U.S. President Donald Trump would have faced legal and political risks had he tried to block former FBI director James Comey from testifying before the Senate committee investigating Russian meddling in the 2016 presidential election and whether Trump or his associates were involved. Would the law have allowed Trump to use executive privilege -- a presidential prerogative that has evolved over time -- to muzzle Comey? Trump’s own words and actions might have undermined his case. And does Trump want to invite comparisons to Richard Nixon by trying to hide damaging information? If he had tried to keep Comey from testifying, he was likely to lose and to look bad trying. But a fight over executive privilege still could emerge as the FBI investigation moves forward.
1. What is executive privilege?
It’s the limited right of the president and other executive branch officials to decline requests from Congress and the courts for information about their internal talks and deliberations. The privilege is supposed to provide a safe space for presidents to get candid advice from aides without the concern that they’ll later be called to testify. Privilege claims are strongest when they concern matters within the particular scope of the executive branch, such as national security, military affairs, law enforcement and foreign policy. They’re weakest when used to hide potential evidence of a crime.
2. Is executive privilege spelled out in the U.S. Constitution?
No, though U.S. presidents have claimed a right to confidentiality in the face of congressional demands virtually since the founding of the republic. The U.S. Supreme Court recognized executive privilege in 1974 in the end game to the Watergate scandal, when Nixon, claiming absolute protection of all presidential communications, tried to withhold audio tapes of Oval Office meetings and other evidence demanded by a special prosecutor. The Supreme Court rejected Nixon’s argument, 8-0, finding the need for evidence in a criminal trial overrode the president’s interest in maintaining White House secrecy. Just 16 days after the court’s ruling, on Aug. 9, 1974. Nixon resigned.
3. How have other presidents asserted executive privilege?
Even before it was called "executive privilege," presidents asserted the right to keep their discussions secret. George Washington refused to turn over papers relating to a treaty to the House of Representatives. Thomas Jefferson tried, unsuccessfully, to resist a document subpoena in Aaron Burr’s treason trial. More recently, Bill Clinton tried, without success, to shield aides from testifying in the Monica Lewinsky scandal. And Barack Obama was unable to block Congress from getting documents related to the Bureau of Alcohol, Tobacco and Firearms "Fast and Furious" operation.
4. How is Comey’s case different?
In most privilege fights, Congress wants information from members of the administration -- allies of the president, in other words, who share the desire to keep their work confidential (and could be fired if they defy the president). But Comey no longer works for Trump, and by most accounts they’re not terribly fond of each other. After firing Comey on May 9, Trump trashed him on TV and on Twitter, going so far as to call him "a real nut job" in front of Russia’s foreign minister and ambassador to the U.S. Meantime, Comey has made clear that he felt pressured by Trump to end the FBI investigation of Trump’s first national security adviser, Michael Flynn, and his dealings with Russia and Turkey.
5. Then how could Trump have blocked Comey’s testimony?
Maybe he couldn’t have. One possible path for White House lawyers was to ask a federal judge to issue a temporary restraining order requiring that Comey not testify or limiting his testimony to matters not covered by the privilege. But Cornell Law School professor Josh Chafetz and other experts say judges would be reluctant to block a witness from testifying before Congress. "As long as the information isn’t classified, discussing privileged information isn’t criminal," Chafetz said in an email. After all, nothing prevents Comey from spilling his story to the nearest gaggle of reporters, Chafetz said.
6. How did Trump weaken his own case?
He may have already waived executive privilege -- or at least left very little to protect -- by discussing Comey in numerous tweets and interviews. "The president already has written about and given interviews discussing his conversations with Comey," said Mark Rozell, dean of the Schar School of Policy and Government at George Mason University, the author of a book on executive privilege. "It becomes extremely hard to then come back and claim executive privilege over those discussions or to prevent him from talking about what they discussed."
7. How much help would Trump have gotten from the privilege?
Not much. Even if Trump had successfully derailed Comey’s Senate testimony, the Nixon case suggests it would be very unlikely he could block Comey from providing evidence to Robert Mueller, who’s been named special counsel to oversee the Russia investigation and any criminal prosecutions that may grow out of it.
The Reference Shelf
- The Congressional Research Service summarizes court cases that have stemmed from information access disputes between Congress and the executive branch.
- President Richard Nixon’s 1973 statement on his views of executive privilege.
- Text of the 1974 U.S. Supreme Court ruling in United States v. Nixon, in which the court concluded that executive privilege "cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice."
- Bloomberg View columnist Noah Feldman says that if Trump invokes privilege, be ready for "a wild legal ride."
- Lynn Cheney wrote a novel titled "Executive Privilege" in 1979. Her husband, former Vice President Dick Cheney, used executive privilege to shield his discussions with Enron Corp. executives in 2001.