHAIRMAN BURR:
Director, thank you for that
testimony, both oral and the written testimony that
you provided the committee yesterday and made
public the American people.
The Chair would recognize himself, first,
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for minutes, Vice Chair for minutes, based
upon the agreement have.
Director, did the Special Counsels Office
review and/or edit your written testimony?
MR. COMEY:
CHAIRMAN BURR:
No. you have any doubt that
Russia attempted interfere the 2016 elections?
MR. COMEY:
None.
CHAIRMAN BURR: you have any doubt that
the Russian government was behind the intrusions
the DNC and the DCCC systems and the subsequent
leaks that information?
MR. COMEY:
No, doubt.
CHAIRMAN BURR: you have any doubt that
the Russian government was behind the cyber
intrusion the state voter files?
MR. COMEY:
No.
CHAIRMAN BURR: you have any doubt that
officials the Russian government were fully aware these activities?
MR. COMEY: doubt.
CHAIRMAN BURR:
Are you confident that
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votes cast the 2016 presidential election were
altered?
MR. COMEY: confident. the time
when left director, had seen indication
that whatsoever.
CHAIRMAN BURR:
Director Comey, did the
President any time ask you stop the FBI
investigation into Russian involvement the 2016
U.S. elections?
MR. COMEY:
Not understanding, no.
CHAIRMAN BURR:
Did any individual working
for this administration, including the Justice
Department, ask you stop the Russian
investigation?
MR. COMEY:
No.
CHAIRMAN BURR:
Director, when the President
requested that you, and quote, let Flynn go,
General Flynn had unreported contact with the
Russians, which offense.
accounts are right, there might have been
discrepancies between facts and his FBI testimony.
And press your estimation, was General Flynn
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that time serious legal jeopardy?
addition that, you sense that the President
was trying obstruct justice just seek for
way for Mike Flynn save face, given had
already been fired?
MR. COMEY:
And
General Flynn that point
time was legal jeopardy.
There was open FBI
criminal investigation his statements
connection with the Russian contacts and the
contacts themselves. the time.
And that was assessment dont think its for say whether the
conversation had with the President was effort obstruct.
very concerning, but thats conclusion sure
the special counsel will work towards, try and
understand what the intention was there, and whether
thats offense. took very disturbing thing,
CHAIRMAN BURR:
Director, possible
that part this FBI investigation, the FBI
could find evidence criminality that not tied the 2016 elections, possible collusion,
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coordination with Russians?
MR. COMEY:
Sure.
CHAIRMAN BURR: there could something
that just fits criminal aspect this that
doesnt have anything with the 2016 election
cycle?
MR. COMEY:
Correct. any complex
investigation, when you start turning over rocks,
sometimes you find things that are
VOICE:
MR. COMEY:
(Off mike)
Amen. unrelated the primary
investigation that are criminal nature.
CHAIRMAN BURR:
Director Comey, you have
been criticized publicly for the decision present
your findings the e-mail investigation directly the American people.
since that time that wouldve changed what you said how you chose inform the American people?
MR. COMEY:
Have you learned anything
Honestly, no. mean, caused whole lot personal pain for me, but look
back, given what knew the time and even what
Ive learned since, think was the best way
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try and protect the justice institution, including
the FBI.
CHAIRMAN BURR: the public domain this
question the Steele dossier, document that has
been around, now, for over year.
when the FBI first took possession it, but the
media had before you had and had it. not sure the time your departure from the FBI,
was the FBI able confirm any criminal allegations
contained the Steele document?
MR. COMEY:
Mr. Chairman, dont think
thats question can answer open setting
because goes into the details the
investigation.
CHAIRMAN BURR:
Director, the term hear
most often collusion.
describing possible links between Americans and
Russian government entities related the
interference our election, would you say that
its normal for foreign governments reach out
members incoming administration?
MR. COMEY:
When people are
Yes.
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CHAIRMAN BURR: what point does the
normal contact cross the line into attempt
recruit agents influence spies?
MR. COMEY:
Difficult say the
abstract.
theres effort keep covert, what the nature the requests made the American the foreign
government are.
based whole lot facts. depends upon the context, whether
Its its judgment call
CHAIRMAN BURR: what point would that
recruitment become counterintelligence threat
our country?
MR. COMEY:
Again, difficult answer
the abstract.
using especially coercion some sort pressure try and co-opt American, especially
government official act its behalf, thats
serious concern the FBI and the heart the
FBIs counterintelligence mission.
But when when foreign power
CHAIRMAN BURR: youve got
36-page document specific claims that are
out there, the FBI would have to, for
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counterintelligence reasons, try verify anything
that might claimed there, one, and probably
first and foremost, the counterintelligence
concerns that have about blackmail? accurate statement?
MR. COMEY:
Yes.
Would that the FBI receives
credible allegation that there some effort
co-opt, coerce, direct, employ covertly American behalf the foreign power, thats the basis
which counterintelligence investigation opened.
CHAIRMAN BURR:
And when you read the
dossier, what was your reaction, given that was
100 percent directed the President-elect?
MR. COMEY:
Not question can answer open setting, Mr. Chairman.
CHAIRMAN BURR:
aware the cyber intrusion?
MR. COMEY:
Okay.
When did you become
The first cyber was all
kinds cyber intrusions going all the time.
The first Russia-connected cyber intrusion, became
aware the late summer 2015.
CHAIRMAN BURR:
And that timeframe, there
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were more than the DNC and the DCCC that were
targets?
MR. COMEY:
Correct.
There was massive
effort target government and nongovernmental
near-governmental agencies like nonprofits.
CHAIRMAN BURR:
What would the estimate how many entities out there the Russians
specifically targeted that timeframe?
MR. COMEY:
Its hundreds. suppose
could more than 1,000, but its least
hundreds.
CHAIRMAN BURR:
When did you become aware
that data had been exfiltrated?
MR. COMEY: not sure, exactly.
either late early 16.
CHAIRMAN BURR: think
And did did you, the
director the FBI, have conversations with the
last administration about the risk that this posed?
MR. COMEY:
CHAIRMAN BURR:
will, what actions they took.
MR. COMEY:
Yes.
And share with us, you
Well, the FBI had already
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undertaken effort notify all the victims, and
thats what consider the entities that were
attacked part this massive spear phishing
campaign.
disrupt what might ongoing.
And notified them effort
Then there was series continuing
interactions with entities through the rest
into 16, and then throughout the Administration
was trying decide how respond the intrusion
activity that saw.
CHAIRMAN BURR:
And the FBI, this case,
unlike other cases that you might investigate did
you ever have access the actual hardware that was
hacked?
provide you the data that they had collected? did you have rely third party
MR. COMEY: the case the DNC, and,
believe, the DCCC, but sure the DNC, did not
have access the devices themselves.
relevant forensic information from private party, high-class entity, that had done the work.
didnt get direct access.
CHAIRMAN BURR: got
But content?
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MR. COMEY:
CHAIRMAN BURR:
Correct.
Isnt content important
part the forensics, from counterintelligence
standpoint?
MR. COMEY: is, although what was briefed folks, the people who were folks
the time, that they had gotten the information
from the private party that they needed
understand the intrusion the spring 2016.
CHAIRMAN BURR:
Let back, can,
very briefly, the decision publicly out
with your results the e-mail.
Was your decision influenced the attorney
generals tarmac meeting with the former President
Bill Clinton?
MR. COMEY:
Yes. ultimately
conclusive way, that was the thing that capped
for me, that had something separately
protect the credibility the investigation, which
meant both the FBI and the Justice Department.
CHAIRMAN BURR:
Were there other things that
contributed that that you can describe open
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session?
MR. COMEY:
There were other things that
contributed that. know the committees been briefed on.
been some public accounts which are nonsense,
but understand the committees been briefed the
classified facts.
One significant item cant,
Theres
Probably the only other consideration that
guess can talk about open setting is, one
point, the attorney general had directed not
call investigation, but instead call
matter, which confused and concerned me.
that was one the bricks the load that led conclude, have step away from the department were close this case credibly.
CHAIRMAN BURR:
But
Director, last question:
Youre not only seasoned prosecutor, youve led
the FBI for years.
process.
and were grateful you because think weve
weve mutually built trust what your organization
does and and what do.
You understand the investigative
Youve worked with this committee closely,
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committee can carry out its oversight role the
2016 Russian involvement the elections
parallel with the now special counsel thats been
set up?
MR. COMEY: doubt. can done. requires lots conversations, but Bob Mueller one this countrys great, great pros, And
sure you all will able work out with him, run parallel.
CHAIRMAN BURR: want thank you once
again, and want turn the vice chairman.
VICE CHAIRMAN SENATOR MARK WARNER (D-VA):
Thank you, Mr. Chairman.
And, again, Director Comey, thank you for
your service, and your comments your FBI family
know were heartfelt.
are some the Administration whove tried smear
your reputation, you had Acting Director McCabe
public testimony few weeks back and public
testimony yesterday reaffirm that the vast majority the FBI community had great trust your
Know that even though there
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leadership and, obviously, trust your integrity. want through number the
meetings that you referenced your testimony.
And
lets start with the January 6th meeting Trump
Tower, where you went with series officials brief the President-elect the Russia
investigation.
afterwards brief him on, again, quote, some
personally sensitive aspects the information you
relayed. understanding you remained
Now, you said after that briefing you felt
compelled document that conversation, that you
actually started documenting soon you got into
the car.
Now, youve had extensive experience the
Department Justice and the FBI.
under presidents both parties.
that meeting that led you determine that you
needed start putting down written record?
MR. COMEY:
Youve worked
What was about combination things.
think the circumstances, the subject matter and the
person was interacting with.
Circumstances,
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first, was alone with the President the United
States the President-elect, soon
President.
matters that touch the FBIs core responsibility
and that relate the President, President-elect
personally.
was honestly concerned that might lie about the
nature our meeting, and thought really
important document.
The subject matter, was talking about
And then the nature the person.
That combination things, never
experienced before, but led believe Ive
got write down, and Ive got write down very detailed way.
SENATOR WARNER: think thats very
important statement you just made.
understanding that then, again, unlike your
dealings with presidents either parties your
past experience, every subsequent meeting
conversation with this President, you created
written record.
And
Did you feel that you needed create this
written record these memos because they might
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Case 1:17-cv-01167-JEB Document 32-2 Filed 11/03/17 Page 225
Transcript Senate Intelligence Committee Hearing
Conducted June 2017
need relied some future date?
MR. COMEY:
Sure. created records after
conversations, and think did after each
our nine conversations.
nearly all them, especially the ones that were
substantive. didnt, did for knew that there might come day when
would need record what had happened, not just defend myself, but defend the FBI and and
our integrity institution and the independence our investigative function.
this difficult, was combination
circumstances, subject matter, and the particular
person.
SENATOR WARNER:
Thats what made
And all your
experience, this was the only president that you
felt like, every meeting, you needed document,
because some point, using your words, might
put out non-truthful representation that
meeting?
Now, Mark
MR. COMEY:
Thats right, Senator.
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