President Donald Trump’s attorney intends to file a complaint with the Justice Department against former FBI director James Comey for his “leak” of a personal memo to a friend who then passed along the document to reporters.
That complaint, and the president’s Friday morning tweet griping about Comey’s action, could be considered obstruction of justice, according to a legal expert who spoke to the Washington Post.
Stephen Kohn, a lawyer who specializes in whistleblower protection, dismissed the pending complaint by Trump attorney Marc Kasowitz as “frivolous grandstanding” because the Justice Department’s inspector general no longer had any authority over Comey as a private citizen.
But he said the complaint, which Kasowitz also plans to file with the Senate Judiciary Committee, is legally problematic for the president.
“Initiating an investigation because you don’t like somebody’s testimony could be considered obstruction,” Kohn told the newspaper, “and in the whistleblower context, it’s both evidence of retaliation and, under some laws, could be an adverse retaliatory act itself.”
Comey testified under oath that he wrote the memo documenting his private conversation with the president, before Trump fired him as FBI director, and then gave his notes to a friend and directed him to share them with the New York Times.
Kohn said Comey’s actions, as described to lawmakers, are not illegal because the president’s activity is not confidential or classified, and executive privilege is aimed at protecting the chief executive’s deliberative process in some instances — but not this one.
“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,” Kohn said.
Kohn said Trump and his legal team almost certainly know Comey hasn’t broken the law, so their threats appear to be aimed at sabotaging his testimony and creating a “chilling effect” on others with damaging information about the Russia investigation.
“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,” Kohn said. “That is illegal —
that is unconstitutional.”