The White House faces a dilemma over whether to try to block former FBI Director James Comey’s highly anticipated testimony before Congress next week about his conversations with President Trump.
By scheduling a hearing next Thursday, the Senate Intelligence Committee is forcing Trump to decide if he wants to invoke executive privilege in an attempt to stop his fired FBI chief from speaking.
Comey is expected to be asked about a number of his private conversations with Trump, including one in which the president reportedly asked him to ease off an investigation into ousted national security adviser Michael Flynn and another in which Trump allegedly asked for the law enforcement official'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 testimony.
“I have not spoken to counsel yet, I don’t know how they’re going to respond,” White House press secretary Sean Spicer told reporters.
In an interview earlier Friday with ABC News, senior Trump adviser Kellyanne Conway indicated the president would allow the former FBI director to appear, saying, “We’ll be watching with the rest of the world when Director Comey testifies.”
“It’s more important to have somebody testify under oath, frankly, than to have his friends and his former colleagues out there speaking to the media not under oath,” Conway said on “Good Morning America.”
But when pressed if Trump would invoke executive privilege, Conway said, “The president will make that decision.”
Trump ignored shouted questions from reporters at the White House about whether he would try to block Comey’s testimony.
Legal experts say Trump can attempt to claim privilege, but warn that such a move could spark major backlash and would be unlikely to succeed.
Executive privilege is a legal concept that allows presidents to withhold certain information from Congress or other government offices in the name of national security or protecting his right to have sensitive, private conversations with administration officials.
But experts say 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 – in interviews, tweets and in front of reporters – about his talks with Comey.
“He could certainly argue that those conversations are covered by executive privilege,” said Jack Quinn, a longtime Washington lobbyist and White House counsel to former President Bill ClintonWilliam (Bill) Jefferson ClintonMaxwell accuser testifies the British socialite was present when Epstein abuse occurred Epstein pilot testifies Maxwell was 'number two' in operation Federal judge changes his mind about stepping down, eliminating vacancy for Biden to fill MORE.
“The response from the Hill would be along the lines that he waived that privilege or it never existed because he communicated in such detail about it in public ways," Quinn said.
In his May 9 letter informing Comey of his firing, Trump wrote that the FBI director informed him “on three separate occasions, that I am not under investigation.”
The president doubled down on that claim two days later in an interview with NBC News.
“And during the phone call, he said it. And during the other phone call, he said it,” Trump asserted. “So, he said it once at dinner, and then he said it twice during phone calls."
“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 ObamaBarack Hussein ObamaPolitics must accept the reality of multiracial America and disavow racial backlash To empower parents, reinvent schools Senate race in Ohio poses crucial test for Democrats MORE.
Because Comey is no longer a government employee, it’s not clear whether an executive privilege claim would be enforceable.
The move is typically used to block current employees from speaking out or releasing information, or protect former employees who don’t want to testify about their time in government. For example, former President George W. Bush invoked privilege to deny congressional requests for former White House counsel Harriet Miers to testify as part of a probe into U.S. attorney firings.
But all indications are that Comey wants to testify publicly about his interactions with Trump. Now that he is out of government, the president has few tools to stop him from doing so, unless Comey or the Senate Intelligence Committee decide to honor a possible privilege assertion.
Trump could also open himself up to legal challenges if he decided to assert privilege.
Obama was sued by Congress for his 2012 decision to invoke his powers to block lawmakers from viewing documents related to the Fast and Furious gun-running scandal.
The claim of privilege itself, and the prospect of such a court battle, could produce an unwanted political firestorm for a White House that is looking to move past the Russia controversy.
But the probe is expected to last months, if not longer, and the White House might feel compelled to exert privilege to stop Comey from testifying in order to maintain leverage to use it in the future.
“You may be struck with a retort that, ‘you waived it,’” said Robert Ray, a former federal prosecutor and independent counsel in the Whitewater investigation. “It’s difficult to assert it later on if it he’s already testified to this stuff."
Ray added that the “overly-cautious thing to do would be to assert it at the first available opportunity.”
“The problem, of course, is that politically that’s a problem,” he said. “What the easy legal answer might be is not necessarily the answer you want to give in the political dynamic.”
–Katie Bo Williams contributed