Could Trump use executive privilege to block Comey’s testimony?

Executive Branch

Former FBI Director James Comey

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White House spokesman Sean Spicer and adviser Kellyanne Conway gave noncommittal answers Friday when asked whether President Donald Trump will use executive privilege to block fired FBI director James Comey from testifying before the Senate Intelligence Committee on Thursday.

Conway told ABC News “the president will make that decision” on whether to invoke the privilege, while Spicer said that, “Obviously, it’s got to be reviewed.” USA Today, Reuters and TPM have stories on their comments.

If Trump does decide to invoke the privilege, would a court back him up? The New York Times and Reuters consider the question, while Harvard law professor Noah Feldman writes about the issue in a column for Bloomberg.

The justification for using executive privilege to block internal executive branch communications is that the president cannot be chilled in getting the advice he needs to carry out his constitutional functions, the Times explains. That is the type of privilege Trump could assert to bar Comey from testifying about whether Trump pressured him to drop his investigation into Russian influence.

The Justice Department could seek to assert the privilege seeking a restraining order in court. Courts might rule differently if the privilege is asserted to block congressional testimony than if it is used to block information in a criminal investigation. The criminal case would be governed by a 1974 Supreme Court decision requiring President Richard Nixon to turn over his tapes to Watergate prosecutors.

A judge considering the request would have to weigh the president’s interest in privacy against Congress’ need for the information, Ohio State law professor Peter Shane told the Times. Legal experts told Reuters that Trump would face an uphill climb in blocking Comey’s testimony.

One factor that might weigh in Congress’ favor is Trump’s tweets and comments about his conversations with Comey, who he fired on May 9.

“The claim of executive privilege requires that the communications in question be confidential,” Feldman writes. “Arguably, Trump has himself breached that confidentiality. It would be strange if he could then invoke privilege to block Comey from giving his version of events.”


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