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Comey followed careful plan in leaking memos

The Hill logo The Hill 11/06/2017 Katie Bo Williams

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James Comey's release of his memos to The New York Times was a carefully orchestrated act that appeared designed to shield him from any legal repercussions, whistleblower and ethics lawyers say.

While President Trump's personal lawyer, Marc Kasowitz, is reportedly preparing a leak complaint against Comey, experts say the fight over Comey's disclosures is more political than legal.

"It's clear that Comey understood the legal principles [protecting disclosures]," said Stephen Kohn, a lawyer who specialises in whistleblower cases.

But, he said, "Trump's lawyer was also smart because he's filing these complaints in places that don't mean anything. It's public relations."

The memos, which Comey wrote to contemporaneously document his encounters with the president, have become a flashpoint in the administration's response to the former FBI director's scathing testimony before a Senate panel Thursday.

Comey friend with memo in contact with Senate panel: reports © Provided by The Hill Comey friend with memo in contact with Senate panel: reports

In one of the most dramatic moments in Comey's remarks, he revealed that he had provided one of his memos to The New York Times through a trusted friend to prompt the appointment of a special counsel in the bureau's Russia investigation.

Trump on Friday morning branded Comey a "leaker" in a tweet and reports emerged that Kasowitz is planning to file a complaint with the Justice Department Inspector General as well as the Senate.

But the way Comey went about his disclosure makes it very unlikely that he is subject to any legal or administrative penalty, legal experts say.

"So long as he ensured the FBI had its own copy of the memos, and so long as the memos were not classified, Mr. Comey's actions appear to be entirely lawful," said Brad Moss, a lawyer who specializes in national security and security clearance law.

Comey told lawmakers Thursday that he initially kept silent about the president's alleged request that he "let go" of the investigation into former national security advisor Michael Flynn because there was no way to confirm his side of the story.

He said he decided to act when the president raised the possibility of "tapes" of their conversations in a cryptic threat issued after his dismissal - because, Comey said, "there might be corroboration for our conversation."

"James Comey better hope that there are no 'tapes' of our conversations before he starts leaking to the press!" Trump tweeted in mid-May.

At that point, Comey provided the content of his memos documenting the encounter to The Times, through his longtime friend and advisor Daniel Richman, a professor at Columbia Law School.

The memos laid out details of an Oval Office meeting. During that meeting, according to Comey, Trump said, "I hope you can see your way clear to letting this go, to letting Flynn go."

"As a private citizen I thought it important to share that, I wanted to get it out," Comey said, stressing that his memos were unclassified and based on his personal recollection.

Allies of the president have argued that Comey violated executive privilege protecting his conversations with the president. Kasowitz said Thursday that Comey had "made unauthorised disclosures to the press of privileged communications with the president," suggesting that he broke the law.

But an assertion of executive privilege can only protect an unwilling witness from being compelled to testify - it can't be used to prohibit a willing witness from speaking, legal sources say.

On top of that, several whistleblower lawyers told The Hill, Comey waited to disclose the memo's contents until Trump had effectively nullified any privilege that may have existed.

The president effectively waived any claim to privilege when he went after Comey on Twitter and when he began discussing the conversations publicly himself, lawyers said.

"Even in the context of lawyer-client privilege, if a client attacks the lawyer publicly, the lawyer can self-defend," Kohn said. "So even assuming [executive privilege] was there, Comey had the right to self defense."

Comey also shielded himself from any administrative repercussions by making the disclosures orally, Kohn and others said.

Normally when former officials want to release information, they have to run it past the agency in question in what's known as prepublication review. But oral disclosures are not subject to that process - and Comey was explicit Thursday that he asked Richman to disclose "the content" of the memos, not the memos themselves.

"The New York Times has not viewed a copy of the memo, which is unclassified, but one of Mr. Comey's associates read parts of it to a Times reporter," the paper reported on May 16.

There are several criminal and civil statutes that can be triggered for unauthorised disclosures, lawyers say, but none of those appear to apply to Comey.

Federal law does prohibit the release of classified information or information related to national defense, for example - but there have so far been no claims that Comey's recollections of his conversations with the president fit into either of those categories.

In the past, the government has filed civil charges against former officials who have made disclosures that have monetary value - for example, writing and selling a memoir - but Comey's memos as reported have no pecuniary value.

Onlookers say it's apparent by Kasowitz's reported choice of venue that he is clear-eyed about the strength of his legal case. The Justice IG would have little jurisdiction over a terminated employee and the Senate doesn't have the authority to bring charges.

"That's exactly what it looks like to me," said Matt Whitaker, a former U.S. attorney and executive director of the ethics watchdog the Foundation for Accountability and Civic Trust, asked if the reported Kasowitz complaint was a public relations move.

Some ethics lawyers say that if he files such a complaint as a way to fire back at Comey - or potentially stifle future leakers - Kasowitz may open himself up to criminal liability.

"While I think we should be careful about characterising a complaint that hasn't yet been filed, false statements and abusive legal filings can give rise to criminal liability, including for obstruction or witness intimidation," said Norm Eisen, ethics czar under former President Barack Obama and an outspoken critic of the Trump administration.

While Comey may be in the clear legally, that does not mean that he acted "appropriately," critics say. Lawmakers are frustrated that the former director didn't bring his story to Congress, rather than the media.

Sen. Susan Collins (R-Maine), whose questions prompted Comey's revelation on Thursday, said that she was "concerned" that Comey had passed the contents of the document onto the media.

"If it is a government work product, it belongs to the FBI and not to him as a private citizen," she told MSNBC's Morning Joe on Friday. "I think a better way would have been to give it to our committee."

There is some dispute about whether the content of the memos should be considered property of the bureau or his personal recollections. Comey told lawmakers Thursday that "my view was that the content of those unclassified, memorialisation of those conversations was my recollection recorded."

He said he has since given the documents themselves to Special Counsel Bob Mueller, who was appointed to lead the Russia investigation two days after The Times made public the existence of the memos.

"I'm more concerned about the removal of what appears to be official documents and declaring that they're personal than the oral reporting through an intermediary when he's no longer in that capacity," Whitaker said.

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