From there, Kasowitz’s defense frequently diverged from the public record. He claimed Comey “admitted that he unilaterally and surreptitiously made unauthorized disclosures to the press of privileged communications with the president,” referring to Comey’s admission he had shared at least one of the contemporaneous memos he drafted after speaking with Trump. Comey told the committee he asked a friend, a Columbia Law School professor, to pass along one memo to The New York Times. He wanted to “get that out into the public square” after Trump threatened to release tapes of their conversations—and because Comey thought it “might prompt the appointment of a special counsel.”
But Kasowitz made a significant error in describing the sequence of events prior to the memo’s disclosure. He claims the public record “reveals that The New York Times was quoting from these memos the day before the referenced tweet, which belies Mr. Comey’s excuse for this unauthorized disclosure of privileged information and appears to be entirely retaliatory.” In fact, Trump posted his tweet about “tapes” of their conversations on May 12. The first Times article about the memos wasn’t published until four days later on May 16. While the Times did publish an article on May 11 describing the January 27 dinner in which Trump purportedly asked Comey for his loyalty, the Times cited officials who recalled Comey’s descriptions of the evening to them, not the memos themselves.
Kasowitz also described Comey’s drafted recollections as “privileged communications, one of which was classified.” Comey never described the memos as classified in his written testimony or in his answers to senators’ questions on Thursday. At one point in his written statement, he explicitly said he “immediately prepared an unclassified memo of the conversation about Flynn.” He also did not correct senators who referred to the memos as unclassified multiple times throughout the hearing, despite taking pains to avoid discussing potentially classified matters at other times.
It’s not clear why Kasowitz referred to the memos as “privileged communications.” Because Comey was not Trump’s lawyer, priest, or spouse, his conversations with the president would not be covered by the typical legal privileges. From the available context, it’s possible Kasowitz meant to refer to the memos as falling under executive privilege, which shields some communications between presidents and their subordinates from judicial and legislative scrutiny. But the White House explicitly said Monday it would not invoke that privilege to block any of Comey’s testimony. Even if the memos did fall under its scope—and it’s unclear if they would—his discussion of them on Thursday would therefore not be illicit. Executive privilege does not apply to disclosing documents to the public or the press.
