Andrew McCarthy of National Review Online scrutinizes former FBI Director James Comey’s actions regarding memos memorializing meetings with President Trump.
The memos were written by an FBI official, apparently on FBI equipment, and related directly to FBI investigative business. Indeed, the fact that investigative business was central to Trump’s conversations with the former director is what induced Comey to write the memos: He perceived the president’s statements as political intrusion into law-enforcement investigations and intelligence probes. The memos were thus government property, and the then-director was obliged to make sure they were retained in government files.
That does not mean it would have been improper for Comey to keep a copy of them for himself. But doing that would not change the character of the memos as government property, and it would not relieve Comey of the obligation to comply with all government disclosure restrictions on the contents of the memos. At the Federalist, Bre Payton reproduces a copy of the standard FBI employment agreement, making a persuasive argument that Comey’s memos are government property and that the former director’s disclosure of information in them to unauthorized persons violated the employment agreement’s terms.
Nor would the memos’ status as government documents turn on whether or not the documents were physically placed in the government’s files. Nor would their storage outside the government’s filing system relieve the government of any disclosure obligations in a criminal case; a court would simply rule that the government constructively possessed the documents through Comey, who was its agent when he made and retained them. The government would be responsible for securing them and complying with its disclosure obligations.
