As is so often the case with President Trump, his latest rant – threatening James Comey with “tapes” – largely speaks for itself. But there is one point that I think calls for some elaboration.
In case you haven’t seen it yet, this is the tweet I’m referring to.
James Comey better hope that there are no “tapes” of our conversations before he starts leaking to the press!
— Donald J. Trump (@realDonaldTrump) May 12, 2017
The President has frequently railed against “leaks” as crimes that must be investigated. That’s not accurate. Government officials who have access to classified information and release it to the public or to any unauthorized person are guilty of a crime. But simply speaking to the press, speaking out of school, as it were, or airing the President’s ‘secrets’, in the colloquial sense of the term, is no crime. It may be reason to fire someone, depending on what sort of job they hold and what protections they have. But it’s certainly not a crime.
James Comey is now a private citizen. His legal obligation to protect classified information is unaffected by his dismissal. But apart from classified information and apart from information about on-going criminal investigations which may be protected in other ways, Comey can say anything he wants. There’s nothing classified about what he said to the President or what the President said to him. He can say anything he wants.
Now, in practice, Comey is a very straight-laced kind of guy and is very bound up with what we might call his own myth, his own reputation for rectitude and independence. (In many ways, that is what I think led him to act unconscionably in the Clinton emails episode. But that’s a matter for another post.) So I don’t expect Comey to be showing up on a prime time interview with Oprah and getting misty-eyed about the loyalty dinner. But again, he can say anything he wants.
There’s a slight wrinkle to this as to whether the President could somehow assert executive privilege over Comey’s communications. I strongly suspect Trump wouldn’t make it far in court with that argument – here’s some discussion of that question. The bigger question in my mind is tied to the fact that this privilege is almost always raised – perhaps literally, always – in a testimonial context – testimony before Congress or in a legal proceeding. It’s not clear to me that the privilege can ever bar someone from simply taking a reporter’s call and answering their questions.
However that may be as a technical matter, I think it’s largely a moot question and likely not even legally relevant. What President Trump is doing here is openly threatening a private citizen against exercising the right to free speech that is his right as a citizen. We have seen for months that the President believes that the rather narrow obligations of confidentiality federal employees are bound by are somehow comparable to the kind of absolute confidences and loyalty he demanded and often got from employees as the head of a private company. But of course they are not.
One of the weirder things about Trump’s account of his dinner in which Comey was asking to ‘stay on’ is Trump’s tone and vocabulary in describing the encounter. The description has the feel of how the new owner’s of a company might meet with a company executive who was looking to keep his job. That is no doubt how Trump saw it. This conflation of the US government with a new company Trump has acquired runs like a golden seam through virtually everything that has happened in the last 100+ days.
The President is now publicly blackmailing Comey with “tapes” that are almost certainly fictitious. On the off chance they do exist and confirm Trump’s version of events rather than Comey’s they would probably land Trump in even more trouble since they would be taped evidence of the President seeking assurances of safety from an investigation and one of nation’s top law enforcement officers offering such assurances. That would be very bad for Comey but even worse for Trump. After all, Comey doesn’t have a job to lose. It’s purely a reputational matter for him now. As is so often the case, the President’s transgressions are hopelessly bound up with his nonsense and ridiculousness. We are all along for the ride.