CNN, USA Today, the Daily Caller, Judicial Watch and other outlets brought a Freedom of Information Act lawsuit against the FBI to obtain copies of the memos former FBI Director James Comey wrote to document his conversations with President Trump. Comey, you may recall, strategically leaked a memo or two to his friend Daniel Richman, a professor at Columbia Law School, under orders to leak the contents to the New York Times. When President Trump fired Comey, Comey sought the appointment of Special Counsel to remove Trump from office. And not just any Special Counsel — Comey desired the appointment of his friend Robert Mueller.
Richman followed orders. He called the Times. He read parts of one or more of the memos to the Times. The Times published a page-one story by Michael Schmidt with Comey’s account. The appointment of Robert Mueller as Special Counsel ensued. Comey is, let it be noted, one sophisticated operator.
The FBI has refused to produce the requested memos. It asserts that the release of the memos would interfere with the Mueller’s ongoing investigation into links between Russia and Trump’s 2016 campaign team.
Both sides put the issue to Judge James Boasberg of the DC federal district court. Judge Boasberg himself reviewed the memos. He took evidence in the form of two affidavits from David W. Archey, a Deputy Assistant Director with the Counterintelligence Division, who currently supervises all FBI personnel assigned to the investigation into Russia’s interference with the election. He also heard from Mueller attorney Michael R. Dreeben. The affidavits and testimony were submitted to the judge outside the presence plaintiffs’ counsel (ex parte) and have been sealed.
The Freedom of Information Act includes nine numbered exemptions. Judge Boasberg’s opinion recounts the factual and procedural background of the case and sets forth the legal analysis applicable to FOIA exemption 7(A), the exemption that protects from disclosure “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings…”
Judge Boasberg holds that the Comey memos, “at least for now, will remain in the hands of the Special Counsel and not the public.” Judge Boasberg notes: “Although the Government has been tight-lipped in its briefing about exactly why the Special Counsel compiled these Memos, the First Archey Declaration confirms that the Office did so for law-enforcement purposes — i.e., in service of that investigation.”
If I didn’t say so, someone would emphasize that Judge Boasberg is an Obama appointee and suggest that there is something nefarious about his ruling. I think his opinion is well written and well reasoned. Perhaps the most arguable portion of his ruling relates to his withholding of the memo(s) leaked to Richman, discussed at pages 17-21, but even here the opinion is strong.
Richman, incidentally, says he has returned the memos to the FBI. Having been inserted into the middle of this affair by his good friend Comey, Richman served his purpose. Now he has extricated himself. He too knows what he is doing.
In any event — and this is my point — Judge Boasberg’s opinion provides a preview of coming repulsions. The rationale of the Mueller investigation is the removal of Trump from office. Whatever collusion there was with the friends of Vladimir Putin among the presidential campaigns, Democrats were doing the colluding. Mueller has moved his chips to obstruction of justice and now guards the evidence from Trump. If one reads between the lines here, one can see quite clearly the train that is hurtling down the tracks toward the president.