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Comey's Orchestrated Release Of His Memos Raises Legal Questions

AUDIE CORNISH, HOST:

We're going to look now at the significance of one of James Comey's big revelations yesterday.

(SOUNDBITE OF ARCHIVED RECORDING)

JAMES COMEY: The president tweeted on Friday after I got fired that I better hope there's not tapes. I woke up in the middle of the night on Monday night because it didn't dawn on me originally that there might be corroboration for our conversation, there might be a tape. And my judgment was I needed to get that out into the public square. And so I asked a friend of mine to share the content of the memo with a reporter. I didn't do it myself for a variety of reasons. But I asked him to because I thought that might prompt the appointment of a special council.

CORNISH: President Trump's lawyer, Marc Kasowitz, later condemned Comey as one of a number of government employees who wants to undermine the Trump White House by leaking classified and privileged information to the media. So did James Comey break the law? We're joined now by Bobby Chesney. He's a professor at the University of Texas School of Law in Austin. Welcome to the program.

ROBERT CHESNEY: Thanks for having me.

CORNISH: So there seem to be a variety of opinions, legal and not, (laughter) about this today.

CHESNEY: (Laughter) Yes, indeed.

CORNISH: And some point out that these memos could be viewed as government material and potential evidence, looking at Comey's own description, talking about using an FBI computer - right? - to create these memos. Do they have a point?

CHESNEY: Not if they're claiming that it's a crime. It's not a crime to disclose the contents of conversations with the president, at least so long as those are not conversations involving classified information or national defense information. And the testimony from Jim Comey was that he was at pains to write his memorandum, the one that's an issue here, with that distinction in mind. It's not classified information. You can contrast this with the story this past week of this woman in Georgia, Reality Winner, who did allegedly knowingly take a classified document from the NSA, gave it to a journalist.

CORNISH: So is there such thing as a legally defensible leak?

CHESNEY: You've got to draw a distinction between things that are criminal and things that are right, right? So you might have the view that the FBI director or any other government employee simply should not be doing this, but that doesn't make it criminal. And so suggestions that Jim Comey may have committed a crime here seem very misplaced.

CORNISH: At the same time, we hear this phrase leaking and leakers. It's derogatory, usually, the way it's used. But is it in the eye of the beholder?

CHESNEY: Most leakers, of course, think that what they're doing's justified in some fashion. It's the right thing to do. That's a dangerous road to go down. It's the case with Edward Snowden, no doubt, that he thought he was doing the right thing, but a lot of people who dislike what he did maybe like what another person does. And it can be in the eye of the beholder. And that's - it's a dangerous road to go down.

CORNISH: How have these - this administration and the last approached the issue of leaks?

CHESNEY: You know, interestingly, the Obama administration has taken a lot of lumps for having been apparently more aggressive than past administrations when it comes to trying to suppress leaks through criminal prosecutions or at least criminal investigations. And the numbers tend to support that, that there was a level of activity and a desire to try to stop leaking that really hadn't been matched previously. And yet it's also true that at the same time, we've never had more leaking. It's really extraordinary. I mean, we all seem to find out about just about everything soon after it happens.

And so the reality is we live in a time where it's both never been tougher from the perspective of the government potentially coming after you, but also never been more possible to find outlets that'll publish what you have to say. And then you layer in on top of that an environment where there's such profound distrust not just outside the government but even within the government, and you have a recipe for loads and loads of leaking.

And at a certain point, it kind of gets a momentum of its own. It kind of becomes normalized. It becomes familiar. So I'm not sure I would say it's a golden age of leaks because there is this pressure to crack down. It's more complex than that. But the leaks aren't going away.

CORNISH: Bobby Chesney is a professor at the University of Texas School of Law in Austin. Thank you for speaking with us.

CHESNEY: Thank you. Transcript provided by NPR, Copyright NPR.