Is The White House Gearing Up For A Privilege Fight Over Comey Testimony? Kellyanne Conway Says Trump Has Not Decided Whether To Invoke Executive Privilege

624246174001_5322739003001_5322726507001-vsIn 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.

46 thoughts on “Is The White House Gearing Up For A Privilege Fight Over Comey Testimony? Kellyanne Conway Says Trump Has Not Decided Whether To Invoke Executive Privilege”

  1. How exactly can Trump “forbid” Comey from testifying? Comey does not work for the administration. Would Trump try to arrest Comey **before** he can testify? What would the charge be? Or after any such testimony? If Trump does arrest Comey and try him, I can’t imagine getting a conviction.

  2. A lot of ugly photos here. Nothing is worse than that Kathy Griffin itchBay.

  3. Excellent post as usual Jill. the peons suffer as the elites play their games.

      1. Yes, Roscoe – I do a daily dose of Dore to keep my sanity =) Love that guy!

  4. This is a good description of the situation in the US. It applies to the Comey – Trump throw down here:

    The struggle between the Presidential oligarch and the Opposition oligarchs has profound consequences for their factions and for the American people. Wars and markets, pursued by sections of the Oligarchs, have led opposing sections to seek control over the means of political manipulation (media and threats of judicial action).

    Intense political competition and open political debate have nothing to do with ‘democracy’ as it now exists in the United States.

    In fact, it is the absence of real democracy, which permits the oligarchs to engage in serious . The marginalized, de-politicized electorate are incapable of taking advantage of the conflict to advance their own interests.

    What the ‘Conflict’ is Not About

    The ‘life and death’ inter-oligarchical fight is not about peace!

    None of the factions of the oligarchy, engaged in this struggle, is aligned with democratic or independent governments.

    Neither side seeks to democratize the American electoral process or to dismantle the grotesque police state apparatus.

    Neither side has any commitment to a ‘new deal’ for American workers and employees.

    Neither is interested in policy changes needed to address the steady erosion of living standards or the unprecedented increase in ‘premature’ mortality among the working and rural classes.

    Despite these similarities in their main focus of maintaining oligarchical power and policies against the interests of the larger population, there are deep divisions over the content and direction of the presidential regime and the permanent state apparatus.”

    http://www.globalresearch.ca/intra-elite-warfare-oligarchs-succeed-only-the-people-suffer/5593070

  5. Do we allow the executive branch too much power, too much cover and too many protections. Is the executive branch too powerful?

  6. The very ineligible Obama hid Susan Rice, of “Benghazi Lie Tour” fame, in the executive branch as National Security Advisor, where she passed her time playing “unmasking” games, to preclude any damaging testimony she might be compelled to provide.

    1. Probably, she unmasked Flynn. Probably a good catch on her part considering the information that was coming in on him from the Russians and the Turks.

      1. How did we miss the fact that “unmasking” for political purposes is a crime committed by

        the beneficiary of welfare and affirmative action, Susan Rice?

        Mz. Rice should be in Martha Stewart’s cell – along with Hillary,

        the very ineligible, first half-white, son-of-a-foreign citizen, Obongo, Lerner, Holder et al.

  7. Trump doesn’t seem to have a case of executive immunity. Comey will need to explain why he said, under oath, that he wasn’t influence and now saying, under oath again, that he was. Congress should ask him which of his statements under oath was correct and why he changed his mind. They should ask him to document what he is saying.

    Unfortunately, I don’t think Congress will ask these questions (maybe one will) and insist on documentation. This strikes me as more deep state BS. For that, I am sad. We need people who love their nation to right the wrongs within the executive and congressional branch by speaking out and being honorable. I just don’t think those people are around any longer.

  8. Just out of curiosity, what courses did Ms. Conway take from Mr. Turley? (Humorous replies invited)

      1. I think it was a course on “How to Bleach Your Hair Blond, and Do a Poor Job of It.” This was actually offered by the Fox University Extension School.

  9. Did Comey have a legal obligation to report potential obstruction? And if he did, and he didn’t report it, is he personally in any way on the hook?

    If yes, I assume the Fifth could be invoked during testimony.

  10. Who in their right mind believes anything Conway or Trump says about anything? Of course that’s a bit of a oxymoron because if you do believe what Conway or Trump said, you are not in your right mind.

  11. If the investigations by Congress produce anytning they see ‘should’ be brought to the attention of the Special Counsel they ‘should’ pass it on immediately. It wouldn’t hurt if the Special Counsel assigns one of his staff to sit in the back and quietly monitor. That removes all potential problem areas.

    Back to the gibberish. from programmers of the left’s collective which by definition and regardless of he mulitple names used are for sure always REJECTED /

  12. I can see it now, ignoring White House Counsel, his own personal attorney, and trying to defend his conversations he had with FBI Comey, via his Twitter account at real Donald Trump — ugh – I think even Nixon would not have retained a twitter defense over Legal eagles. (But then, The Donald wouldn’t be The Donald.) Winning the Presidency is also reinforcing for him the notion that some of the campaign rhetoric he got away with back then, is now translating into (in his own mind) the Rightness of his opinions – as he sits there, late at night, at his desk, in the Oval room, pondering over his newest word into the English Dictionary.

  13. I don’t think he will invoke the privilege, but I also think Comey will disappoint a lot of people with his testimony. He just may refuse to answer by citing lawyer-client privilege himself, as well as “national security” on other questions. He has a very personal, some would say idiosyncratic view of what is legally binding.

    1. “9/11 WAS AN INSIDE JOB”

      The official U.S. Government & Media 9/11 story is that 2 NYC towers were brought down by 2 airplanes
      This is a total LIE !
      The Truth is that 3 NYC SKYSCRAPERS WERE DESTROYED BY CONTROLLED DEMOLITION ON 9/11.
      In the following video 2874 Architects and Engineers prove the U.S. Government & Media are Lying about 9/11.
      The U.S. Government & Media are complicit in the murders of 9/11.
      Christopher Bollyn: If the government and media are lying to us about 9/11, it means they are controlled by the same people who carried out 9/11.
      Our enemy does not want you to know about the 3rd building, WTC 7. It was not hit by a plane.
      This issue exposes the wide and deep corruption of the governments, courts and media.

      https://youtu.be/kQ2iVymP7hA

      “ISRAEL DID 9/11”

      Former Director of Studies, Professor at U.S. Army War College Dr. Alan Sabrosky;
      “Israel did 9/11. It is 100% certain that 9/11 was a Mossad operation period.”
      The 9/11 Commission Report is a 571-Page Zionist Lie
      The 9/11 Report fails to mention the total collapse of 47-story steel-framed skyscraper Building 7 at 5:20 on the day of the attack.
      The U.S. military knows Israel did 9/11.

      https://youtu.be/3VIhWUD9awM

          1. Yo P! Dig deep on this cat: Ezra Cohen-Watnick

            Talk about some Israeli interests being served.

            Funny thing is his wife worked at a big DC PR firm that did public relations for Russia.

            Stay thirsty my friend.

    2. What is a ‘Zionist Liar”? Did you mis speak and mean Lionist Czar?

  14. What should be explored here are the reasons for bending and breaking the rules. With Fast and Furious Obama broke or bent a rule, depending on your opinion. However, in blocking exposure to the program he very well could have protected agents and others, kept the program as secret as was possible at the time, and provided a basis for continuing the fight against the cartels. However flawed the program it was based in part on secrecy. What Trump is doing is entirely for his own benefit, to keep Comey from testifying that he obstructed justice to mask his ‘kinglike’ persona.

  15. I think it is too late in the game for executive privilege. However, he might fall under some top secret clearances that would prevent him from giving the testimony in public. That could get dicey. I don’t trust Comey anyway. He is a disgruntled fired employee trying to injure his former employer.

    1. That’s a very funny explanation of Comey’s desire to testify under oath. Chances of it being true are less than zero. But I appreciate your zeal in trying to defend Mr. Trump.

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Res ipsa loquitur – The thing itself speaks
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