Comey admits he indirectly passed a personal memo to the media, but legal experts say Trump is misusing the term and case appears extremely thin

The president called Comey 'a leaker', but is there any legal case against him?

When Donald Trump gets in a fight, he sues. “SEE YOU IN COURT,” he tweeted in February, after his first travel ban was blocked. It is a pattern established over many decades. So the president’s plan to file a legal complaint against the former FBI director James Comey, who on Thursday called him a liar, is business as usual.



But in this particular fight, the president might want to check his impulse to sue. The supposed case against the former federal prosecutor appears to be extremely thin, legal experts say. And suing could actually draw the president himself further into legal trouble.

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Trump’s argument, somewhat confusingly articulated by his lawyer on Thursday, is that Comey violated the law by “leaking” sensitive material to the press. “WOW, Comey is a leaker!” Trump tweeted Friday.

Trump’s lawyer Marc Kasowitz phrased it differently, accusing Comey of “unilaterally and surreptitiously” making “unauthorised disclosures to the press of privileged communications with the president”.

Those words do not cohere as a legal argument of intimidating precision and strength, said the Fordham law school professor Jed Shugerman, author of the Shugerblog commentary site.

“This should not be called a leak,” Shugerman said of Comey’s decision to pass a personal memo to the media through a friend. “The word ‘leak’ refers to revealing secret and classified information. It is a misuse of the term ‘leak’ to apply that in any way to what Comey described in his testimony.”

Shugerman pointed out that Comey described in his testimony on Thursday how he had taken care not to put classified material in the memo in question. The memo recounted how Trump had directed Comey, as Comey understood it, to end an investigation of the former national security adviser Michael Flynn.

Trump’s legal team plans to file a complaint against Comey with the office of the inspector general for the Department of Justice (DoJ) early next week, according to a source close to the legal team who did not want to speak on the record before the complaint was filed.

Richard Painter, a White House ethics counsel under George W Bush, tweeted that the move could constitute obstruction of justice by the president and “witness intimidation”, since Comey is a witness in any potential case involving the president.

“Trying to get DoJ to go after Comey – a material witness – over ‘leak’ is yet more obstruction of justice,” Painter tweeted.

Trump’s incorrect reference to the Comey memo as a “leak” does not necessarily mean that releasing the memo was lawful, Shugerman cautioned, pointing to seven conceivable scenarios under which Comey’s release of the memo could present a legal hazard.

Under none of the seven scenarios did Comey appear to be much in danger of transgression, however, Shugerman said. Here are the relevant categories identified by Shugerman, with his analysis in quotations:

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