President Trump’s lawyers, after rethinking their legal strategy, have shelved plans for now to file complaints accusing former FBI Director James Comey of leaking confidential information about his conversations with the president, according to two sources familiar with the lawyers’ plans.
The decision to back away from repeated public threats to launch an all-out legal assault on Comey reflects a significant tactical retreat for Trump’s legal team. It was prompted by concerns that such a move might antagonize special counsel Robert Mueller as he investigates Russian interference in the 2016 election and possible ties to Trump’s presidential campaign, the sources said.
The public attacks on Comey began after the ex-FBI director testified on June 8 that he authorized a friend to share with a reporter portions of a memo containing his account of a White House meeting at which Trump allegedly asked him to go easy on former national security adviser Michael Flynn. The next day, Marc E. Kasowitz, the president’s chief lawyer, accused the former FBI director of “unilaterally and surreptitiously” making “unauthorized disclosures to the press of privileged communications with the president.”
“We will leave it to the appropriate authorities to determine whether these leaks should be investigated along with all the others being investigated,” Kasowitz said in a statement he read to the news media at the National Press Club.
After his press appearance, sources close to Kasowitz repeatedly promised that the president’s lawyers would file within days formal complaints with the Justice Department inspector general and the Senate Judiciary Committee seeking an investigation of Comey. One such story, published by CNN on June 9, said the lawyers planned to file the complaints “early next week.” Another story, on Fox News the same day, said the filings by “super attorney” Kasowitz would be part of a “three pronged legal attack” on Comey that “will likely be filed next week.”
But nearly three weeks later, no such filings have been made, and it now appears they won’t be anytime soon. The reason, sources said, is that Kasowitz — and his co-counsels Jay Sekulow and John Dowd — are concerned that such filings might antagonize Mueller and potentially backfire on the president.
The complaints have been put off “out of deference to Mueller to let him do his job,” said a source close to Trump’s legal team, who asked not to be identified by name. But, the source insisted, “[they] will be filed at some point.”
Still, the tactical retreat seems likely to reinforce the impression that Trump and Kasowitz, his longtime personal lawyer, have a penchant for making intimidating legal threats that often don’t materialize.
During the campaign, Trump at various points threatened to sue the Washington Post, the New York Times, Sen. Ted Cruz and multiple women who had accused him of sexual misconduct — none of which he actually did. “Your article is reckless, defamatory and constitutes libel per se,” Kasowitz wrote Times executive editor Dean Baquet on Oct. 12, 2016, demanding that a story accusing Trump of inappropriately touching two women be retracted and removed from the paper’s website. “Failure to do will leave my client with no option but to pursue all available actions and remedies.”
The paper never retracted the story, and it is still accessible on the Times website. Kasowitz has yet to take any action against the Times.
“This is consistent with Donald Trump’s style — making blustery attacks with no follow-through and idle threats to intimidate with no substance,” said Mark Zaid, a veteran national security lawyer in Washington who often represents government officials facing investigations in security investigations.
One likely reason for the delay, according to Zaid and other national security lawyers, is that it is far from clear whether Justice Department Inspector General Michael Horowitz would even consider such a request, given that Comey is no longer a Justice Department employee. “Technically, he doesn’t have any jurisdiction,” said Michael Bromwich, a former Justice Department inspector general.
There is no evidence that any of the information Comey asked his friend to leak was classified. The only obvious legal issue would be whether Comey used a government computer to type up his contemporaneous account of his conversations with Trump (he testified that he wrote one of them in his car immediately after meeting with the president) and, if so, did they constitute a government document that had been improperly removed from government records, according to Bromwich. Horowitz is already looking into Comey’s controversial handling of the Hillary Clinton email investigation last year. Bromwich thinks, in light of that, it’s likely the inspector general will want to question the former FBI head about the use of a government laptop for his memo. “I predict there will be a footnote in his report” about the issue, Bromwich said.
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