Most of what President Donald Trump and his sycophants say makes my blood boil and the public statement by his private lawyer in response to yesterday’s testimony by former FBI director James Comey was no exception. Marc Kasowitz equated the release by Mr. Comey of the personal notes of his conversations with Mr. Trump with leaks of classified information, essentially conflating matters of privilege protected by civil law and matters of secrecy and confidentiality protected by criminal law.
Mr. Kasovitz knows better, but he was addressing the court of public opinion rather than a court of law, so maybe that didn’t matter to him. I began legal practice at a time when lawyers rather than public relations agents making out-of-court statements intended to sway public opinion was nowhere near as common as it is today, and certainly not widely accepted as a best practice. So maybe I’m a little old school on this, but it seems to me that when a lawyer shifts his focus from the courtroom to the media and public opinion he or she risks being labeled a shill rather than a legal advocate.
Assuming that the notes of the conversations were subject to the so-called “executive privilege” (a huge assumption, by the way) their release by Mr. Comey was at most a civil matter between the president and Mr. Comey. Had the president acted first he may have been able to persuade a civil court to prevent the release. At this point the president theoretically would have the right to sue Mr. Comey for any damages to the president arising from the release, although I cannot imagine what those damages would be – damage to the president’s reputation? Can you imagine that trial?
The same principle of law applies to other privileges, such as the priest-penitent privilege and lawyer-client privilege. Breaking the confessional seal is a violation of canonical law and can result in a priest being defrocked, but it is not a crime against the state. Violating the lawyer-client privilege can get you sued and likely will get you disbarred but will not send you to prison.
These privileges, considered “personal” in nature, are vastly different under the law from matters that are protected from disclosure by various provisions of state and federal that make disclosure a crime against the state rather than a civil wrong against another person. Criminal laws prohibit the disclosure of not only classified national security information but also various types of personal, health, and other information.
Here is my challenge to Mr. Kasovitz: Cite the provision of the United States Code or Code of Federal Regulations carrying a criminal penalty that Mr. Comey allegedly violated. If you can’t, then please stop trying to mislead the public.
As an aside, would I have viewed Mr. Comey in a somewhat more favorable light had he handed his notes directly to the New York Times? Yes, but he did take ownership of the disclosure and there is a question of how much can we expect from this man? This was a person placed under enormous pressure in a matter of extraordinary gravity and it is unreasonable to demand perfection in every step that he took in dealing with an unprecedented situation.
Mr. Comey conceded (wished?) that he could have been stronger in dealing with aspects of the situation. It is actually a laughable matter, however, for anyone to suggest that he or she would have done better under similar circumstances. Yeah, sure, would be my reaction to such claims. I’ve seen people claiming to be persons of integrity wilt under far less pressure. Mr. Comey did well enough, and I believed every word that he said.
Thank goodness he did go public with this information because, regardless of the outcome of the various ongoing investigations, the attempt by the president to bully the FBI director into closing the investigation into the president’s former National Security Adviser’s ties to Russia is something about which the American public simply had to be made aware. I happen to be one of those people who believes that Mr. Trump couldn’t care less about Mr. Flynn (or anyone else other than himself and his immediate family) and is worried solely about the Russia investigations eventually implicating either his son-in-law and senior adviser, Jared Kushner, or the president himself.
June 9, 2017