Weekly Update: JW Pursues Comey Records
JUNE 16, 2017
The Swamp creatures in Washington who gamed the system to appoint a special prosecutor need to be held accountable.
Your Judicial Watch is focusing on James Comey, the former FBI Director who spirited away government documents, then arranged for the contents of those documents to be leaked to the media to force the appointment of a special prosecutor. We aim to get the bottom of both the records’ removal and the leaks to the media, then hold accountable the persons who were involved.
Just today, we sued the Justice Department, which oversees the FBI, for a key Comey memo. The lawsuit seeks access to a memorandum Comey wrote after a private meeting with President Trump regarding the pending investigation of Gen. Mike Flynn and potential Russian interference in the 2016 presidential election (Judicial Watch v. U.S. Department of Justice (No. 1:17-cv-01189).
We filed the suit here in DC, after the Department of Justice failed to respond to our May 16 FOIA request for:
The memorandum written by former Director James Comey memorializing his meeting and conversation with President Trump regarding the FBI’s investigation of potential Russian interference in the 2016 United States presidential election. For purposes of clarification, this memorandum was reportedly written on or about February 13, 2017 and is the subject of a New York Times article … dated May 16, 2017.
The memo purportedly recounts a conversation between President Trump and Comey about Flynn.
(Judicial Watch is pursuing six FOIA lawsuits (see here, here, here, here, here and here) related to the surveillance and unmasking President Trump’s associates during the FBI’s investigation of potential Russian involvement and the subsequent leaking of information about that investigation to the media.)
Having to sue to get a document leaked to The New York Times is a scandal. The memo should be released forthwith, and, frankly, the president can and should order its immediate release.
But the lawsuit was only one of several significant actions we took this week. Yesterday we sent acting FBI Director Andrew G. McCabe a letter reminding him about the FBI’s legal obligation under the Federal Records Act (FRA) to recover records removed from the agency, including Comey’s memos apparently taken by Comey when he left the FBI and subsequently leaked to the media.
My June 14 letter states:
As you are well aware, former FBI Director James Comey gave sworn testimony last week before the Senate Select Committee on Intelligence. Among other things, Mr. Comey confirmed that, while in office, he created various memoranda regarding his meetings with President Trump. Mr. Comey also confirmed that, after his departure from the FBI, he provided at least some of these memoranda to a third party, Columbia Law School Professor Daniel Richman, for the purpose of leaking them to the press. Various media outlets now have reported that Professor Richman has provided these memoranda to the FBI. It is unclear whether he still retains copies of the memoranda.
I am writing to you on behalf of Judicial Watch, Inc., a not-for-profit educational organization that seeks to promote transparency, accountability, and integrity in government and fidelity to the rule of law. In furtherance of its public interest mission, Judicial Watch regularly requests access to the records of the FBI through the Freedom of Information Act and disseminates its findings to the public. In fact, on May 16, 2017, Judicial Watch submitted a FOIA request seeking these specific memoranda removed from the FBI by Mr. Comey. Judicial Watch also has pending FOIA lawsuits in which the memoranda may be at issue.
These memoranda were created by Mr. Comey while serving as FBI director, were written on his FBI laptop, and concerned official government business. As such, they indisputably are records subject to the Federal Records Act. 44 U.S.C. §§ 2101-18, 2901-09, 3101-07, and 3301-14. The fact that Mr. Comey removed these memoranda from the FBI upon his departure, apparently for the purpose of subsequently leaking them to the press, confirms the FBI’s failure to retain and properly manage its records in accordance with the Federal Records Act. Even if Mr. Comey no longer has possession of these particular memoranda, as he now claims, some or all of these memoranda may still be in possession of a third party, such as Professor Richman, and must be recovered. Mr. Comey’s removal of these memoranda also suggests that other records may have been removed by Mr. Comey and may remain in his possession or in the possession of others. If so, these records must be recovered by the FBI as well.
As you may be aware, the Federal Records Act imposes a direct responsibility on you to take steps to recover any records unlawfully removed from the FBI. Specifically, upon learning of “any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the agency,” you must notify the Archivist of the United States. 44 U.S.C. § 3106. Upon learning that records have been unlawfully removed from the FBI, you then are required to initiate action through the Attorney General for the recovery of records. Id.
In the event you fail to take these steps, you should be aware that Judicial Watch is authorized under the law to file a lawsuit in federal district court seeking that you be compelled to comply with the law. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955 (D.C. Cir. 2016); Armstrong v. Bush, 924 F.2d 282,296 (D.C. Cir. 1991). Please advise us no later than June 26, 2017 if you intend to take the action required under the law. If we do not hear from you by that date, we will assume that you do not intend to take any action. Thank you for your attention to this matter.
Mr. Comey left the FBI with government records, and the FBI and Justice Department are obligated to get them back. If they don’t, we may sue to try to force them to do so.
The Obama administration waged an extraordinary assault on our rule of law in its blatantly leftist abuses of our system of governance. Among them was an Obama shakedown scheme directed at corporations.
We just filed a Freedom of Information Act (FOIA) lawsuit against the U.S. Department of Justice for records relating to an Obama administration policy of settling agency lawsuits against corporate defendants by requiring that the corporations make “donations” to left-wing interest groups La Raza, the Urban League and the National Community Reinvestment Coalition. We filed the suit in the U.S. District Court for the District of Columbia (Judicial Watch v. U.S. Department of Justice (No. 1:17-cv-01064)).
We sued after the Justice Department failed to respond to our April 7, 2017, FOIA request seeking: “All records discussing the policy or practice of settling [Department of Justice] lawsuits against corporate defendants by requiring donations to La Raza, the Urban League or the National Community Reinvestment Coalition.” The time frame of the request is January 1, 2013, through January 20, 2017.
We submitted our FOIA request in the aftermath of an extensive investigation by the House Judiciary and Financial Services Committee that found the Obama Department of Justice had “engaged in a pattern or practice of systematically subverting Congress’ budget authority by using settlements from financial institutions to funnel money to left-wing activist groups.”
The investigation, announced in February by House Judiciary Committee Chairman Bob Goodlatte (R-VA), revealed that the Justice Department used the mandatory “donations” to direct nearly a billion dollars to liberal activist groups over the past two years. According to the investigation, “activist groups which stood to gain from mandatory donation provisions were involved in placing those provisions in the settlements.”
Goodlatte also disclosed that in a January 10, 2017, letter to Attorney General Loretta Lynch, the Judiciary Committee requested that the Justice Department preserve official records pertaining to its settlements practices:
Of particular interest are [Department of Justice’s] pursuit, since 2013, of civil settlements that provide for or direct payments to non-victim third-parties, [Department of Justice’s] policies and practices relating to the settlement and administrative processing of class actions, and more generally, cases in which payment was sought from the Judgment Fund, including [Department of Justice’s] efforts to settle with insurers claiming “risk corridor” payments under the Patient Protection and Affordable Care Act.
In a March 1 report, Fox News outlined how what it termed the “slush fund” worked:
Findings spearheaded by the House Judiciary Committee point to a process shrouded in secrecy whereby monies were distributed to a labyrinth of nonprofit organizations involved with grass-roots activism.
“Advocates for big government and progressive power are using the Justice Department to extort money from corporations,” Judicial Watch’s Tom Fitton told Fox News. “It’s a shakedown. It’s corrupt, pure and simple.”
When big banks are sued by the government for discrimination or mortgage abuse, they can settle the cases by donating to third-party non-victims. The settlements do not specify how these third-party groups could use the windfall.
Opponents of the Justice Department’s program have argued that settlements from corporations rightly belonged to taxpayers and should have gone to the Treasury Department. The Justice Department countered that it could bypass Treasury and dispense the money to select non-profit organizations favored by the Obama administration because the corporations’ “donations” are voluntary.
(This isn’t our first suit on this issue. In 2010 we filed a FOIA lawsuit seeking information about the controversial use of the funds, as well as the general policies regarding the selection of “qualified organizations” benefiting from large cash settlements from the Justice Department’s Civil Rights Division’s discrimination lawsuits when those organizations were not officially connected to the lawsuits.)
Thankfully, the new leadership at the Trump Justice Department shut this racket down last week. Attorney General Jeff Sessions issued a memo on June 7, 2017, “to all Department of Justice components and 94 United States Attorney’s Offices prohibiting them from entering into any agreement on behalf of the United States in settlement of federal claims or charges that directs or provides for a settlement payment to non-governmental, third parties that were not directly harmed by the conduct.”
It is hard to imagine a more abusive practice by the Obama Justice Department than shaking down corporations in order to funnel billions of dollars that should belong to the taxpayers into the pockets of the former president’s pet liberal causes. We’re pleased that Attorney General Sessions shut down this racket, but now we need accountability to the American people.
The pernicious, racialist policies of the Obama administration continue to haunt our government here in Washington. Your Judicial Watch is ever-vigilant in this regard!
Accordingly, we filed an official opposition to an Office of Management and Budget (OMB) proposal to add a new Middle Eastern-North African (MENA) ethnic category to the 2020 U.S. Census.
In March 2017, the Obama-controlled OMB presented the proposal, developed by the Federal Interagency Working Group for Research on Race and Ethnicity, which would allow people to specify Middle Eastern and North African national origins and ethnic affiliations along with traditional race identifiers such as “white” or “black.” Racial classifications in the U.S. Census have been unchanged since 1997.
We said in our opposition that we have “serious concerns about the proposal and submits that OMB should reject the Working Group’s proposal to establish a new pan-ethnic, pan-national classification for Middle Eastern and North African (MENA) as a distinct reporting category.”
JW highlighted how the “primary effect of systematic reliance on crude racial categories is to perpetuate misinformation and reinforce irrational beliefs and stereotypes about others.”
We cited the American Anthropological Association, which says that racial categories do not bear scientific scrutiny:
“Genetic data show that, no matter how racial groups are defined, two people from the same racial group are about as different from each other as two people from any two different racial groups …” [While Americans] “have been conditioned to viewing human races as natural and separate divisions within the human species based on visible physical differences,” [the] “vast expansion of scientific knowledge in this century” [shows] “that human populations are not unambiguous, clearly demarcated, biologically distinct groups.”
The MENA classification “does not appear anywhere else in the world, not even in the region defined by the proposed MENA category,” we noted. “Yet, the OMB may now institutionalize this useless, new classification.”
We argue that the MENA category will lead to “less precise and more arbitrary data classifications that, contrary to OMB’s disclaimer, will be used to combine and recast numerous small groups of individuals, with different ethnic origins, into one homogenized minority group.”
The Working Group’s report indicates that the MENA classification will include individuals “having origins” from any one of 27 countries, spanning three continents. “The distance between some of these points exceeds 2,500 miles,” we noted.
An Arab American Institute supporting the new classification and MENA Advocacy Network representative estimated there were 3.2 million U.S. residents who possibly could be identified as having MENA “ancestry.” That amounts to less than one percent of the total population, we noted. “Given the Working Group’s finding that only 33.9 percent of those residents see themselves as MENA exclusively, the projected MENA-classified population” may be as small as “about 0.34 percent of the population.”
Let’s cut to the chase. This new racial category is a sop to Islamist activists seeking to gain political power and government benefits. By adding “Middle Eastern” to the already divisive government racial categories, Americans can expect all sorts of negative consequences, such as “civil rights” lawsuits over criticism of Islam.
Let’s hope the Trump administration kills this racially-divisive gambit by the lame duck Obama administration.
Until next week …