Not so fast........ 'A frivolous distraction':

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'A frivolous distraction': Trump is homing in on Comey's 'leaks,' but legal experts say he did nothing wrong

http://www.businessinsider.com/author/natasha-bertrand

President Donald Trump's lawyer, Marc Kasowitz, is considering whether to file a complaint against former FBI Director James Comey over his testimony that he shared a memo with his friend last month outlining his conversations with Trump about former National Security Adviser Michael Flynn.

That friend, Columbia law professor Daniel Richman, gave the memo to The New York Times at Comey's instruction after Trump had implied that there might be tapes of their conversations, Comey told the Senate Intelligence Committee on Thursday.

"My judgment was, I need to get that out into the public square," Comey said. "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. I asked him to because I thought that might prompt the appointment of a special counsel."

In a statement later, Kasowitz called Comey's decision to share the memo with someone outside the Department of Justice "an unauthorized disclosure of privileged information."

"We will leave it to the appropriate authorities to determine whether this leaks should be investigated along with all those others being investigated," Kasowitz said.

But legal experts broadly agree that Comey's disclosure of the memo did not constitute a "leak" because it did not contain classified information, and he was a private citizen when he shared it.

"Executive privilege almost certainly does not cover the Comey memo," Steve Vladeck, a professor of law at the University of Texas School of Law specializing in national security, wrote on Friday. "And even if it did, disclosing it without authorization isn’t illegal."

Vladeck said executive privilege is meant to be used as a defense, not a weapon, and to protect government officials from being forced to share internal White House communications with outside entities. But officials who want to share those communications can't be stopped by an invocation of executive privilege alone.

"This is why Trump could not have invoked executive privilege to stop Comey from testifying, something the White House tried not to acknowledge by putting out word that he 'chose' not to do so," Vladeck wrote. "It is not a 'violation' of executive privilege to voluntarily disclose materials that could be protected by the privilege, no matter what Kasowitz says."

It's also not illegal, as long as the information Comey shared wasn't related to "the national defense" or anything financially valuable.

"It's hard to see how Comey’s after-the-fact transcription of his relevant conversations with the president fall within either of these provisions," Vladeck said. "No one is making an argument that the material in Comey’s memos was classified, or that information about a conversation could have the kind of monetary value required to trigger the federal conversion statute."

David Cole, the national legal director of the ACLU, agreed.

"It's not a leak," he said on Friday. "The material was not classified."

Additionally, said former DOJ spokesman Matthew Miller, Comey wasn't acting as Trump's attorney, so there was "no attorney-client privilege."

It's a "frivolous distraction," Miller said, adding that there was "no violation" of Department of Justice rules in Comey sharing his memo with someone outside the department.

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