Can President Donald Trump invoke executive privilege and block James Comey from testifying before the Senate Select Committee on Intelligence on June 8? A Sunday report suggests that, while he is leaning against doing so, the matter remains under discussion and he has yet to reach a decision. Yet there really isn’t anything to decide – executive privilege simply can’t apply here.
Executive privilege is a notorious Gordian knot that has yielded surprisingly few judicial decisions, because courts typically prefer that Congress and the president hash out such disputes themselves. Some have suggested the former FBI director’s testimony is necessary for Congress to fulfill its oversight responsibilities; others say Trump waived any privilege by blabbing about his meetings with Comey.
While these theories may help untangle the knot, there’s a way to slice it wide open: Comey can’t be restrained from testifying before the Committee because he’s now a private citizen who wants to talk.
Executive privilege is a shield against attempts by Congress and courts to pierce the executive branch’s defenses to gain access to testimony or documents. It’s rooted in the notion of separation of powers. As the Supreme Court noted when it held that President Richard Nixon could not refuse to turn over the Watergate tapes, executive privilege preserves “the supremacy of each branch within its own assigned area of constitutional duties.” The doctrine rests on a recognition that the president and subordinate officials require some confidentiality in order to operate effectively. Due to the paucity of judicial decisions and absence of relevant constitutional text, the scope of such confidentiality is hotly disputed between Congress and any administration, especially under divided government. (As an official in President Barack Obama’s administration, I experienced the great joy of squaring off with GOP congressional staff over numerous requests for documents and testimony.)
But once Comey left office and signaled a willingness to testify, this ceased to be about separation of powers. Congress isn’t trying to pry loose information. Rather, an ex-employee with a story to tell wants to tell it to Congress.
The fact that Comey wants to talk is just as important as the fact that he’s no longer in government. Executive privilege can be invoked to protect a reluctant former official from having to testify. This makes sense, because otherwise Congress could wait until an official stepped down and then force her to talk about matters that she couldn’t be commanded to discuss while serving. This is not hypothetical – in 2007, President George W. Bush invoked executive privilege in response to a House Judiciary Committee subpoena issued to former White House Counsel Harriet Miers.
Some have suggested that, because the privilege belongs to the president, it would be illogical to allow someone else to declare, unilaterally, that the privilege is no longer in effect. That’s how the attorney-client privilege works. Without the client’s consent, a lawyer may not reveal client confidences, even if the representation ended long ago – and even if the client is dead. This reflects a societal determination that it’s important to ensure that people can discuss sensitive matters with their lawyers without fear that their secrets may one day emerge.
In contrast, we have not, as a society, made any such judgment regarding communications with the president. Quite the opposite: tell-alls, or tell-somes, by former top officials are a hardy perennial, and occasionally reveal non-too-flattering conversations with the big boss. Yet no one suggests the president could sue to block their release or portions of their release. To be sure, it would be idiotic to do so, because such a suit would magnify the criticism many times over, and avoiding idiocy is a constraint that typically bound most presidents up until now.
But there’s another reason as well. As a society, see considerable value in learning what former officials have to say about the administration they served, even when – especially when – they reveal high-level discussions. Thus the extraordinary remedy of implicitly carving out an exception to the First Amendment — as with the attorney-client privilege — is not warranted here.
There’s also a very real procedural question that helps explain the merits. If Trump wanted to block Comey from testifying, how exactly would he do so? Typically, when a president invokes executive privilege, he instructs the official not to testify (or produce documents), and the official does so because (1) he doesn’t want to get fired for disobeying and (2) he’s delighted for an excuse to escape the congressional line of fire.
Trump can’t fire Comey twice. He could, in theory, sue for an injunction to prevent Comey from testifying. This would be an astonishing request, and he would almost surely be laughed out of court. A court would not enjoin Comey from testifying unless it could fathom a rationale that would also bar Comey from revealing the same information by writing a book, going on the Sunday shows, taking to Twitter or chatting at his local bagel shop. As a legal matter, all these venues are the same. And to impose such a gag order – a so-called “prior restraint” on speech – cannot be squared with First Amendment precedent.
A slicker approach would be for Trump to let Congress do his dirty work. Trump could make a grand show of invoking executive privilege and chiding Comey for his perfidy. Senator Richard Burr, the Republican chairman of the intelligence committee, could then announce that he’s cancelling the hearing because he’s shocked – shocked – that Comey would seek to testify about such matters. If that happens, Comey couldn’t force his way into the hearing room. No one has a right to testify before Congress, and if the committee deploys a cockamamie excuse to disinvite him, that’s life. Yet to cave to the president right after inviting Comey to testify would be a great act of cowardice for Senator Burr.
Comey would remain able to talk anywhere else, of course. But there’s no grander stage than a congressional hearing room, as Comey himself demonstrated in 2007. For 20 riveting minutes he silenced the normally garrulous Senate Judiciary Committee as he revealed the story of how he raced to Attorney General John Ashcroft’s hospital bed to prevent President Bush’s chief of staff and White House counsel from badgering a “very sick man” into re-authorizing a surveillance program that government lawyers had deemed illegal.
In retrospect, the 2007 testimony is also notable for what Comey – then as now a private citizen — did not discuss. He referenced certain conversations with the president following the hospital incident but declined to get into specifics. To be sure, if Comey intended to be as oblique this time around, he probably wouldn’t have agreed to testify in the first place.
But there may be elements of his conversations with Trump about which Comey chooses to remain silent. If so, it would be because of his own independent judgment that he owes the president – or maybe the presidency – some circumspection as to topics not directly relevant to the matter at hand. It would not be due to a principle that the sovereign can forever command the silence of his vassals. No one would begrudge Comey such deference. In a free society, this is how it works.