President Donald Trump’s personal defense lawyer threatened Friday to file legal complaints against former FBI Director James Comey, over Comey’s decision to give his longtime friend notes he had written after his conversation with Trump.
The lawyer, Marc Kasowitz, intends to file a complaint with the Department of Justice’s Inspector General, and send a formal letter to the Senate Judiciary Committee, according to multiple news outlets. The timing of any such complaints is unclear, but CNN reports that Trump’s legal team is “actively exploring their options.”
But according to legal experts, filing a complaint against Comey to the Justice Department, his former employer, after he was already fired is effectively pointless. Likewise, it is unclear if a formal letter of complaint to the Senate Judiciary Committee would result in any meaningful action, either.
Kasowitz’s complaints center on Comey’s admission that he gave his friend, Columbia Law School professor Daniel Richman, a copy of a memo he had written after a February meeting with the president and asked Richman to give it to a reporter.
Trump’s lawyer claimed Thursday that the memo was somehow “privileged,” but he did not explain what he meant by that. The memo was not classified, and Trump did not invoke executive privilege to prevent Comey from disclosing what the two men discussed.
On the contrary, Trump tweeted last month that Comey had better hope there were no “tapes” of their conversations. In response to this veiled threat, Comey said Thursday, “my judgment was I needed to get [the memo] out into the public square. So, I asked a friend of mine to share the content of the memo with a reporter.”
Kasowitz also issued a statement Friday afternoon in which he said it was “obvious” that Comey must have given The New York Times his memo before the president tweeted on May 12, threatening him with “tapes.” Kasowitz cited a Times story from May 11, which detailed a dinner between Trump and Comey, at which Trump asked Comey to pledge his loyalty to the president.
But that story was based on two people Comey had spoken to about the dinner. It was not based on any memo, according to the Times’ reporting.
White House ethics czar under President Barack Obama, said he is prepared to formally defend the fired FBI director, should Kasowitz follow through on his threat to take legal action against Comey.
“This is an abuse of process, and we will be filing a defense of Comey,” Eisen wrote on Twitter Friday morning. Addressing Kasowitz by his Twitter handle Eisen added, “Beware: there are serious consequences for abuse of process.”
While the DOJ could hypothetically investigate a complaint to the Inspector General, it has very limited jurisdiction over people who don’t work there anymore. Similarly, the Judiciary Committee is also extremely limited in its reach over Comey’s actions given how Comey characterized them ― as a private citizen giving his own recollections of a conversation to another private citizen, in this case, Richman.
Still, threatening legal action against his perceived enemies has long been one of Trump’s signature moves, both in real estate and politics. During the 2016 presidential campaign, Trump threatened to sue The Washington Post, the Louisiana Republican Party, The New York Times and at least four women who accused him of sexual misconduct. Trump and his lawyers never followed through on any of these threats.
But even merely asking the Department of Justice to investigate Comey could land Trump in hot water, said Richard Painter, a former George W. Bush ethics czar and a frequent Trump critic.
The president “engages in witness intimidation and obstruction of justice if he himself ―or through his lawyer ― tells DOJ to investigate Comey,” Painter said in a tweet Friday.
This story has been updated to include reaction from Painter, a Friday afternoon statement from Kasowitz, and to clarify Comey’s description of his thinking about the memo.
CORRECTION: A previous version of this story inaccurately stated that Comey gave multiple memos to his friend, Richman. Comey only gave Richman one memo.