According to the White House, President Donald Trump will not use his executive privilege to prevent former FBI Director James Comey from testifying before Congress on Thursday.
“The President’s power to assert executive privilege is well-established. However, in order to facilitate a swift and thorough examination of the facts sought by the Senate Intelligence Committee, President Trump will not assert executive privilege regarding James Comey’s scheduled testimony,” said spokeswoman Sarah Huckabee Sanders.
Executive privilege is a legal document that allows presidents to prevent government employees from sharing information. It dates back to the 1974 Supreme Court case US vs. Nixon.
However, Trump may not have been able to use his executive privilege in Comey’s case. According to the Supreme Court, the confidentiality presidents have in communications with their advisers is not an absolute privilege. Federal courts have prevented presidents from using this privilege in the past.
Trump also would have had a weak case had he tried to use his executive privilege; he himself has publicly discussed the private conversations he had with Comey.
For instance, on May 12, Trump tweeted “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!”
According to Harvard Law professor Noah Feldman, “the claim of executive privilege requires that the communications in question be confidential. Arguably, Trump has himself breached that confidentiality.”
Nonetheless, if Trump had succeeded in using his executive privilege, it may have seemed like he was covering up information about the FBI’s Russia investigation.
On May 9 Trump fired Comey at the recommendation of the deputy attorney general, citing Comey’s mishandling of the investigation into Hillary Clinton’s emails last year. However, Trump later stated that he had already decided to fire Comey, despite any recommendations.
Trump’s firing of Comey immediately drew suspicions because Comey was leading an FBI investigation concerning Russia. American intelligence currently suspects that Russia tampered with the 2016 election and that Russian intelligence had ties to the Trump campaign.
This week Comey will testify before the Senate Intelligence Committee followed by a closed session. The testimony is part of the committee’s investigation into Russia.
Comey is expected to talk about his conversations with Trump, specifically those in which Trump asked him to end the investigation into former national security advisor Michael Flynn, who was fired for not disclosing conversations with Russian officials.
However, it is unclear how much Comey will reveal about his conversations with Trump or his memos, in which he wrote about Trump asking him to stop the Flynn investigation.
Comey wrote a memo for almost every phone call and meeting he had with Trump, said sources close to Comey. He was reportedly concerned that Trump was not recognizing the traditional independence the FBI had from the White House.
In addition to the Flynn investigation, Trump invited Comey to dinner, just days after his inauguration. The president reportedly asked Comey for his loyalty several times, which Comey refused to give. Trump denied that he did this; however, he stated that it would not have been wrong if he did.
If the behavior described by Comey’s memos is true, the President could be accused of obstruction of justice. Consequently, former FBI Director Robert Mueller, who is now in charge of the FBI’s Russia probe, may not want Comey to fully disclose his conversations with Trump, as it could impede the FBI’s Russia investigation.
Nonetheless, Mueller recently cleared Comey to testify, and, according to NBC News, Comey is eager to give his testimony.
During his testimony, Republican lawmakers plan to challenge Comey’s allegations towards Trump. It is questionable why Comey did not act at the time he wrote his memos if he considered the president’s behavior to be improper.
With both sides at hand, Comey’s testimony is expected to be explosive and will be watched closely throughout Washington.
