Judge James E. Boasberg ruled Friday against making public former FBI Director James Comey’s seven memos describing his conversations with President Donald Trump. And by doing so, the jurist protected — at least for now — a key potential witness in special counsel Robert Mueller’s investigation of allegations of collusion between the president’s 2016 campaign and agents of the Russian government.
Boasberg is a member of the Foreign Intelligence Surveillance Court (FISC) — the judicial body created by the Foreign Intelligence Surveillance Act (FISA) in 1978 and substantially updated in the wake of the 9/11 terrorist attacks.
A Yale and Oxford graduate, Boasberg is hardly known to the American public despite his having recently decided cases of immense political significance. His father worked in the Office of Economic Opportunity, the central agency in President Lyndon B. Johnson’s “Great Society” deluge of federal programs.
Comey wrote the memos because, he told the Senate Intelligence Committee last year, he feared Trump “might lie about the nature of our meeting, so I thought it important to document.” Four of the memos contain classified information; three of them do not.
Trump fired Comey May 9, 2017, a fact that could be significant if Mueller brings obstruction of justice charges against the chief executive. Comey’s memos could provide insight into Trump’s intent in removing the FBI chief.
Boasberg ruled against an ideologically diverse coalition of journalists and transparency advocacy groups who had filed Freedom of Information Act (FOIA) requests for copies of the Comey memos.
Boasberg agreed with Department of Justice (DOJ) attorneys who argued that releasing the memos would compromise an ongoing criminal law enforcement investigation — namely, the Mueller probe. Exemption 7 of the FOIA permits documents to be withheld under such circumstances.
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There is no doubt Mueller is using the Comey memos in some fashion because, as Boasberg observed in his opinion, “the special counsel has ‘gathered’ or ‘used’ each of the Comey memos for his investigation.”
But the memos won’t remain hidden from public examination forever. At some point in the future, the Mueller operation and related litigation it may initiate will end. If anybody at that point still cares, it will be difficult for federal officials to keep the documents under wraps.
Boasberg was appointed to the FISA panel by Supreme Court Chief Justice John Roberts, but it was in his capacity as a U.S. District Court for the District of Columbia, which hears FOIA cases.President Barack Obama appointed Boasberg to the District Court in 2011.
The Comey memo decision isn’t Boasberg’s first handling of a controversial public disclosure case. He ruled against Judicial Watch, which is also among the plaintiffs in the Comey case, and kept photographs of the slain Osama bin Laden out of public view.
In another case involving Judicial Watch, Boasberg ruled in the nonprofit’s favor, ordering the Department of State to release more than 14,000 emails from former Secretary of State Hillary Clinton’s private email server.
And in a fourth recent case that drew intense public interest, Boasberg ruled against another nonprofit transparency advocate in the Electronic Privacy Information Center’s request that Trump’s federal tax returns since 2010 be made public.
There is a fifth case of major significance that may involve Boasberg. When the DOJ and FBI asked the FISC to approve a warrant enabling comprehensive surveillance of Carter Page, a volunteer Trump adviser, in 2016, a FISC judge approved the request.
Three subsequent government requests to continue the Page surveillance were also approved. Was Boasberg the judge in any of those four decisions? Applications and decisions of the FISC court are by definition classified and thus exempt from disclosure, so the answer to that question will probably never be known.
As if there weren’t enough twists and turns in the Comey memo saga in which Boasberg figures so prominently, Senate Judiciary Committee Chairman Charles Grassley has reviewed the documents.
In a Jan. 3, 2018, letter to Deputy Attorney General Rod Rosenstein, the Iowa Republican is demanding answers from DOJ and the FBI about Comey’s sharing at least some of the memos with a friend, Columbia University Law School Professor Daniel Richman.
Among Grassley’s questions are these three, the answers to which could determine the legal fates of multiple figures in the Russia scandal, including most especially Comey:
Have you initiated an investigation into the matter of whether Mr. Comey improperly disclosed classified information by providing these memoranda to Professor Richman? If so, what is the status of the investigation? If not, why not?
Has there been any review of whether the disclosure of the memoranda by Mr. Comey was otherwise improper, such as whether it violated his employment agreement or any department rule or policy? If so, what is the status of the review? If not, why not?
When did the FBI mark the four memoranda as classified, and who made the classification decision?
As with so many other congressional requests for documents sandbagged by DOJ and the FBI, Grassley has not commented publicly about responses to his letter.
But he has read the Comey memos, which may make Grassley a guy who could shape the ultimate outcome of the Russia scandal.