There was a lot of concern that Donald Trump might try to use executive privilege to block James Comey from testifying about his firing and the events that led up to it. However, amid consensus that there was no way he could politically or legally do so, the White House let Comey’s testimony go ahead.
Less than 24 hours after Comey’s riveting testimony, Trump tried to close the barn door with the horse several miles down the highway. Fox Business’ Charlie Gasparino revealed that Trump’s outside lawyer, Marc Kasowitz, planned to file a legal complaint against Comey with the Justice Department’s inspector general and the Senate Judiciary Committee. Watch here.
Kasowitz claimed that Comey overstepped his bounds when he had his friends read a memo documenting his interactions with Trump to The New York Times. Comey testified that he hoped its release would force the appointment of a special counsel.
As we now know, it worked; Robert Mueller was appointed as special counsel soon after the memo’s existence became known. Kasowitz contends that in doing so, Comey disclosed a privileged conversation with Trump. Gasparino discussed this development with two “pretty smart” white-collar defense attorneys, who both agreed Kasowitz was grabbing at straws. A number of legal experts believe that this is more than a waste of time, though. They think it could be illegal.
When this broke, Philip Bump of The Washington Post was on the phone with Stephen Kohn, a lawyer who specializes in whistleblower protection. They were talking in broad terms about Comey’s testimony, but Bump asked Kohn what he thought about Trump’s threatened complaint. Kohn didn’t hesitate. He believes that this is not only “frivolous grandstanding” on Trump’s part, but it could potentially violate federal whistleblower law.
“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.”
At first glance, this does look like a case of a boss (Trump) trying to legally bludgeon a former employee (Comey) into silence after that former employee said something the boss didn’t like. However, according to Government Accountability Project legal director Tom Devine, the federal Whistleblower Protection Act doesn’t apply to Comey because he was both “a presidential appointee and a representative of the FBI.”
Devine does, however, believe the complaint could potentially amount to witness intimidation. Bump thinks that “there is a lot of fuzziness” about whether Comey is a witness in an active investigation. However, it’s hard to believe that he isn’t a witness. Remember, he clearly believed that Trump was trying to bully him into not only breaking the law, but his oath of office.
Richard Painter, an ethics counsel under George W. Bush and one of the many lawyers shining the hot lights on Trump’s potential violations of the Emoluments Clause, also thinks this complaint could potentially be a criminal act. He went into an epic Friday afternoon tweetstorm in which he denounced the planned complaint as obstruction of justice in plain sight.
DJT engages in witness intimidation and obstruction of justice if he himself –or through his lawyer — tells DOJ to investigate Comey.
— Richard W. Painter (@RWPUSA) June 9, 2017
DJT engages in witness intimidation and obstruction of justice if he himself –or through his lawyer — tells DOJ to investigate Comey.
— Richard W. Painter (@RWPUSA) June 9, 2017
Rule 1.2(d) (a lawyer may not assist a client in a crime or fraud)
— Richard W. Painter (@RWPUSA) June 9, 2017
DOJ investigation only warranted if there is evidence of serious wrongdoing
— Richard W. Painter (@RWPUSA) June 9, 2017
Witness intimidation: My lawyer will tell my subordinates at DOJ to investigate you for telling the NYT about my obstruction of justice
— Richard W. Painter (@RWPUSA) June 9, 2017
A number of other legal experts think this complaint is frivolous at best. Among them is Harvard law professor Laurence Tribe.
If filed as threatened, this wd be a frivolous & abusive Trump complaint against Comey: @CNNPolitics https://t.co/GBBtAl3Po2
— Laurence Tribe (@tribelaw) June 9, 2017
As does Senator Richard Blumenthal, a member of the Senate Judiciary Committee and Connecticut’s former attorney general.
Trump’s call for “complaint” against Comey =empty threat. Comey acted legally as a private citizen to reveal the extent of Trump’s coercion.
— Richard Blumenthal (@SenBlumenthal) June 9, 2017
It has already been amply demonstrated that this complaint is frivolous. After all, it is clear beyond any doubt that Trump himself effectively waived any privilege surrounding his conversations about Comey by speaking and tweeting about them. Even without that to consider, long-established Supreme Court precedent holds that executive privilege does not apply to potential misconduct.
When the best-case scenario is that Trump’s threat is frivolous, that isn’t very good. But now it’s possible that he himself could be breaking the law. But then again, we’re dealing with a president who considers the Constitution to be merely something in his way.
(featured image courtesy Gage Skidmore, available under a Creative Commons BY-SA license)
