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Team Trump’s Plan to Go After Comey Sounds a Lot Like Illegal ‘Retaliation’


Marc Kasowitz may want to step away from his game of PR-palooza for just long enough to log on to LexisNexis and do a little legal research. For all the blustering about what a lying sack of bad leadership James Comey allegedly is, the Trump spin machine may be fixing to violate some federal law itself. Here’s what I’m talking about: 18 U.S. Code § 1513: Retaliating against a witness, victim, or an informant.

I know, that sounds like some Tony Soprano thug-life kind of thing that would go down on a construction site; we couldn’t possibly expect our distinguished President to engage in such shadiness – even despite his constant reminders about how he’s a builder at heart. Snicker. Section (e) of the statute prohibits people from, “knowingly, with the intent to retaliate, tak[ing] any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense.” And it’s a criminal statute, carrying a penalty of up to 10 years in prison.

Is Comey’s testimony “information relating to the commission of a federal offense”? I’d say that’s a solid “maybe.” Let’s hold off on that technical point for now. The juicier part of the analysis is whether Team Trump will, in fact, file a complaint against Comey with the Justice Department Inspector General and the Senate Judiciary Committee. According to several news outlets, sources close to the President have indicated plans to do so early next week.

The story being floated is that Comey’s late-night decision to distribute the contents of the infamous Comey Memo to the press via a law professor friend was somehow illegal. In the official response to Comey’s testimony yesterday, released shortly thereafter, Kasowitz stated the following:

“it is overwhelmingly clear that there have been and continue to be those in government who are actively attempting to undermine this administration with selective and illegal leaks of classified information and privileged communications. Mr. Comey has now admitted that he is one of these leakers.

He also testified that immediately after he was terminated he authorized his friends to leak the contents of these memos to the press in order to “prompt the appointment of a special counsel.”

The short analysis on Kasowitz’ contention that Comey is a criminal is: 1) the memo didn’t contain any classified information; 2) the First Amendment applies to everyone, even 6’8” fired FBI directors; 3) nothing about this seems remotely illegal; 4) for extra good measure, Comey was a private citizen at the time, so the Inspector General probably doesn’t even have jurisdiction over him. Know what’s much clearer though? That a President setting the dogs on what amounts to a whistle-blower is illegal. Clearly, if Trump attempts to spark any investigation or related legal action whatsoever against James Comey, he would be doing so, “knowingly, with the intent to retaliate,” against Comey for his testimony. Even more clearly, such actions on Trump’s behalf would obviously amount to having taken “any action harmful to” Comey. Comey-haters will surely argue that one man’s “retaliation” is another man’s “quest for justice,” – but given the context of Trump’s own statements, it would be hard to imagine any fact-finder not reaching the conclusion that Trump is making retaliation against Comey something of a signature move.

A maneuver Trump has perfected for many more years, though, is the one in which he makes threats and never follows through. Kasowitz’s threats aside, there’s at least a fair chance that the purported Inspector General’s investigation of Comey will have the same fate as Trump v. Everyone Else Who Has Called Him On His Bad Behavior.

[Image via screengrab]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos