Marc Kasowitz is reportedly no longer planning to file a complaint against James Comey for leaking.

Trump’s Lawyers Planned to Retaliate Against Comey for Leaking. Their Rationale for Deciding Against It Is Revealing.

Trump’s Lawyers Planned to Retaliate Against Comey for Leaking. Their Rationale for Deciding Against It Is Revealing.

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June 29 2017 12:03 PM

Trump’s Lawyers Planned to Retaliate Against Comey for Leaking. Their Rationale for Deciding Against It Is Revealing.

Trump's personal lawyer Marc Kasowitz.

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Earlier this month, multiple news outlets reported that the president’s personal lawyer Marc Kasowitz was planning to file a misconduct complaint against former FBI Director James Comey. This news came after Comey testified in front of the Senate Intelligence Committee that he’d leaked information to the press about a private conversation he’d had with Donald Trump while serving as FBI director. According to the reports, Kasowitz would be asking the Justice Department’s Office of the Inspector General to investigate Comey’s conduct, and he’d be doing so in a matter of days.

Leon Neyfakh Leon Neyfakh

Leon Neyfakh is a Slate staff writer.

The possibility that Comey would face retaliation from the Trump team prompted some chin-scratching among DOJ watchers: Was there any way he could actually get in trouble, given that there was nothing illegal about what he’d done and that he’d already been fired from his job? The notion seemed absurd on its face: Though Comey had been FBI director when he had his conversation with Trump, he was a private citizen by the time he leaked the memo in which he documented that conversation. To justify filing his complaint with the DOJ’s inspector general, Kasowitz would have to argue that DOJ had jurisdiction over its former employees even after they no longer worked there. On the other hand, the IG’s office does have a history of calling out misconduct by former employees—as recently as May 16, it had completed a report about a former U.S. attorney who had engaged in an extramarital affair with a subordinate while in office. If Comey had broken some internal Justice Department rule against sharing information with reporters, could he be the subject of an embarrassing (though probably toothless) report months or years down the line?


Predictably enough, this question has turned out to be purely academic. On Wednesday, Yahoo and Bloomberg News confirmed that Kasowitz would not be filing a complaint against Comey after all, at least for the time being. Bloomberg cited an anonymous source who explained that Kasowitz had decided to hold his fire as a “professional courtesy” to Robert Mueller, the special counsel in charge of the Russia investigation. According to a source who spoke to Yahoo, the filing of the complaint had been delayed “out of deference to Mueller to let him do his job,” and out of concern that it “might antagonize Mueller and potentially backfire on the president.”

There’s an argument to be made that we shouldn’t spend any time pondering the administration’s lack of follow-through. The threat of an IG complaint was nothing more than headline-grabbing saber-rattling, and the retreat was just the latest example of Trump and his people failing to back up their tough talk—the equivalent of a bully giving up in the middle of a fight and blaming it on his heart problems. But the Trump team’s stated rationale for not following through with the IG complaint is revealing. In framing it as a show of respect for Mueller, they have both insulted him and exposed their own blinkered, petty sense of right and wrong.

Mueller is known inside and outside the FBI as an apolitical operator—a man who doesn’t let personal or partisan considerations influence his thinking. The implication that he’d respond to an IG complaint against Comey by going after Trump more zealously is that Mueller would set aside his integrity to protect his friend—Mueller and Comey worked together in the George W. Bush administration—and punish the president.

Trump is a transactional person, someone who believes it’s proper to favor those who do him good turns and punish those who get in his way. (Just Thursday morning, White House spokeswoman Sarah Huckabee Sanders reminded Fox News, “This is a president who fights fire with fire … [he] isn’t going to sit back and not push back.”) It’s a worldview that doesn’t allow for the possibility that people can make choices that aren’t informed by the same corrupt calculus—that someone like Mueller could be uninterested in hitting back just because he feels personally affronted. It also doesn’t allow for the possibility that Mueller would have more serious things to think about than some frivolous IG complaint.

We don’t know who it was that talked to Yahoo and Bloomberg about Kasowitz’s decision not to file the complaint. But if what they said is an accurate reflection of how Trump’s lawyers are thinking about their client’s predicament, it suggests they still have no sense of who and what they’re up against.