The White House confirmed Friday that it is reviewing whether to invoke executive privilege to prevent former FBI Director James Comey from testifying before the Senate Intelligence Committee on Thursday.
Andy Wright, Just Security’s in-house expert on executive privilege, offered a few thoughts on how this could play out. It’s his view that it will be difficult for the president to stop Comey from testifying on executive privilege grounds.
President Donald Trump faces significant political (the appearance of obstruction), functional (no control of Comey), and legal (waiver as well as evidence of potential misconduct) challenges to an assertion of executive privilege.
If the president decided to try to assert executive privilege here, he would either need Sen. Richard Burr (R-N.C) or the Senate Intelligence Committee to honor it, Comey to honor it, or a court order restraining Comey from testifying.
But a court order would really exacerbate the appearance of obstruction here. It would also be almost wholly unprecedented. In the 1970s, the Executive Branch sought a preliminary injunction against AT&T’s response to a Senate subpoena on national security/executive privilege grounds. The D.C. Circuit ended up resolving it through court-supervised mediation to available separation of powers issues. I don’t think it’s a perfect analogy.
I also believe the subject matter is not covered by executive privilege because the communication itself is the alleged misconduct or potentially an act of obstruction.
For more on executive privilege issues, read Andy’s previous piece: “Sally Yates, Russia Testimony & Executive Privilege in the Trump Era”