Press Secretary Sean Spicer has indicated that the Trump
Administration is considering whether to attempt to use executive privilege to
prevent former FBI Director James Comey from testifying
before the Senate Intelligence Committee. When asked at a press conference
on Friday whether the administration would invoke executive privilege, Spicer
said that the matter “has got to be reviewed” according to reports by the Washington
Examiner.
A report in Bloomberg
said that a second White House official said that the matter was under review.
According to Reuters,
most presidents have used some form of executive privilege even though the term
only dates back to the 1950s. In United
States vs. Nixon (1974), the Supreme Court ruled that while
presidents do have a right to confidentiality in executive branch
communications, especially with regard to military and diplomatic affairs,
executive privilege is not unlimited. “The fundamental demands of due process
of law in the fair administration of justice” outweighed the president’s right
to confidentiality.
If President Trump did attempt to prevent Comey from
testifying before Congress, the move would almost certainly make the president
look like he was trying to hide something. Comey allegedly wrote a memo after a
meeting with the president that described how Trump asked him to end the investigation
of former National Security Advisor Michael Flynn. Trump is also alleged to
have tied Comey’s dismissal to the FBI’s investigation of Russian interference
in the election in a meeting
with Russian diplomats and again in a television interview
with NBC News. Members of the Senate Intelligence Committee are certain to
ask Comey about his conversations with the president regarding the Russia
investigation.
If the president decides to invoke executive privilege, the
move will almost certainly be challenged in court. Most experts believe that
the case would be another uphill battle for an administration that has
repeatedly lost judgments on Mr. Trump’s travel ban Executive Order. Nevertheless,
legal proceedings could delay the Comey testimony indefinitely.
If President Trump does decide to invoke executive
privilege, the obvious question will be why he doesn’t want Comey tell his
story to the country. In a tweet
on May 12, a few days after the firing, Trump suggested that he might have
taped their conversations and could release the audio if Comey talked to the
press.
Comey’s testimony is currently scheduled for Thursday, June
8.
Originally published
on The Resurgent
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