Lawyer to the “Predisent” Marc Kasowitz is reportedly considering doubling down on his suggestion that former FBI Director James Comey somehow broke the law when he leaked the memos recounting his meetings with Trump. That’s certainly going to win the overly confident yet spelling challenged attorney points with the Fox News set — who continue to push the “Comey is a leaker” trope without any apparent explanation of why that matters — but it’s unlikely to get him very far “legally” which, one would have assumed, was the point of Trump’s hiring a “lawyer.”
Obviously Comey leaked these memos when he handed them over to Professor Daniel Richman. He admits that and he’s a smart enough guy not to admit to a crime. As a technical matter, one could argue that memos written by the FBI Director detailing meetings he had in his official capacity are property of the FBI and not his personal documents to distribute as he pleases. That’s probably true in all fairness. But, as the old proverb says, “who gives a flying f**k?”
Because breaching government rules about the disposition of official — but non-classified — documents isn’t much more than a fireable offense and, spoiler alert, Comey was already fired. As Professor Steve Vladeck pointed out on Twitter yesterday, there’s just no criminal act here:
Free Attorney Time Tracking Template For Smarter Billing
Tired of messy time logs? This free attorney time tracking template helps you bill with confidence and accuracy. Learn more in the full article.
2. Don't get caught up on whether it was a "leak" or not; no statute prohibits "leaks," as such. Q. is whether _another_ statute applies…
— Steve Vladeck (@steve_vladeck) June 8, 2017
4. Only real candidate is the federal conversion-of-property statute, 18 U.S.C. § 641: https://t.co/JqSwfUfatO. Did Comey "convert" memo?
— Steve Vladeck (@steve_vladeck) June 8, 2017
6. Leak prosecutions under § 641 have instead focused on value of the information being leaked. Here, the memo has _no_ pecuniary value.
— Steve Vladeck (@steve_vladeck) June 8, 2017
8. …and there may be ethical issues (which I'll leave to the ethics experts). But any legal argument is a real stretch, here.
/end
— Steve Vladeck (@steve_vladeck) June 8, 2017
But that’s apparently not going to stop Kasowitz from filing a complaint with the Justice Department Inspector General and the Senate judiciary committee according to CNN. It’s a foolish move from a legal standpoint, but the moment Kasowitz called a press conference, we should have realized this isn’t so much a legal defense as an expensive mission to feed the misdirection machine at all costs.
No word yet if Kasowitz plans to employ spell check on these complaints.
Trump’s lawyer to file complaint against Comey over memos [CNN]
Earlier: Marc Kasowitz Takes Break From Partying At Trump Hotel To Talk To The Press
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.