In an interview on Good Morning America, White House Counselor Kellyanne Conway said that the decision had not been made whether the President would invoke executive privilege to bar former FBI Director James Comey from discussing his conversations with Trump regarding the Russian investigation. The invocation of executive privilege could raise some provocative and problematic issues for the White House. (For full disclosure, I taught Conway at GW law school).
Executive privilege is of course not referenced in the Constitution though it has been claimed in some form since the administration of George Washington. The Supreme Court laid out the foundation for the privilege in United States v. Nixon and it has been used extensively to deny information to both Congress and the courts in prior controversies. The Supreme Court treats the privilege as “qualified” and the strongest claim is made when a president can show that the disclosure would impair nationals security or the functioning of the Executive Branch.
This would fall on the weaker end of that spectrum of claims. Comey reportedly wants to testify that the President tried to pressure him to drop the investigation of Gen. Michael Flynn. Some have alleged that the effort constitutes a form of obstruction of justice, though I still have legal reservations about those claims. Moreover, Trump has spoken publicly about these conversations, undermining claims over the sensitivity of the information. Indeed, in his May 9 letter firing Comey, Trump wrote: “. . . I greatly appreciate you informing me, on three separate occasions, that I am not under investigation . . . ” Finally, Congress has a legitimate interest in the information as part of its oversight authority under Article I.
If Trump wants to invoke, we would expect a letter or memo to go to Congress detailing his claim — often from the White House counsel or with his support. In fairness to Trump, it should be noted that President Barack Obama asserted the privilege in 2012 to block Congress from seeing documents relating to an investigation into Fast and Furious. I was highly critical of the invocation.
Since Comey is now a private citizen, the invocation would open up equally problematic questions of how the White House could stop him. If Congress goes forward to ask the questions, Comey could elect to share the information. It is not clear what the Administration would do in the aftermath. If could seek a court order enjoining the testimony, but time is running out and there is not a lot of case law that could be marshaled on the point.
In other words, it would be a mess. Once again, I am not sure why the White House would let such a question linger given its damaging political optics of a president trying to silence a witness after repeatedly denying claims on those very conversations. If you are going to invoke privilege, you should do so. If you are not going to invoke, you should convey an eagerness to have a full and open discussion of the conversations.
I have previously criticized the apparently loose control over private lawyers invoking presidential privileges and immunities. This is a case where the White House needs to be clear and proactive on its position. If it choses to invoke, it will be a considerable risk on this weak foundation. Past presidents have been leery of taking such issues to court. Since executive privilege is implied under Article II, it can be severely limited by ill-conceived court challenges. We have already seen remarkably sloppy legal work by the White House in the first immigration order. This is far more serious in its implications for future presidents if they go forward with a casual invocation of executive privilege.