Fact-checking President Trump’s attorney after Comey's testimony

President Donald Trump's personal attorney Marc Kasowitz, said the president 'never, in form or substance' directed former FBI Director James Comey to stop investigating anyone, including former National Security adviser Michael Flynn. (June 8, 2017)

President Donald Trump says that fired FBI Director James Comey’s testimony on June 8 absolved him and exposed Comey as "a leaker."

"Despite so many false statements and lies, total and complete vindication...and WOW, Comey is a leaker!" Trump tweeted June 9.

After Comey’s under oath testimony before the Senate Intelligence Committee, Trump’s lawyer Marc Kasowitz disputed several of Comey’s statements. But there was a lot of spin in Kasowitz’s comments. 

Here we’ll go over the televised June 8 statement from Trump’s attorney and sort out the facts.

"Although Mr. Comey testified that he only leaked the memos in response to a tweet, the public record reveals that the New York Times was quoting from those memos the day before the referenced tweet."

Comey’s written testimony said that after his first conversation Jan. 6 with then President-elect Trump he felt compelled to document their conversation in a memo. "Creating written records immediately after one-on-one conversations" with Trump became practice, Comey wrote. 

During the Senate hearing, Comey said he asked a friend to share the content of a memo with a reporter after Trump tweeted on May 12 about "tapes."

Comey, who was fired May 9, said: "The president tweeted on Friday, after I got fired, that I better hope there's not tapes. I woke up in the middle of the night on Monday night, cause it didn't dawn on me originally that there might be corroboration for our conversation. There might be a tape.

"And my judgment was, I needed to get that out into the public square. And so I asked a friend of mine to share the content of the memo with a reporter. Didn't do it myself, for a variety of reasons. But I asked him to, because I thought that might prompt the appointment of a special counsel. And so I asked a close friend of mine to do it."

Comey at the hearing also said he shared with the FBI's senior leadership team communications he had with Trump. 

Here’s the timeline of events:

May 9: Comey is fired.

May 11: The New York Times publishes a story about a January dinner Trump and Comey had, based on interviews with Comey’s associates. Comey had told the associates about the dinner.

May 12: Trump tweets, "James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!"

May 15: Comey wakes up realizing the relevance of a potential tape, according to his testimony.

May 16: The New York Times publishes a story about the existence of Comey’s memos. The New York Times said it had not seen the memos, but included information from one of them about an Oval Office meeting in February, as explained and quoted by a Comey associate.

Kasowitz seemed to be referring to the New York Times story published May 11 — the day before Trump’s "tapes" tweet — narrating a January dinner between Trump and Comey. However, that story is not attributed to the memos, but to "two people who have heard his account of the dinner."

The New York Times reporter who authored both the May 11 and May 16 articles, Michael S. Schmidt, told PolitiFact, "the record on this speaks for itself."

Peter Baker, a New York Times reporter who contributed to the May 11 story, also tweeted that Kasowitz’s claim was wrong.

Overall, Kasowitz is wrong to suggest the public record shows that Comey leaked the memos before Trump’s tweet. Comey’s associates, however, spoke with the New York Times before Trump’s tweet. While the earlier story is based on their recollections of what Comey told them, much of the same information is contained in a memo Comey wrote.

"Mr. Comey admitted that he unilaterally and surreptitiously made unauthorized disclosures to the press of privileged communications with the president."

Kasowitz did not use the term executive privilege. That applies when Congress wants information from the White House and the administration resists. Legal experts say that case law on executive privilege is thin, but under those circumstances, the principle can shield the release of certain details. There are caveats.

There is no privilege if unlawful actions are discussed. And while Kasowitz might suggest that Comey broke a law, there is no legal penalty, particularly for anything Comey did after he was fired.

"The case for applying the privilege is strongest when the president is discussing the exercise of one of his or her powers with a member of the White House staff," said Edward Imwinkelried, an expert in evidentiary law at UC Davis. "However, you can make a strong case for extending the privilege to a conversation between the president and a high-ranking federal official outside the White House staff, so long as the topic of the conversation relates to a subject on which the president has power to act."

Imwinkelried said that Trump and Comey’s conversations enjoyed some expectation that they wouldn’t be shared without permission, and that Trump was the holder of the privilege. But the protection is not absolute and that Trump might have waived it with his own statements.

Lisa Griffin at Duke University School of Law said Trump put that protection at risk.

"Where the president has already described conversations he had with Director Comey in his tweets or other public statements, then with respect to what has been disclosed, there is no longer any privilege," Griffin said.

In his dismissal letter for Comey, Trump referred to being assured on three occasions that he was not the subject of an investigation. Griffin emphasized that it is unclear to what extent Trump waived privilege. All we can say is that it was less ironclad than it might have been without his public statements.

It’s worth noting that the consequences for Comey are more ethical than legal.

"Absent revelations of classified material or certain disclosures related to national defense or governmental financial interests, there is no crime that stems from discussing privileged communications," Griffin said.

"The leaks of this privileged information began no later than March 2017 when friends of Mr. Comey have stated he disclosed to them the conversations he had with the president during their Jan. 27, 2017 dinner and Feb. 14, 2017 White House meeting."

We didn’t see evidence that confirmed Kasowitz’s statement. Comey said he discussed his memos right after he wrote each one with colleagues at the FBI. Prior to being fired, the only other publicly reported conversation is a lunch he had with  Benjamin Wittes, a senior fellow at the Brookings Institution and editor-in-chief of the Lawfare blog.

In May, after Comey was fired, Wittes wrote an account of a March 27 conversation with Comey.

Wittes emphasized that "there was no leak from Comey, no leak from anyone else at the FBI, and no leak from anyone outside of the bureau either—just conversations between friends, the contents of which one friend is now disclosing."

According to Wittes, his conversation with Comey was short on specifics.

"Comey never told me the details of the dinner meeting; I don’t think I even knew that there had been a meeting over dinner until I learned it from the (New York)Times story," Wittes wrote. "But he did tell me in general terms that early on, Trump had ‘asked for loyalty’ and that Comey had promised him only honesty."

Clearly, Comey’s interactions with Trump and the White House shaped his conversations with Wittes. Less clear is whether speaking of those issues in general terms represents a breach.

"(Comey) 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.’ "

This is accurate. Comey did say he shared one memo, the one about his dinner with Trump. He said he thought of it after Trump tweeted that Comey better hope that there weren’t any tapes of their conversations. Comey said he hoped there were tapes so his account could be corroborated.

"My judgment was, I need to get that out into the public square," Comey said during the hearing. "I asked a friend of mine to share the content of the memo with a reporter. I asked him to because I thought that might prompt the appointment of a special counsel."

At another point in his testimony, Comey said he shared the memo about his conversation with Trump about Flynn with a friend. From his testimony, it is unclear if both events were in a single memo. Comey said the person he shared with was a professor at Columbia University. Law professor Daniel Richman told PolitiFact that he was that person.

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Fact-checking President Trump’s attorney after Comey's testimony
in a televised statement
Thursday, June 8, 2017