by Jennifer Jacobs
June 3, 2017
The White House is reviewing whether to invoke executive privilege to prevent former FBI Director James Comey from testifying before a congressional panel, an effort that may be an uphill legal battle for President Donald Trump.
Comey is scheduled to testify on June 8 before the Senate Intelligence Committee about his May 9 firing by Trump, first in public and then behind closed doors. The panel is investigating Russian meddling in the 2016 presidential election, and whether the president or his associates were involved.
The New York Times reported late Friday, citing unnamed administration officials, that Trump is unlikely to attempt to muzzle Comey. It cautioned that a final decision hadn’t been made by the president. Trump was spending part of Saturday at the Trump National Golf Club outside of Washington.
Asked Friday if the White House might invoke executive privilege, Press Secretary Sean Spicer told reporters: “That committee hearing was just noticed, and I think obviously it’s got to be reviewed.”
Spicer said he hadn’t spoken to the White House counsel, Don McGahn, about the matter.
A second White House official confirmed that the issue is under review.
To try to prevent Comey’s testimony, the White House could assert its right to prevent private deliberations from becoming public. Senators are expected to grill Comey -- in both an open and a closed panel -- on certain conversations with Trump or his aides, including one in which Trump reportedly asked Comey to drop an investigation into former White House National Security Adviser Michael Flynn’s dealings with Russia and Turkey.
Yet Trump may have weakened that argument by publicly disclosing elements of his conversations with Comey, including during an interview in May with NBC News and via Twitter, where the president said on May 12, “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!”
Key Question
Senators will almost certainly ask Comey whether Trump asked him to drop an Federal Bureau of Investigation probe into Flynn’s contacts with Russian government officials. Flynn was ousted Feb. 13, less than four weeks after Trump’s inauguration.
Trump asked Comey to drop the Flynn investigation, said a person who was given a copy of a memo Comey wrote about the conversation. Trump has denied trying to quash the probe.
Independent analysts have said they don’t believe Comey, now a private citizen, can be stopped if he is intent on telling his story.
“In the context of a criminal investigation, executive privilege has to give way,” said Saikrishna Prakash, who lectures on constitutional law and the separation of powers at the University of Virginia in Charlottesville. “How is the president going to stop Comey from testifying? He can’t put somebody in jail for violating executive privilege, and he can’t fire him, because he’s already been fired.”
Conceivably, the administration could seek a court injunction against Comey testifying, in which case a violation would constitute contempt of court. But a court likely would be reluctant to issue an injunction against testimony before Congress.
Trump adviser Kellyanne Conway said on ABC’s “Good Morning America” on Friday that Trump and his staff would be “watching with the rest of the world” to see what Comey has to say. But asked directly whether Trump would invoke executive privilege to block Comey from speaking, she said: “The president will make that decision.”
Protesters assembled in Washington and other U.S. cities on Saturday in a “March for Truth” to demand an independent investigation into alleged connections between Trump’s campaign and Russia. Separately, a group of supporters rallied near the White House to support the president’s decision to withdraw from the Paris climate accord.
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