When the news broke that former FBI Director James Comey was about to testify before the Senate Intelligence Committee, it’s safe to say that a lot of people in the White House from Donald Trump on down were quaking in their boots. After all, multiple sources have reported that Comey is due to tell the Senate that Trump tried to browbeat him into stopping the investigation into Russia’s attempt to hack the election.
Almost as soon as word got out that Comey was about to testify, speculation mounted that Trump would kibosh it by asserting executive privilege. However, on Friday, The New York Times reported that in all likelihood, Trump won’t go that route. And in all likelihood, it’s because legally, he cannot.
On Sunday’s edition of ABC’s “This Week,” ABC News chief White House correspondent Jonathan Karl corroborated the Old Grey Lady’s reporting, and said that the White House has no intention of blocking Comey’s testimony. Watch here.
.@jonkarl: "No plan" to invoke executive privilege to block Comey testimony; White House aides believe "politically it would be a disaster." pic.twitter.com/GhVdhlfvPS
— This Week (@ThisWeekABC) June 4, 2017
Later, host George Stephanopoulos brought on ABC chief legal affairs analyst Dan Abrams to discuss this new development. Abrams contended that any attempt to stop Comey from testifying would not just be a political disaster for Trump, but a legal one as well.
From where Abrams is sitting, there are three reasons why Trump has a “very weak” case for using executive privilege in this matter. First of all, longstanding Supreme Court precedent holds that a president can’t use executive privilege to cover up alleged misconduct. That precedent dates to the Watergate era, when the Supreme Court unanimously told Richard Nixon that he could not use executive privilege to block the release of tape recordings potentially related to the break-in and cover-up.
In this case, we’re talking about the prospect that Trump tried to pressure Comey into dropping the investigation. At best, it would be grossly inappropriate and violate longstanding rules against White House officials attempting to discuss ongoing investigations with Justice Department officials. At worst, it could amount to obstruction of justice.
Abrams also argued that a confidential conversation is no longer confidential “when the president tweets about it (and) talks about it in interviews.” Indeed, as early as May 15, a number of legal experts agreed that Trump may have effectively talked and tweeted himself out of using executive privilege against Comey. According to Abrams, the legal term for this is “the argument of waiver.”
Even without these factors to consider, Abrams believes that Trump lost any authority to keep Comey from testifying the moment that termination letter was released. Abrams said that theoretically, if Comey were still working for the government, Trump could order him not to testify. However, since Trump kicked Comey off the government payroll, “he doesn’t have that authority or power over James Comey anymore.”
From my non-lawyer’s perspective, either one of those reasons would be enough to derail any 11th-hour attempt to block Comey’s testimony. For instance, even if Comey were still a government employee, you can make a convincing argument that executive privilege still wouldn’t apply, since Trump effectively waived that privilege with his infamous warning that there may be tapes. All together? Trump would be out of his mind to stop Comey now.
Trump may have effectively talked his travel ban out of existence. Now it looks like he may have tweeted himself out of any plan to silence the man who could potentially trigger his impeachment.
(featured image courtesy Andrew Harrer, pool photographer)
