This article has been updated.
CNN and Fox first reported that Trump’s outside counsel, Marc Kasowitz, plans to file complaints with the inspector general of the Justice Department and the Senate Judiciary Committee about Comey’s testimony. At issue was Comey’s revelation that he provided a memo documenting a conversation with Trump to a friend to be shared with the New York Times.
As the news broke, I was on the phone with Stephen Kohn, partner at a law firm focused on whistleblower protection. We’d been talking about where the boundaries lay for Comey in what he could and couldn’t do with the information about his conversations with the president. Kohn’s response to the story about Kasowitz, though, was visceral.
“Here is my position on that: Frivolous grandstanding,” he said. “First of all, I don’t believe the inspector general would have jurisdiction over Comey any more, because he’s no longer a federal employee.” The inspector general’s job is to investigate wrongdoing by employees of the Justice Department, which Comey is no longer, thanks to Trump — though the IG would have the ability to investigate an allegation of criminal misconduct.
“But, second,” he continued, “initiating an investigation because you don’t like somebody’s testimony could be considered obstruction. And in the whistleblower context, it’s both evidence of retaliation and, under some laws, could be an adverse retaliatory act itself.”
In other words, Comey, here, is an employee who is blowing the whistle, to use the idiom, on his former boss. That boss wants to punish him for doing so. That’s problematic — especially if there’s no evidence that Comey actually violated any law that would trigger punishment.
This is where my original line of inquiry to Kohn comes back into play.
Comey testified under oath that, following a conversation with Trump in the Oval Office, he wrote a memo documenting what was said. Last month, he provided that memo to a friend and asked that it be shared with the New York Times.
That, as described, is not illegal, Kohn said.
“Obviously you can report on a conversation with the president,” he said. “What the president does isn’t confidential or classified.” There is the principle of “executive privilege,” which protects the president’s deliberative process as he does his job. But that wouldn’t cover a conversation like the one between Comey and Trump.
In a piece he wrote for The Post on Thursday, Kohn described a 2003 case involving Robert MacLean, an air marshal who was fired for leaking information about a Homeland Security Department decision. That case established a relevant precedent for the Comey question. The Supreme Court determined that the DHS rule prohibiting leaks was insufficient cause for firing in the whistleblower context, since it wasn’t a law. By extension, even if Trump tried to argue that Comey violated executive privilege, that, too, is not codified in law.
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If the information in that memo Comey gave to his friend was classified, the situation changes. But in his testimony, Comey described how he protected classified information in memos he wrote documenting conversations. There’s no indication, despite Trump’s lawyer’s cleverly worded statement on Thursday, that Comey crossed that important legal line.
Comey gave nonclassified notes about a conversation he had with the president to a friend with the express purpose of releasing that information to the media. In Kohn’s eyes, there’s nothing remotely illegal about that — making the new “frivolous grandstanding” from Kasowitz particularly problematic.
“The constitutional right to go to the press with information on matters of public concern, as long as you’re not doing it in a way that will bring out classified information,” Kohn said, “the reason why that is protected constitutionally is that the courts — including the U.S. Supreme Court — have ruled that the public has a constitutional right to hear this information.” In other words, it’s constitutionally protected speech.
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
It’s also worth noting that Trump’s tweeted attacks on the veracity of Comey’s testimony are also unlikely to bear much fruit. Making a mistake in testimony is not in itself illegal. When Comey made such a mistake last month, the FBI corrected his statement after the fact. Perjury requires a demonstration of intent, that the person meant to lie. That would be a difficult case to make legally.
We can safely assume, though, that Trump’s team is aware that Comey likely didn’t violate any laws, and that they are simply using these arguments as a tool for undermining the parts of his testimony that they didn’t like. How they’re doing it, though, could make their problems worse.
Kohn summarized the new minefield into which Trump and his lawyer might be walking.
“They know that they’re not going to get anything out of Comey on this, because there’s no evidence,” he added. “But they’re clearly trying to create a chilling effect. Not a chilling effect on classified information. … This is a chilling effect on people not to talk about conversations they had with the president that are not classified as a matter of law.”
There’s a caveat, though. Tom Devine, legal director for the Government Accountability Project pointed out in an email after this article was originally published that Comey himself isn’t covered by the Whistleblower Protection Act since he was both a presidential appointee and a representative of the FBI, a position which doesn’t fall under the act’s purview.
Devine thinks, though, that another federal law may apply to Comey. U.S. Code Title 18, Section 1513 makes it a federal offense for anyone who “with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense.” Whether or not Comey is an actual witness in a federal investigation is the key question here; given the uniqueness of the circumstances, there is a lot of fuzziness.
Whether or not Trump and his team would like to punish Comey for his testimony seems more straightforward.