Prosecutors Secured Evidence Comey Authorized Classified Leaks, but Declined Charges

by John Solomon and Jerry Dunleavy

 

Federal prosecutors gathered evidence from James Comey’s top lieutenants that he authorized the leak of classified information to reporters just before the 2016 election but declined to bring criminal charges, according to recently declassified memos that call into question the former FBI director’s testimony to Congress.

The bombshell revelations involving ex-FBI general counsel James Baker and ex-Comey chief of staff James Rybicki were memorialized in documents that FBI Director Kash Patel discovered earlier this year, but the passages were originally redacted by the Justice Department in versions sent to Congress earlier this month.

Attorney General Pam Bondi intervened and eliminated the redactions, dispatching new versions of the memos this week to the House and Senate Judiciary committees, officials told Just the News.

The memos detail evidence and interviews gathered by U.S. Postal Inspection Service agents concerning classified information leaked to The New York Times in October 2016, ahead of the November election in which Republican Donald Trump defeated Democrat Hillary Clinton.

“The USPIS Investigation also revealed Baker disclosed USG [U.S. government] classified information to the NYT under the belief he was ultimately instructed and authorized to do so by then FBI Director James Comey,” one summary memo reads. “For example, during interviews, Baker indicated FBI Chief of Staff James Rybicki instructed him (Baker) to disclose the information to the NYT, and Baker understood Rybicki was conveying this instruction and authorization from Comey.”

The memos don’t identify the specific pieces of classified information that were leaked or whether Comey or anyone else was authorized to declassify them for the media.  But they were investigated by multiple prosecutors, including the U.S. attorney’s office in Washington, D.C., under Trump’s first administration and by future-special prosecutor John Durham, and all declined to bring criminal charges, the memos show.

Bondi told Just the News on Thursday she was committed to bringing accountability for the yet unpunished leaks.

“This document produced at my direction confirms what many Americans have long suspected: former FBI Director James Comey and his chief of staff engaged in abhorrent conduct,” she said. “There must be accountability for those who were entrusted with safeguarding our nation’s secrets and failed to do so.”

Comey previously denied during congressional testimony that he had ever been a source in news articles related to the FBI’s investigations into Trump and Clinton and further denied that he had ever approved of anyone else at the FBI being such a source. He has long denied any wrongdoing and insisted he has been politically attacked because he stood up to Trump.

Patel told Just the News the evidence he uncovered raised concerns that one of his predecessors may have authorized illegal leaks and lied about it.

“These newly declassified memos show how former FBI leadership authorized classified leaks and withheld the truth from Congress and the American people,” he said. “Thanks to President Trump’s commitment to transparency, the cover-up is being exposed. The public deserves nothing less than full accountability.”

 A recent barrage of declassified documents showing Comey and current Sen. Adam Schiff, D-Calif., may have been behind national security leaks over the last decade designed to harm Trump may prove more than just an exercise in historical accountability.

Legal experts say the statute of limitations for prosecution under espionage laws for leaks back in 2016 or 2017 can be extended to 10 years if the act was knowing and willful and harmed national security or was part of an ongoing criminal conspiracy that continued into the last five years.

“The general federal statute of limitations is five years, but espionage that harms our national interest is 10 years and covering up the crime continues the conspiracy,” explained Mike Davis, a former top Senate Judiciary Committee lawyer who now runs the nonprofit Article III Project on constitutional law.

“The Trump DOJ can open up a criminal probe that investigates this malicious disclosure of classified information that harms our national interest,” he said.

Patel recently opened a criminal investigation examining the last decade of U.S. intelligence abuses and political weaponization as an ongoing criminal conspiracy stretching from the now-disgraced Russia conclusion probe to the raid on Trump’s home in Mar-a-Lago, Fla.

Bondi has created a strike force to examine the allegations and authorized the use of grand juries, while one of her top deputies, Harmeet Dhillon, told Just the News one of the crimes that could be charged is the deprivation of civil liberties under color of government authority.

There is also a question of whether Congress was obstructed by false statements and withheld documents.

Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, asked Comey in May 2017 whether he had “ever been an anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation.”

Comey replied, “Never.”

Grassley then asked whether Comey had “ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation.” Comey again testified, “No.”

When asked whether any classified information “relating to President Trump or his associates” had ever been declassified and shared with journalists, Comey said, “Not to my knowledge.”

“There have been a variety of leaks,” Comey also said at the time. “Leaks are always a problem, but especially in the past three to six months.”

He did not immediately respond to a request for comment sent to him by Just the News through his personal book website.

Rybicki did not immediately respond to a request for comment sent to him by Just the News through his LinkedIn. Baker declined through his lawyer to comment.

The FBI memos show the Justice Department’s “Tropic Vortex” classified leaks investigation initially focused on an unspecified October 2016 article by the New York Times as well as an early March 2017 article by the Times written by reporters Michael Schmidt and Michael Shear and titled, “Comey Asks Justice Dept. to Reject Trump’s Wiretapping Claims.”

It is likely that the “October 2016 NYT Article” in question was a piece published on Halloween that year written by journalists Eric Lichtblau and Steven Lee Myers and titled, “Investigating Donald Trump, FBI Sees No Clear Link to Russia.”

The FBI memos said that in late March 2017, then-acting Deputy Attorney General Dana Boente directed then-Connecticut U.S. Attorney John Durham to lead an investigation based on a criminal referral from a redacted source “regarding an unauthorized public disclosure of USG classified information.”

The memo said that such investigations are typically conducted by the FBI’s Counterintelligence Division with oversight from DOJ’s National Security Division, but that “at least one of the subjects of the investigation is a former senior FBI official who previously worked in NSD,” and so, “to avoid a potential conflict of interest or an appearance thereof,” Boente assigned the investigation to Durham and the USPIS instead of NSD and the FBI.

The newly-declassified FBI document lifted a redaction that showed that one of the previously-concealed criminal subjects was “FBI general counsel James Baker.”

The FBI memo said that the “October 2016 NYT Article indicated there were two USG sources for the article.” The newly-lifted redactions show that the USPIS Investigation “revealed Baker to be one of the two sources” and “also revealed Baker disclosed USG classified information to the NYT under the belief he was ultimately instructed and authorized to do so by then FBI Director James Comey.”

The newly-unredacted portion added that “Baker indicated FBI chief of staff James Rybicki instructed him (Baker) to disclose the information to the NYT, and Baker understood Rybicki was conveying this instruction and authorization from Comey.”

The FBI memo said that by late December 2017, Durham and USPIS “completed their investigation and provided a memorandum with their conclusions and recommendations to Attorney General Jeff Sessions.”

An FBI memo for a further media leak investigation is dated mid-January 2019 and indicates that the FBI’s Counterintelligence Division “received a draft memorandum” from the U.S. Attorney’s Office in the nation’s capital regarding the aforementioned Durham-led investigation.

The federal prosecutor “indicated the investigation may contain information relevant to other FBI investigations of unauthorized public disclosures, including, but not limited to” leak inquiries dubbed Echos Fate, Foggy Falls, Genetic Christmas and Sirens Lure.

In response, an official, whose name is redacted, directed the FBI’s Washington field office “to open a full investigation for the purposes of reviewing the investigation and/or incorporating any information relevant to these other investigations.”

The FBI field office issued a memo in late February 2020 indicating that the investigation had ended with the U.S. attorney’s office in the nation’s capital declining to prosecute, but with the memo providing further details about the failed investigation.

The memo said the Durham-led part of the inquiry had been based on a “criminal referral” that had focused on the October 2016 article in the Times. Durham and USPIS “completed their investigation” in mid-December 2018, and the “Durham Memo” sent to then-acting Attorney General Matthew Whitaker “recommended NO prosecution of Baker or anyone else,” the newly-declassified portion of the FBI record revealed.

The FBI’s Washington field office then picked up the investigation the next year.

“On April 8, 2019, WFO [Washington field office] completed a review of the USPIS Investigation and USA Durham Memo, noted significant findings therefrom… and provided them to the attorneys, agents, and professional staff assigned to TROPIC VORTEX, ECHOS FATE, FOGGY FALLS, GENETIC CHRISTMAS, and SIRENS LURE,” the FBI memo said, with a newly-unredacted portion stating that the FBI field office “did not identify any additional investigative leads regarding Baker or the second [Redacted] source for the October 2016 NYT Article.”

The FBI field office “did identify one additional investigative lead” during their inquiry.

The memo cited an early-March 2017 tweet from Trump in which he said: “Terrible! Just found out that Obama had my ‘wires tapped’ in Trump Tower just before the victory. Nothing found. This is McCarthyism!”

The memo noted that, the next day, the Times published its aforementioned article on Comey asking DOJ to reject Trump’s allegation.

“The March 2017 NYT Article reported a USG official indicated Comey asked the DOJ to publicly reject the assertions in President Trump’s tweets, but the DOJ had not released any such statement. The tweets and article occurred shortly after the initiation of the USPIS Investigation,” the FBI memo said.

“During interviews for the USPIS Investigation, multiple DOJ and FBI officials were asked about their discussions, actions and responses to the tweets and article. Although the officials provided opinions on the identity of the USG official in the article, the USPIS Investigation did not determine who it was,” the memo stated.

The FBI’s Washington field office “compiled findings from the USPIS Investigation regarding the tweets and the March 2017 NYT Article, and from additional investigation by WFO” in late October 2019. A newly-declassified portion of the memo said that “the findings revealed Rybicki forwarded an email containing a proposed statement to the news media regarding the tweets to his (Rybicki’s) presumed personal email account.”

The newly-declassified part of the memo said that “the proposed statement originated from Comey and appeared to be at the UNCLASSIFIED level of classification” in the March 2017 article and that the FBI field office “assessed Rybicki did so in furtherance of a potentially unauthorized disclosure to the news media, which appeared to be at the implicit direction of Comey.”

The newly-unredacted part of the FBI memo stated that “based on the findings and assessment,” the U.S. attorney’s office in the nation’s capital “issued a preservation letter for Rybicki’s personal email account in furtherance of potential legal process” but that  federal prosecutors “subsequently declined to pursue additional legal process as the proposed statement appeared to be UNCLASSIFIED.”

The now-unredacted part of the FBI memo said the FBI field office “also prepared materials regarding the proposed statement for use in a November 2019 interview with Rybicki” conducted by the federal prosecutors and the bureau investigators in the nation’s capital, but the U.S. Attorney’s Office “declined to use them” and so the FBI field office “considers this additional investigative lead complete.”

The FBI memos stated that in late January 2020 the U.S. Attorney’s Office in D.C. “issued a prosecutorial declination decision for TROPIC VORTEX.”

The FBI launched more than half a dozen wide-ranging investigations into leaks to the media as numerous legacy outlets deployed the classified information to push false claims of Trump-Russia collusion. But the bureau failed to hold anyone accountable for the classified leaking, a Just the News investigation showed earlier this month.

The newly-declassified FBI memos detailed a host of failed or botched classified leaks inquiries, with revelations from at least seven leak inquiries contained within the bombshell documents first obtained and now released by Just the News.

The FBI concluded that numerous news stories which contributed to the false Russiagate narrative contained illegally leaked classified intelligence, but bureau investigators repeatedly failed – perhaps willingly – to definitively identify the leakers.

Despite these failures, Just the News revealed earlier this month that FBI agents did force a stunning admission that Comey used a special conduit to a Pulitzer Prize-winning New York Times writer in his bid to polish his image and push for a special prosecutor to take down Trump.

Columbia University law professor Daniel Richman admitted to agents that he routinely communicated on behalf of Comey, his longtime friend, with Times reporter Schmidt, whose work was among the newspaper’s Pulitzer-winning stories on the Russiagate saga. The goal, Richman told the FBI, was “to correct stories critical” of Comey and the FBI and to “shape future press coverage.”

Richman insisted he did not believe he had confirmed or provided classified intelligence to reporters but said he could not be 100% certain, the memos state, noting he could only make his leak denial “with a discount.”

The revelations about Comey and Richman were revealed as part of an FBI classified-leak investigation dubbed Arctic Haze, according to the declassified memos obtained by Just the News earlier this month. The inquiry also did not result in any prosecutions, although significant details about the investigation remain redacted.

DOJ inspector general Michael Horowitz wrote a report released in August 2019 criticizing Comey’s decision to leak his so-called “Comey Memos” – including details about Trump’s alleged comments about Lt. Gen. Mike Flynn – to the media in 2017 in an effort by the then-fired FBI director to spur the appointment of a special counsel.

Horowitz wrote that his investigation “interviewed 17 witnesses, including former Director Comey and Daniel Richman, the individual who, at Comey’s request, shared the contents of one of the Memos with a reporter [Schmidt] for The New York Times.” Comey told Horowitz that the day after being fired by Trump, he retained Richman as an attorney.

“We have previously faulted Comey for acting unilaterally and inconsistent with Department policy,” the DOJ watchdog wrote. “Comey’s unauthorized disclosure of sensitive law enforcement information about the Flynn investigation merits similar criticism.”

Comey admitted in 2017 that he had hoped leaking this information “might prompt the appointment of a special counsel.” Horowitz concluded Comey’s leaks were “an attempt to force the Department to take official investigative actions.” Horowitz sent a criminal referral to the DOJ over Comey’s memos at the time, but the DOJ declined to prosecute.

Rybicki, as Comey’s chief of staff, and Baker, as the FBI’s top lawyer, both played key roles in the FBI’s investigations into Clinton’s mishandling of classified information and into baseless claims of Trump-Russia collusion.

Horowitz’s August 2019 report on Comey’s mishandling of his memos explained how the January 2017 Trump Tower meeting with then-President-elect Trump wasn’t just about briefing Trump on the ICA. Horowitz also laid out details showing Comey’s one-on-one meeting with Trump after everyone else left wasn’t just about informing Trump of allegations from Steele’s dossier, but was treated by Comey and the FBI as a chance to gather information in the Crossfire Hurricane investigation.

Horowitz wrote that the FBI was focused on “Trump’s potential responses to being told about the ‘salacious’ information, including that Trump might make statements about, or provide information of value to, the pending Russian interference investigation.”

Comey wrote about the tower meeting immediately after, telling Horowitz it should be treated like counterintelligence information, and Comey had his team on standby to be told what he’d learned.

Beforehand, Comey had met with disgraced FBI Deputy Director Andrew McCabe, Baker, Rybicki, and leaders of the Crossfire Hurricane team. Some worried Comey’s meeting could be seen as a “Hoover-esque type of plot.”

Comey had a secure FBI laptop waiting in his FBI vehicle after the tower meeting and “began typing [Memo 1] as the vehicle moved” and worked on it until he got to the FBI’s New York field office, where McCabe, Baker, Rybicki, and the team were waiting on a video teleconference. Comey also sent the memo through the FBI’s classified email to McCabe, Baker, and Rybicki the next day.

Comey classified the memo as secret because the information “ought to be treated … [like] FISA derived information or information in a [counterintelligence] investigation.” McCabe forwarded the memo to former FBI lawyer Lisa Page, who was having an affair with fired FBI special agent Peter Strzok. Page said Comey sent it “to upload into the case file” because it was “central to investigative activity.”

Horowitz previously revealed in 2018 that there were “numerous instances in which Comey used a personal email account (a Gmail account) to conduct FBI business.” When asked if this practice was in line with DOJ regulations, Comey told investigators, “I don’t know. I think so, but I don’t know. I remember talking to Jim [Rybicki] about it at one time, and I had the sense that it was okay.” Rybicki sent an email to the DOJ watchdog defending Comey’s personal email practices.

Then-special counsel John Durham’s 2021 indictment against Democratic cybersecurity lawyer Michael Sussmann centered on a September 2016 meeting with Baker in which Sussmann passed along debunked allegations claiming there was a secret back channel between Russia’s Alfa Bank and the Trump Organization. Durham alleged that Sussmann told the FBI general counsel that he was not working for any specific client, but Durham said Sussmann was secretly doing the bidding of Clinton’s presidential campaign.

Sussmann was acquitted after a two-week trial by a jury in the nation’s capital in 2022.

Declassified FBI records also show that since-convited FBI lawyer Kevin Clinesmith messaged FBI lawyer Lisa Page that “we have the final draft of the DRAGON FISA” on October 11, 2016 – using the “Crossfire Dragon” codename for Carter Page.

Clinesmith and Page then strategized about how to get the FISA approved as quickly as possible.

Page said that “I can call Rybicki, ask him to check in with the D [the Director].”

Clinesmith replied, “If you think that’s acceptable, it might be a good thing to do; that would help us get it to the FISC [Foreign Intelligence Surveillance Court] more quickly.”

Declassified memos from since-fired FBI Deputy Director Andrew McCabe say Baker played a role in McCabe’s decision to announce an FBI investigation into Trump after the president fired Comey in 2017.

When Comey was fired, “McCabe became convinced he had to set the investigations on a course to move forward if he himself was fired,” the notes state. The FBI said that “McCabe and others met several times after the termination to discuss whether there was predication to open an obstruction investigation on Trump … . McCabe first wanted the team to look at the four or more open Russia investigations at the time and to decide if there were others that should be opened.

McCabe told Robert Mueller’s special counsel team that he and others talked about “the fact that, by investigating the Trump campaign, they were, by definition, ‘sort of’ investigating Trump. As such, they wondered whether it would be accurate to tell Trump he was not under investigation.”

“The termination [of Comey] caused them to focus on whether to take the next step and open a case on Trump himself and whether it was necessary, given the existing investigation into the campaign,” the FBI notes state. “McCabe’s intention was to make sure cases that needed to be opened were opened and in doing so ensure the investigations had a ‘clear, un-erasable footprint’ in case he was fired the next day.”

The FBI notes state that McCabe “had discussions” with Baker “regarding whether there was sufficient predication to open an investigation into Trump’s possible collusion with Russia and for obstruction of justice for terminating Comey. After their discussions, they decided to open an obstruction investigation.”

Baker has previously defended the flawed Trump-Russia investigation, including the FBI’s handling of British ex-spy Christopher Steele’s discredited dossier. He was involved in the signoff process of at least the first Foreign Intelligence Surveillance Act warrant application that targeted former Trump campaign adviser Carter Page.

Baker left the FBI in 2018 and went on to work with Lawfare, a national security blog affiliated with the Brookings Institution, whose editor-in-chief is Comey friend Benjamin Wittes. Baker then went on to hold a high-level position at Twitter.

The New York Post reported in October 2020 that emails from the laptop showed evidence of shady business dealings by the son of President Joe Biden tied to Ukraine and China. When the publication attempted to post the articles on its Twitter account, the social media company said doing so violated its rule against sharing “hacked” materials.

Baker, the now-former Twitter deputy general counsel, defended his and Twitter’s actions related to the Hunter Biden laptop censorship saga.

“I was not aware of and certainly did not engage in any conspiracy or other effort to do anything unethical, improper, or unlawful while I was at Twitter. Period,” Baker told the House in 2023.

“I did not act unlawfully or otherwise inappropriately in any manner with respect to Hunter Biden’s laptop computer. … I am aware of no unlawful collusion with, or direction from, any government agency or political campaign on how Twitter should have handled the Hunter Biden laptop situation.”

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John Solomon is an award-winning investigative journalist, author and digital media entrepreneur who serves as Chief Executive Officer and Editor in Chief of Just the News. Jerry Dunleavy is a reporter for Just the News. 

 

 

 

 

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