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Trump's Complaint Against Comey Likely to Fail, But Be Effective
He's Off the Hook as a Former Employee, But Mere Filing Can Have Major Impacts
Trump's lawyer says he will file a complaint about Comey with the Department of Justice's [DoJ] Inspector General, but there seems to be little point. The only criminal statute which is even arguably relevant is 18 U.S. Code § 641 which makes it a crime to abscond with government records. But even assuming the memos belong to the government rather than Comey, simply sharing a copy hardly seems to fall within the statutory terms of "steals, purloins, or knowingly converts."
Moreover, the DoJ's official written policy, which is apparently binding on Mueller, states: "it is inappropriate to bring a prosecution under 18 U.S.C. § 641 when . . . the defendant obtained or used the property primarily for the purpose of disseminating it to the public."
While it is quite possible that Comey violated one or more non-disclosure agreements and/or DoJ regulations, there is virtually nothing DoJ can do to Comey because he is no longer employed by the government. That's why, for example, Huffington Post termed the filing "effectively pointless."
However, notes Banzhaf, even a complaint which fails legally, and does not trigger any prosecution or other adverse action against the respondent, can be very beneficial to Trump and his team.
First, the actual filing of the complaint is bound to generate considerable publicity, thereby providing an additional opportunity for his lawyers to try to explain in great detail to the public why they think Comey's conduct was wrongful and even illegal.
Second, the filing and resulting investigation would undercut Comey's credibility as a witness in any criminal proceeding, in the ongoing credibility battle between himself and Trump, and generally in the eyes of the public, suggests Banzhaf.
Third, it could create an apparent conflict of interest in the eyes of many since the same agency which would supposedly be conducting an impartial investigation of Comey is at the very same time working with him to obtain documents and testimony for Mueller's investigation.
Moreover, since Comey's own testimony strongly suggested that he and Mueller are friends, Trump can claim that Mueller will try to persuade those investigating the complaint against Comey to go easy on him - a bizarre parallel to what Comey claims Trump asked him to do regarding Michael Flynn.
Many of the complaints I filed were not successful from a legal point of view, but nevertheless managed to help me achieve public interest goals, says Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418