As the White House Scrambles to try to block former FBI Director James Comey’s highly anticipated testimony before Congress next week about his conversations with President Trump, a group of law scholars just revealed that, in this case, Donald Trump cannot invoke his presidential powers in an attempt to stop his fired FBI chief from speaking.
Comey is expected to reveal details of his private conversations with Trump, including one in which the president reportedly asked him to stop an investigation into disgraced national security adviser Michael Flynn and another in which Trump asked for the FBI Director’s loyalty.
The former FBI director is said to have kept detailed notes about his talks with Trump and revealing their contents could prove damaging to the president.
The White House on Friday refused to rule out the possibility of Trump invoking his presidential powers to block Comey’s hearing.
But legal experts warn that if Trump attempts to claim privilege, such a move could spark major backlash and would be unlikely to succeed, reported CNN.
The report states that “any assertion of privilege Trump makes on the grounds of national security or confidentiality would be undermined by the fact that Trump has spoken publicly spoken – in interviews, tweets and in front of reporters – about his talks with Comey.”
That’s not the only obstacle to Trump using privilege to block Comey’s testimony. Trump faces accusations that he tried to obstruct the FBI’s Russia investigation by pressuring Comey to drop his probe of Flynn, something Trump abruptly denied during a press conference last month.
“Several cases have held over time that the executive privilege provision must not be used to cover up misconduct,” said Andy Wright, a professor at Savannah Law School who served as an associate White House counsel to former President Barack Obama.
The move is typically used to block current employees from speaking out or releasing information. Because Comey is no longer a government employee, it’s not clear whether an executive privilege claim would be enforceable.
Trump could also open himself up to legal challenges. Being worried about potentially embarrassing testimony is not a sufficient basis to invoke executive privilege.
Trying to stop Comey from testifying by using executive privilege will almost certainly fail. If Trump attempts to stop the former FBI Director from testifying about their discussions relating to the Flynn investigation, Comey should just ignore him and do it anyway. It’s highly unlikely a court would prevent Comey, who is now a private citizen and no longer a government employee, from talking.
But the White House is extremely concerned about what Comey is going to say, and the administration is trying every trick in the book to stop Comey from publicly humiliating the erratic President.
Asserting executive privilege in this situation would be a desperate act, but we have a desperate man in the White House right now.