President Trump’s decision not to invoke executive privilege and, thus, allow former FBI Director James B. Comey to testify before the Senate Intelligence Committee was moot before it was even announced.
Executive privilege never applied to the memorandums Comey wrote that reportedly document what Comey thought were Trump’s attempts to influence an FBI investigation into Michael T. Flynn possible connections to Russia. Nor did the privilege apply to Comey himself. Trump also likely waived the privilege when he publicly discussed the reasons behind his firing of Comey.
What Is Executive Privilege, Who & What Does It Cover
Presidents may invoke executive privilege in response to a letter from a congressional committee that requests either documents or witness testimony, or to a congressional subpoena. There are two different types of executive privilege – deliberative process privilege, which covers the executive branch decision making process, and presidential communications, which relates to documents.
The memorandum that Comey reportedly wrote about a meeting or meetings with the President arguably does not relate to decision making. Had the President claimed executive privilege, Congress would then look to its precedent and court rulings to determine whether the Comey memorandum were covered.
Comey Not Covered Under Communications Privilege
There are numerous federal cases – starting with the U.S. Supreme Court in United States v. Nixon – that address executive privilege as it applies to communications. A Congressional Research Service report on congressional oversight (widely considered the Oversight Bible among congressional staff) notes that “the presidential communications privilege may only be asserted with regard to documents or communications that are authored by or solicited and received by the President or presidential advisers with ‘operational proximity’ to the President. The courts [have] determined that ‘operational proximity’ included advisers within the White House, but did not include cabinet secretaries or cabinet employees.”
Comey reportedly took handwritten notes of his meeting or meetings with the President, and used them to write a memorandum to the file. Neither the President, nor apparently any White House advisers, solicited or received the memos. While the President appoints the FBI director and can fire him at will, the FBI Director is a cabinet employee. The FBI operates within the Department of Justice.
. . . Nor By Deliberative Process
The CRS report notes the deliberative process portion of executive privilege only applies to “the disclosure of executive branch documents and communications that are predecisional, meaning they are created prior to reaching the agency’s final decision, and deliberative, meaning they relate to the thought process of executive branch officials and are not purely factual.”
Deliberative process clearly relates to regulatory or other decisions by executive branch agencies. It likely does not cover a private conversation between a President and an FBI Director in which the chief executive reportedly asked the law enforcement official to go easy on a potential target of an investigation.
Trump Waived Executive Privilege
An argument can be made that President Trump, through his public comments and Tweets about the firing of Comey, has waived privilege. The minute a witness or participant opens their mouth about a subject, they risk a waiver of privilege. Ask Lois Lerner what happens when you make a statement after you invoke your Fifth Amendment right.
Some unnamed legal experts cited by the press contend that, had Trump tried to assert executive privilege over Comey’s forthcoming testimony, the President would be on shaky ground because Comey no longer is a government employee.
That is not quite accurate. Had Comey once served within the White House, he would have been covered. The privilege resides in the President and the White House counsel. It is Trump’s alone to use. It theoretically would not have mattered whether Comey as a now private citizen wanted to testify or not. If Comey served in the White House, the President could invoke executive privilege. Whether the Senate Intelligence Committee would have accepted that is a different matter, and would that likely would have resulted in a story line we all have seen before – subpoenas, possibly refusals to comply, threats of contempt, more refusals, a contempt motion, and a lengthy legal battle.
The author is a former congressional investigator.