"leaker" when referring to Comey's memo given to the press via a friend (Columbia law professor btw). It wasn't a "leak" is what I've been saying and boy I was sure glad to find this article as to why it really isn't.
Tom McCarthy, The Guardian, Jun 9, 2017
"The president called Comey 'a leaker', but is there any legal case against him?"
Comey admits he indirectly passed a personal memo to the media, but legal experts say Trump is misusing the term and case appears extremely thin.
Donald Trump lawyers to file complaint against ‘leaker’ James Comey.
When Donald Trump gets in a fight, he sues. “SEE YOU IN COURT,” he tweeted in February, after his first travel ban was blocked. It is a pattern established over many decades. So the president’s plan to file a legal complaint against the former FBI director James Comey, who on Thursday called him a liar, is business as usual.
But in this particular fight, the president might want to check his impulse to sue. The supposed case against the former federal prosecutor appears to be extremely thin, legal experts say. And suing could actually draw the president himself further into legal trouble.
Trump’s argument, somewhat confusingly articulated by his lawyer on Thursday, is that Comey violated the law by “leaking” sensitive material to the press. “WOW, Comey is a leaker!” Trump tweeted Friday.
Trump’s lawyer Marc Kasowitz phrased it differently, accusing Comey of “unilaterally and surreptitiously” making “unauthorised disclosures to the press of privileged communications with the president”.
Those words do not cohere as a legal argument of intimidating precision and strength, said the Fordham law school professor Jed Shugerman, author of the Shugerblog commentary site.
“This should not be called a leak,” Shugerman said of Comey’s decision to pass a personal memo to the media through a friend. “The word ‘leak’ refers to revealing secret and classified information. It is a misuse of the term ‘leak’ to apply that in any way to what Comey described in his testimony.”
Shugerman pointed out that Comey described in his testimony on Thursday how he had taken care not to put classified material in the memo in question. The memo recounted how Trump had directed Comey, as Comey understood it, to end an investigation of the former national security adviser Michael Flynn.
Trump’s legal team plans to file a complaint against Comey with the office of the inspector general for the Department of Justice (DoJ) early next week, according to a source close to the legal team who did not want to speak on the record before the complaint was filed.
Richard Painter, a White House ethics counsel under George W Bush, tweeted that the move could constitute obstruction of justice by the president and “witness intimidation”, since Comey is a witness in any potential case involving the president.
“Trying to get DoJ to go after Comey – a material witness – over ‘leak’ is yet more obstruction of justice,” Painter tweeted.
Trump’s incorrect reference to the Comey memo as a “leak” does not necessarily mean that releasing the memo was lawful, Shugerman cautioned, pointing to seven conceivable scenarios under which Comey’s release of the memo could present a legal hazard.
[However], under none of the seven scenarios did Comey appear to be much in danger of transgression. Here are the relevant categories identified by Shugerman, with his analysis in quotations: ■
Illegal leak: “It’s not an illegal leak, because as Comey clarified in his testimony, he made sure to avoid any question of whether it would be classified or should have been classified or reveal classified information or other secret information. It’s not classified, so it’s not a leak.”
Privilege: “A very ambiguous assertion of privilege without actually identifying the privilege itself. If what they’re asserting is executive privilege, it’s pretty clearly been waived. They had notice and opportunity to invoke executive privilege before his testimony. Trump referred to those conversations himself in his letter on Comey’s firing. And executive privilege is not absolute – it must be balanced with public interest.”
An official FBI document: If Comey’s memo was a so-called Field 302 form, it may be subject to rules for non-release. But the memo was not written as part of a formal investigation, and “if he was trying to make sure that he was preserving a memo for his own use, he would obviously not create a form”.
Non-disclosure agreement: “It’s certainly possible that there’s a non-disclosure agreement within the FBI. But violating a non-disclosure agreement is not necessarily criminal. [And] as far as we’re aware,” there isn’t one. Federal law governing the handling of public property or records: “It’s quite a stretch to say that just because Comey wrote notes on an FBI government computer, that those notes become an official record … So it’s not an official record, and it’s not larceny of property or conversion of property for personal benefit or gain.”
Internal FBI rules: “I’ve not seen anyone cite a particular internal FBI rule that would have made Comey’s behavior illegal or directly contrary to FBI policy.”
Privacy act: “It’s not an official record, and does not refer to otherwise private matters,” so no. "
