The outside lawyer for President Donald Trump will file a complaint against former FBI Director James Comey next week for passing a memo to the press, according to a person close to the legal team.
“A complaint will be filed early next week with the Department of Justice Inspector General regarding the leak, and there will also be a submission to Senate Judiciary regarding Mr. Comey’s testimony before both the Senate Judiciary Committee and the Senate Intelligence Committee,” the person told ThinkProgress.
In remarkable written and oral testimony before the Senate Intelligence Committee on Thursday, Comey detailed a series of memos he wrote to memorialize conversations with Trump he felt were inappropriate.
Asked by Sen. Susan Collins (R-ME) whether he shared those memos with anyone outside the Department of Justice, Comey admitted to passing one memo regarding a Feb. 14 meeting in which Trump allegedly asked him to stop an FBI investigation into former National Security Adviser Michael Flynn.
“I asked a friend of mine to share the content of the memo with a reporter. Didn’t do it myself for a variety of reasons,” Comey testified. “I asked him to because I thought that might prompt the appointment of a special counsel. I asked a close friend to do it.”
Comey decided to pass the memo to the press, he told senators yesterday, after Trump implied in a tweet on May 12 that he secretly recorded conversations with Comey in the Oval Office.
James Comey better hope that there are no "tapes" of our conversations before he starts leaking to the press!
— Donald J. Trump (@realDonaldTrump) May 12, 2017
“I woke up in the middle of the night on Monday night because it didn’t dawn on me originally, that there might be corroboration for our conversation. There might a tape,” Comey testified. “My judgment was, I need to get that out into the public square.”
Four days later, on May 16, The New York Times published a bombshell story alleging that Trump pulled Comey aside after a Feb. 14 meeting in the Oval Office to ask that Trump drop the FBI’s investigation into Flynn. The story cited “one of Comey’s associates” who read parts of a memo about the Feb. 14 meeting to The Times.
That associate was reportedly Columbia Law School professor Daniel Richman, who declined to comment for this story.
Trump first disclosed details about his private conversations with Comey in the letter he sent to him announcing his firing.
As Trump's lawyer prepares to file complaint, recall the president was first to reveal information from his private conversations with Comey pic.twitter.com/9AgrP7fXmC
— Bradd Jaffy (@BraddJaffy) June 9, 2017
Comey wrote several memos detailing conversations with Trump, according to his testimony. While some of those memos contain classified information and were written on classified devices, Comey testified, he intentionally wrote the Feb. 14 memo he later passed to the press so it wouldn’t trigger a classification.
“Well, I remember thinking, this is a very disturbing development, really important to our work,” he said in response to a question from Sen. Ron Wyden (D-OR). “I need to document it and preserve it in a way, and this committee gets this but sometimes when things are classified, it tangled them up.”
Trump has retained Marc Kasowitz of the New York law firm Kasowitz Benson Torres to represent him in the ongoing probe into Russian interference in the U.S. election and possible coordination between Russian officials and the Trump campaign.
In a statement yesterday, the Trump legal team claimed Comey’s testimony was false because The Times story quoted from Comey memos a day before Trumps’ “tapes” tweet, but the public record does not bear that claim out, as Times White House correspondent Julie Davis quickly pointed out:
Kasowitz is mistaken re NYT stories on Comey memos. We never quoted memos prior to Trump's 5/12 tweet re tapes; 1st story doing so was 5/16
— Julie Davis (@juliehdavis) June 8, 2017
On May 11, the day before Trump’s tweet, The Times did report on a private dinner during which Trump allegedly asked Comey for a pledge of loyalty.
Comey confirmed that report in his Senate testimony yesterday and said he also documented it in a memo. However, the May 11 Times story makes no mention of Comey’s memos. Instead, it cited “two people who have heard [Comey’s] account of the dinner.”
A person close to the Trump legal team declined to comment on whether the forthcoming complaint will claim Comey released classified information or will focus on some other ethical or legal theory. But experts say it could be a difficult case to make.
It could be possible to make a case that Comey violated the FBI’s strict pre-publication review requirements or converted government property, according to Stewart Baker, a partner at D.C. firm Steptoe and Johnson who served as general counsel at the National Security Agency from 1992 to 1994, along with several other government posts. But a conversion charge would be unusual and difficult to prove, Baker said.
“I am not aware of a strong legal theory,” he told ThinkProgress in an interviews. “It would be breaking new ground. It would require creativity in bringing charges. That doesn’t mean someone won’t take a close look at that.”
Short of releasing classified information, experts say, it’s difficult to make a case that Comey broke the law. The ethical case is much stronger, according to Baker, and the Department of Justice could still reprimand Comey. But its options are limited for an official who’s already lost his job.
“It is not something that a good government official should do. I would have expected some admission of that by Comey, and I think his judgment about that is inevitably affected by the fact that he’s already been fired,” Baker explained.
Mark Zaid, a D.C.-area lawyer who represents clients in cases related to security clearance and other national security issues, agreed with Baker’s analysis.
“It’s obviously not a policy or condoned that former officials keep copies of their internal documentation and then disseminate it without permission,” Zaid told ThinkProgress, “but there’s nothing illegal about it.”
Several lawyers also weighed in online, with Richard Painter, who served as George W. Bush’s White House ethics lawyer from 2005 to 2007, going as far as to call the complaint by Trump’s legal team “more obstruction of justice.”
Trump defense attorney's leak complaint against Comey is complete nonsense. Should be handled by Mueller's team not by DOJ lawyers.
— Richard W. Painter (@RWPUSA) June 9, 2017
Trying to get DOJ to go after Comey –a material witness– over "leak" is yet more obstruction of Justice.
— Richard W. Painter (@RWPUSA) June 9, 2017
Painter has been a consistent critic of the Trump administration on ethics issues.
Update (1:00pm): Painter elaborated on his tweets in an interview with ThinkProgress after this story published, explaining that he does not believe Comey violated any laws or Department of Justice ethics policies.
“I don’t see any evidence Comey did anything wrong. He was no longer a government employee,” Painter said. “He clearly didn’t commit a crime. There was no classification here.”
On the other hand, Painter believes Trump and his lawyer could be skirting close to obstruction of justice, or at least abusing their authority, if they ask the Department of Justice Inspector General to open an investigation without clear merits.
“I think it’s obstruction of justice, it’s witness intimidation,” Painter said. “He’s trying to intimidate Comey. He’s using his power as president to intimidate a witness.”
Painter’s criticism was specific to the complaint Trump’s legal team plans to file with the Department of Justice Inspector General, which ultimately reports to the president, rather than the complaint to the Senate Judiciary Committee.
“I think that’s an abuse of authority,” he said, “because the DOJ Inspector General reports to the president.”
Update (4:25pm): On Friday afternoon, Trump’s outside lawyer, Marc Kasowitz, responded to media reports that his Thursday statement concerning the timing of The New York Times’ story was inaccurate.
“Mr. Comey’s written statement, which he testified he prepared from his written memo, describes the details of the January dinner in virtually verbatim language as the New York Times May 11, 2017 story describing the same dinner,” the statement reads. “That story was the day before President Trump’s tweet.
It is obvious that whomever was the source for the May 11, 2017 New York Times story got that information from the memos or from someone reading or who had read the memos.”
As noted above, the May 11, 2017 New York Times story on a dinner during which Trump reportedly asked Comey for a pledge of loyalty cited two Comey associates and makes no mention of memos.
“Mr. Comey described details of his refusal to pledge his loyalty to Mr. Trump to several people close to him on the condition that they not discuss it publicly while he was F.B.I. director,” the story says. “But now that Mr. Comey has been fired, they felt free to discuss it on the condition of anonymity.”
Despite claims from Trump’s legal team, there remains no hard evidence that Comey’s account of the timing of his decision to pass one of his memos to the press is inaccurate.