President Trump’s personal lawyer offered a contradictory and partially inaccurate defense of his client after James Comey’s testimony on Thursday, accusing the former FBI director of lying under oath before Congress and suggesting he should be criminally investigated for sharing memos he drafted about his private conversations with Trump.
Marc Kasowitz, a Manhattan-based corporate attorney and longtime legal fixer for Trump, began by touting the parts of Comey’s testimony that favored the president. He cited Comey’s assertions he hadn’t seen evidence that Russian hacking affected any vote counts and that Trump himself wasn’t a target of FBI investigation when Trump fired Comey on May 9. He also quoted parts of the testimony as evidence the president “never sought to impede the investigation” into Russian electoral interference.
But he also attacked Comey’s credibility and claims when they cast a negative light on Trump. “The president never told Mr. Comey, ‘I need loyalty, I expect loyalty’ in form or substance,” Kasowitz said, implicitly accusing the former FBI director of perjury. “Of course, the Office of the President is entitled to expect loyalty from those who are serving in an administration,” he added, before criticizing the internal leaks that have bedeviled Trump’s presidency.
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.
Those circumstances make Kasowitz’s subsequent suggestion of prosecuting Comey for the disclosures even more puzzling. “We will leave it to the appropriate authorities to determine whether [these] leaks should be investigated along with all those others being investigated,” he wrote. Breaking executive privilege isn’t a criminal offense, so it’s unclear on what grounds Comey would be investigated. The overall aim of Kasowitz’s statement appears to be to shift the investigative cloud away from his client and onto the man all but accusing him of obstruction of justice—a task it does not accomplish.