Press Secretary Sean Spicer has indicated that the Trump Administration is considering whether to attempt to use executive privilege to prevent former FBI Director James Comey from testifying before the Senate Intelligence Committee. When asked at a press conference on Friday whether the administration would invoke executive privilege, Spicer said that the matter “has got to be reviewed” according to reports by the Washington Examiner.
A report in Bloomberg said that a second White House official said that the matter was under review.
According to Reuters, most presidents have used some form of executive privilege even though the term only dates back to the 1950s. In United States vs. Nixon (1974), the Supreme Court ruled that while presidents do have a right to confidentiality in executive branch communications, especially with regard to military and diplomatic affairs, executive privilege is not unlimited. “The fundamental demands of due process of law in the fair administration of justice” outweighed the president’s right to confidentiality.
If President Trump did attempt to prevent Comey from testifying before Congress, the move would almost certainly make the president look like he was trying to hide something. Comey allegedly wrote a memo after a meeting with the president that described how Trump asked him to end the investigation of former National Security Advisor Michael Flynn. Trump is also alleged to have tied Comey’s dismissal to the FBI’s investigation of Russian interference in the election in a meeting with Russian diplomats and again in a television interview with NBC News. Members of the Senate Intelligence Committee are certain to ask Comey about his conversations with the president regarding the Russia investigation.
If the president decides to invoke executive privilege, the move will almost certainly be challenged in court. Most experts believe that the case would be another uphill battle for an administration that has repeatedly lost judgments on Mr. Trump’s travel ban Executive Order. Nevertheless, legal proceedings could delay the Comey testimony indefinitely.
If President Trump does decide to invoke executive privilege, the obvious question will be why he doesn’t want Comey tell his story to the country. In a tweet on May 12, a few days after the firing, Trump suggested that he might have taped their conversations and could release the audio if Comey talked to the press.
Comey’s testimony is currently scheduled for Thursday, June 8.