A federal judge ordered the FBI on Thursday to turn over documents related to former FBI Director James Comey’s memos. The memos are notes that Comey took during his infamous one-on-one meetings with President Trump. The DOJ had long argued that releasing the Comey Memos in their entirety would interfere with the Special Counsel investigation, and the court had been inclined to agree. The memos include the notes that Comey said he leaked to the media to spark the appointment of a special counsel. Redacted versions of the memos were released to Congress and the public.
CNN has been fighting for access to the Justice Department’s sealed arguments explaining to the court exactly why the DOJ opposed the full release of the Comey Memos. Judge James E. Boasberg of the U.S. District Court for the District of Columbia ruled in favor of CNN, USA Today, Judicial Watch, and the Daily Caller, telling the DOJ that it “shall submit to the Court… clean and redacted copies of the documents in dispute” for review by the judge.
David Archey is a central figure in this court battle over the Comey memos. He was the deputy assistant director with the Counterintelligence Division who supervised FBI agents assigned to the investigation into 2016 election interference by Russia. And he explained DOJ’s position on the memos to the court. Archey’s initial declaration explained to the court why the special counsel had compiled the Comey memos. The court then “thought it helpful to seek more specifics as to the Memos’ connection with an ongoing investigation” and “asked that an attorney from the Office of Special Counsel proffer such information.”
Michael Dreeben, who had been a counsel for the Special Counsel’s Office, provided the court with that “proffer” information. Archey’s answers to the court’s follow-up questions became known as the “Third Archey Declaration.”
After looking at all of this information from the DOJ, the court previously ruled on the Comey Memos: “The Court is now fully convinced that disclosure ‘could reasonably be expected to interfere’ with that ongoing investigation.” Those arguments from the DOJ about why and how Special Counsel Mueller may have used the Comey Memos are currently sealed.
Earlier in March of this year, the DOJ still argued that disclosing further information related to the Comey Memos could impede the Mueller probe, saying it “would reveal information about the focus and scope of the Special Counsel Office’s investigation that have not been officially publicly disclosed, and which if disclosed now could reasonably be expected to cause… potential harms.”
While the Special Counsel investigation was ongoing, the court agreed with the DOJ’s arguments about keeping this information secret. Mueller has now concluded his investigation, however, turning over his final report to Attorney General Bill Barr on Friday.
Yet the Archey Declarations — as well as the Special Counsel’s proffer to the judge — are still sealed.
In March, CNN had requested that the court “unseal in full the First Archey Declaration, Third Archey Declaration, and a transcript of and any other records relating to the proffer proceeding” and that the court “place copies of those fully unsealed records on the public docket in this matter.” On Thursday, the court ruled that the DOJ should hand that information over to the court for review and possible release.
Media and watchdog groups have fought to obtain documents relating to Comey’s notes through the Freedom of Information Act since May 2017, when the existence of the Comey memos was first made public. The memos recount conversations between Comey and Trump that are hotly disputed, and the outlets argue that the public has a right to their contents.
Trump fired Comey on May 9, 2017. One of the memos leaked by Comey was detailed in the New York Times on May 16, 2017, and Comey later explained to Congress that he leaked it to a friend to help prompt the special counsel investigation. The day after that New York Times report, Special Counsel Robert Mueller was appointed to investigate possible coordination between the Trump campaign and the Russian government during the 2016 election.
Earlier this month, CNN told the court that they had “shown that the FBI’s justifications for redacting the Comey Memos are illogical and implausible.” They are arguing for access to the unredacted Comey Memos in addition to wanting the Archey Declarations and the proffer from the Special Counsel.
CNN’s attorneys argue that the redacted information in the Comey Memos won’t hurt U.S. national security if it is revealed to the public. The redactions likely include: which foreign leader was the first to congratulate Trump on his inauguration, who in the White House received a defensive briefing in February 2017, information on the investigation of Mike Flynn including whether he was being surveilled under FISA, details related to the so-called Trump Dossier, information on Trump’s comments about Vladimir Putin, and more.
The DOJ’s documents related to the Comey Memos must now be turned over to the court by April 1st.
Editor’s note: This article has been corrected to reflect that the federal judge’s ruling is about Justice Department documents related to former FBI Director James Comey’s memos, and not just the Comey memos themselves. The Washington Examiner regrets the error.
