For Trump, a prosecution of Comey would be a disaster

The President and his personal attorney, Marc Kasowitz, should be careful what they wish for.

In his aggressive defense of President Trump, Kasowitz has in substance accused the former Director of the FBI of leaking “privileged communications” and of possibly committing perjury in his testimony before the Senate Intelligence Committee on Thursday. 

The Kasowitz accusations, made shortly after James Comey completed the public portion of his Senate testimony, if actively pursued, would necessarily shroud the Trump administration in a complex web of investigations, congressional hearings and court proceedings that would ultimately pull it into a black hole of legal destruction. 

If Kasowitz’ s accusations of criminal conduct against Comey were accepted and believed by the Senate and federal prosecutors and a federal grand jury indictment followed, the result would be a criminal trial of the former FBI director, requiring the testimony under oath of the President of the United States. Trump said Friday that he’d be willing to testify under oath “one hundred percent.”

Such a grand jury investigation and presentation would necessarily require the appointment of a second “special counsel” or the creation of a new independent prosecutor to avoid any interaction and conflict with the Justice Department, which nominally directs and controls the current Robert Mueller-led investigation under existing law. Mueller’s current appointment authority doesn’t cover investigation of the FBI or its former director.

In his written statement Kasowitz alleges that, “The President also never told Mr. Comey, ‘I need loyalty, I expect loyalty’ in form or substance.” The President followed with a Tweet of his own at 6:10am Friday asserting that, “Despite so many false statements and lies, total and complete vindication …and WOW, Comey is a leaker!”

Kasowitz also claimed that Comey’s testimony about being pressured by President Trump to drop the Flynn investigation is patently false.  The President’s personal counsel asserts “… the President never, in form or substance, directed or suggested that Mr. Comey stop investigating anyone, including suggesting that that Mr. Comey ‘let Flynn go.'”

Comey, on the other hand, emphatically differs with the Kasowitz version, stating that the President demanded a loyalty pledge from him that was then followed by what must have been a very awkward silence with Comey eventually pledging, “honest loyalty.”    

Of course Comey believes and has implied throughout his testimony that the whole reason Trump sought a loyalty pledge was to bludgeon the director into dropping a criminal investigation of Trump’s disgraced National Security Adviser Gen. Michael Flynn and to “take the pressure” off the Russia investigation. 

Comey also asserted that President’s odd request that Attorney General Jeff Sessions and the President’s chief of staff, Reince Priebus, leave the room before the President privately advised Comey that he “hoped” Comey would drop the Flynn investigation raised his hackles as “an investigator.”

Kasowitz’ s other assertions that Comey leaked “privileged” information are patent nonsense, as Comey did not have an attorney-client relationship with the President, the leaked memos were not classified, and the President explicitly waived executive privilege. (Executive privilege would be inapplicable here in any event.)

If prosecutors pursue the crime of obstruction of justice, it would create a “crime/fraud” exception to both executive and attorney/client privileges in the unlikely event that they were even relevant to the conversations in question.

The Kasowitz charges against Comey are going nowhere, though the Trump strategy has always been to punch back hard when attacked. The strategy may work when your opponent is weak and underfunded but not here.

Comey is unlikely to fold like a creditor of an old Trump Atlantic City casino.  Someone in the White House will undoubtedly be sensible enough to understand that a referral of potential criminal charges to an Inspector General, Congress and the Justice Department could spiral into a new special prosecutor appointment, new Congressional hearings and as well as a Grand Jury inquiry and trial with the President himself as the central witness in the entire case.

Such proceedings would paralyze an already crippled presidency and in all probability, would end in the complete exoneration of James Comey. 

So Mr. President, don’t go there.