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Was Comey's Leak Legal? Trump to File Complaint

by Countable | 6.18.17

In his testimony in front of the Senate Intelligence Committee, James Comey admitted he wrote memos about his private meetings with President Trump, then leaked those memos to the press, through a friend. Was the leak illegal? Opinions are mixed.

President Trump’s personal lawyer, Marc Kasowitz, issued a statement after Comey’s testimony that raised the question of whether or not Comey’s leak violated laws around classified information and executive privilege. Kasowitz also repeatedly referred to the information leaked in the plural-- "memos" as opposed to “memo”.

In a review of the full transcript of the hearing Comey specifically explains the memo he created after his February 14 meeting with the president was crafted in such a way to be unclassified. It was this document, in the singular, that he arranged for a friend to leak to the New York Times. Comey testified:

"And my judgment was, I needed to get that out into the public square. And so I asked a friend of mine to share the content of the memo with a reporter."

Given that the memo was not classified, some legal experts assert the leak was not illegal. In an opinion piece in the Washington Post Stephen M. Kohn, a partner in a whistleblower-rights law firm argued:

"Comey’s admission — that he gave a memo documenting a conversation with Trump to a friend to be leaked to the press — is also legal. Was the information classified or secret as a matter of a federal law? Absolutely not. Did he reveal a matter of public interest? Yes. Did Comey have a right to expose these facts anonymously? Yes.”

In the Daily Caller, however, George Washington University law professor Jonathan Turley is quoted as stating:

""Besides being subject to Nondisclosure Agreements, Comey falls under federal laws governing the disclosure of classified and non-classified information. Assuming that the memos were not classified (though it seems odd that it would not be classified even on the confidential level), there is 18 U.S.C. § 641 which makes it a crime to steal, sell, or convey ‘any record, voucher, money, or thing of value of the United States or of any department or agency thereof.’”

Turley assumes that all of Comey’s memos were written on a government computer, which is not verified through Comey’s testimony. He only notes using a secure government laptop to detail a classified meeting with then-President Elect Trump after their first meeting, which is not the meeting described in the leaked memo. Regardless, Turley argues that as a federal employee at the time the memos were created Comey is subject to the "Privacy Act." He quotes the FBI website as stating:

"Dissemination of FBI information is made strictly in accordance with provisions of the Privacy Act; Title 5, United States Code, Section 552a; FBI policy and procedures regarding discretionary release of information in accordance with the Privacy Act; and other applicable federal orders and directives.”

During his questions at the hearing, Sen. Roy Blunt (R-MO) addressed the issue of whether or not the unclassified memos were "personal" or “government” documents. He asked:

"So you didn’t consider your memo or your sense of that conversation to be a government document? You consider it to be somehow your own personal document that you could share with the media as you wanted to?”

Comey asserted that he felt the unclassified memos were, in fact, his personal "recollections" and thus his to disseminate:

" I understood this to be my recollection, recorded, of my conversation with the president. As a private citizen, I felt free to share that. I thought it very important to get it out.”

But what about executive privilege?

At no point in Comey’s testimony did he report that the president had taken steps to assert to Comey that their conversations were privileged, which according to various legal scholars is an important point. As reported by ABC News:

"The president would have to claim executive privilege before the conversations happened, said Mark Rozell, an expert on executive privilege and the Dean of the Schar School of Policy and Government at George Mason University."

The White House also could have asserted executive privilege during the weeks leading up to Comey’s scheduled testimony, but they did not. According to Samuel Gross, a law professor at the University of Michigan:

"Trump and his advisers and lawyers knew for weeks that Comey was going to testify today about his conversations with the president, but (from what I've read) they did nothing to assert any sort of privilege. Why not? I have no idea...Whatever the reason, that failure to claim any privilege could easily mean that if the president had a privilege to prevent these disclosure, it's now gone forever.”

Finally, there is the question of whether or not Comey is protected under current law as a whistleblower. Since Comey was a private citizen at the time he leaked the document in question, he is not protected under the Whistleblower Protection Act, which is specifically written to protect federal employees. Nor would he likely be covered under whistleblower laws concerned with the private sector, like the Occupational Health and Safety Act.

Mark Kasowitz is reported to be filing a complaint against the former FBI director with the Justice Department Inspector General and the Senate judiciary committee in the next week.

Do you think Comey should suffer consequences for leaking his memo to the press? Use the Take Action button to tell your reps what you think!

— Asha Sanaker

(Photo Credit: The Federal Bureau of Investigation)

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