President Donald Trump would seem to have a legal ace to play if he wants to stop James Comey from testifying or to prevent the release of the fired FBI director’s memos: executive privilege.
Except that Trump would probably lose, just as President Richard Nixon did when he tried to claim executive privilege in the Watergate case.
Nixon attempted to use it to resist a subpoena for White House audiotapes from then-special prosecutor Leon Jaworski. Nixon stepped down not long after the Supreme Court ruled against him in United States v. Nixon in 1974.
Asked whether Trump believes executive privilege applies to Comey’s planned testimony before Congress next month, as well as Comey’s memos about their conversations, White House spokesman Michael Short replied, “No comment.”
Attorneys who’ve worked at the White House and in Congress in the past told McClatchy that Trump could try to assert executive privilege to claim that his conversations with Comey should remain confidential, even from Congress or from the courts.
By doing so, he could stall or delay investigations now underway into Russian election meddling by forcing Congress or special counsel Robert Mueller to test the principle in court, the lawyers said. They predicted Trump would probably lose that legal battle eventually.
And while the lawyers battled, the political fallout would be severe.
Here’s a look at the issue:
What is executive privilege?
It’s a principle presidents cite to protect their conversations with aides and others from public scrutiny. It allows the president to withhold information or documents related to those conversations and to prevent current or former executive branch officials from testifying about them.
It’s not explicitly mentioned in the Constitution, although it’s understood to be implied by the constitutional separation of powers. The argument is that a president’s aides and close advisers need to maintain confidentiality to protect national security and so the president can be certain he’s receiving candid and honest advice.
Executive privilege applies only to the president’s communications while in office, not during the run-up to the election.
Have presidents cited executive privilege before?
George Washington set the precedent for executive privilege in 1796. He declined to provide the U.S. House of Representatives with documents related to the negotiation of a treaty with England.
The actual term came into use during the 1950s, when President Dwight D. Eisenhower used it to keep White House officials from testifying before Sen. Joseph McCarthy’s committee investigating communist influence in America.
In recent years, presidents from both parties have tried to assert executive privilege, without much success.
President Bill Clinton asserted executive privilege more than a dozen times as he struggled through scandals such as the Whitewater probe and his affair with intern Monica Lewinsky.
President George W. Bush invoked executive privilege six times, including once to keep his senior adviser Karl Rove from testifying before Congress about the firings of federal prosecutors for allegedly political reasons.
President Barack Obama invoked it when he wanted to withhold some documents from a congressional committee during the “Fast and Furious” federal gun-trafficking investigation.
How might Trump invoke executive privilege?
Trump has some tactical decisions to make about whether to fight it out over the Comey memorandum, said Charles Tiefer, who served as special deputy counsel on the House Iran-Contra committee, which investigated arms-for-hostages questions in the 1980s. Tiefer now works as a professor at University of Baltimore School of Law.
Trump could make a legal argument that Comey’s conversations with him, and any documents or audio recordings of those conversations, fall under executive privilege, Tiefer said.
“But Comey himself seems ready, willing and able to come up to congressional committees and testify in the open,” Tiefer said. “The optics look bad for the White House trying to muzzle Comey.”
Trump also could cite executive privilege to keep acting FBI Director Andrew McCabe from turning over the Comey memos or any other related documents or recordings to the congressional committees that have requested them.
In that case, McCabe would have to choose whether to defy such an order openly and be fired.
The White House could remove McCabe, but that would trigger a political firestorm, so the constraints really are political rather than legal, said Andy Wright, who served as associate counsel to the president under Obama.
Would it work?
Since Trump already has tweeted and spoken about his conversations with Comey, he might have waived his case for “privilege,” said the attorneys who spoke to McClatchy.
The two men weren’t discussing national security or military tactics and arguably Comey wasn’t in the position of giving Trump advice or counsel when the president spoke to him about the Russia investigation.
So Trump would face an uphill court battle that could drag out but isn’t likely to be decided in his favor. And the political price he’d pay would be huge.
“We used to ask in practice: Does it pass the red-face test? Would you be so embarrassed to raise this? I would think the president should be embarrassed to raise it in this circumstance, “ said Douglas Kmiec, head of the office of legal counsel for Presidents Ronald Reagan and George H.W. Bush. “It should never be sought to be applied in an area to obscure or hide criminal wrongdoing or the inquiry into it.”
A claim of executive privilege could even make a leak of the Comey memos more likely.
“I would hazard a guess that if they tried to exert executive privilege over the memos formally, that Congress would have them within 24 hours and (reporters) would probably too,” Wright said.