Laura Jarrett writes at cnn.com Can Trump block Comey from testifying? White House could try to invoke executive privilege.
“Trump hasn’t yet announced whether he will try to stop Comey from testifying next week”
Former FBI Director James Comey is set to testify before the Senate Intelligence Committee next Thursday, June 8th. Will Trump try to sabotage the investigation by stopping Comey from testifying? Will Trump invoke executive privilege to do so?
Former FBI Director James Comey will have the nation captivated next Thursday when he testifies before a Senate panel about the stunning accusations that President Donald Trump pressured him to end his investigation into his former national security adviser’s ties to Russia.
But can Trump stop Comey from talking?
“Executive privilege disappears when there is any reason to believe government misconduct occurred”
Legal experts, however, are skeptical the President could successfully invoke the privilege to muzzle Comey because Trump has already written a letter about their conversations, talked about them publicly and even tweeted about them.
In other words, they say, the President can’t use the privilege as a sword in one context and a shield in another.
Here is more on executive privilege.
The concept of executive privilege stems from idea that the President must be able to enjoy frank communications with Cabinet members and advisers. Dating back to 1974 in US v. Nixon, the US Supreme Court recognized the “President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.”
But the privilege isn’t “absolute” and the court has said it has limits – indeed, it can be overcome upon a proper showing of need for the evidence at issue in a criminal trial or grand jury proceedings, and the DC Circuit has held that the “privilege disappears altogether when there is any reason to believe government misconduct occurred.”
The problem for Trump trying to quiet Comey is the fact that he’s already opened the door to their conversations – arguably waiving a claim of executive privilege.
The President has written about three separate conversations he had with Comey about whether he was under investigation, he further elaborated on those conversations in a televised interview with NBC, and he tweeted about them.
Harvard Law Professor Noah Feldman doubts Trump has the strongest argument in light of these facts, but it will likely depend on the scope of the assertion.
“The claim of executive privilege requires that the communications in question be confidential. Arguably, Trump has himself breached that confidentiality. It would be strange if he could then invoke privilege to block Comey from giving his version of events,” Feldman told Bloomberg. “The exception would be any conversations that haven’t yet been made public, by Comey or by Trump, assuming such conversations exist. If they do, they might well still be protected by the privilege.”
But here’s a Scriberian wrinkle. There is enough out in the press already about the Trump/Comey conversations to cast doubt on the use of executive privilege. Since when does a request for loyalty contribute to “shaping policies and making decisions”? Since when does a president’s pressure on the FBI to end an investigation qualify for executive privilege? Invoking executive privilege just makes a large scale coverup look more plausible. And that takes us to …
The case for impeachment
John Nichols (The Nation) says It’s Time to Make the Case for Impeaching Trump. The president blatantly tried to block a federal investigation. That’s obstruction of justice.
The list of grievances fueling the “Impeach Trump Now” campaign may have started with complaints that this billionaire president is violating the Constitution’s emoluments clause—a concern highlighted by Congressional Progressive Caucus co-chair Mark Pocan when he warned in a February 2 floor speech that, should President Trump fail to address his potential conflicts of interest and continue to disregard demands for transparency, “We’ll have to take other actions, including legislative directives, resolutions of disapproval, and even explore the power of impeachment.” But that list of grievances has grown exponentially larger as this presidency has lurched from crisis to crisis.
After the president fired FBI director James Comey—in what Trump essentially admitted in a nationally televised interview was a blatant attempt to thwart the bureau’s investigation into the charges of Russian involvement with his campaign—Pocan said the “impeachment clock” had moved “an hour closer to midnight.” When it was revealed that Trump had confided to Russian officials after the Comey firing that “I faced great pressure because of Russia. That’s taken off,” the impeachment clock’s alarm sounded. According to Comey, Trump had requested that the FBI drop its investigation into former national-security adviser Michael Flynn and his ties to Russia. Those details now read like the elements of an article of impeachment for obstruction of justice. As Harvard Law School professor Laurence Tribe explained in a May 14 argument for impeachment, “This president has shown that he cannot be trusted to remain within the law, and our Constitution’s last resort for situations of that kind is to get the person out of office.”
Of course, House Speaker Paul Ryan disagreed—and as long as this relentless Republican partisan holds his fractious caucus together, he can thwart any efforts to hold Trump accountable. … Unfortunately, House minority leader Nancy Pelosi’s response was to tell impeachment-inclined Democrats to “curb their enthusiasm.”
… The founders may not have anticipated a rogue quite like Donald Trump winning the presidency when they crafted the impeachment power, but they did anticipate crises like this one. And they gave us the tools, as citizens acting through our elected representatives, to thwart the monarchical impulses of “elected despots.”
Impeachment is not a “constitutional crisis”; it is rather the cure for one. A failure to apply that cure, for reasons of caution or partisan calculation, is a form of political malpractice that ill serves the republic that not just presidents but members of Congress swear to defend.