‘Executive privilege’ to quiet ex-FBI director called an option

The White House is reviewing whether to invoke executive privilege to prevent former FBI Director James Comey from testifying before a congressional panel, sources close to the matter say.

Comey is scheduled to testify Thursday, first in public and then privately, before the Senate Intelligence Committee about his May 9 firing by President Donald Trump. The panel is investigating Russian meddling in the 2016 presidential election and whether the president or his associates were involved.

The New York Times reported late Friday, citing unnamed administration officials, that Trump is unlikely to attempt to stop Comey from testifying.

One of the administration officials said Trump wants Comey to testify because the president has nothing to hide and wants Comey’s statements to be publicly aired.

The officials spoke on condition of anonymity because they did not want to be identified discussing a decision that had not been announced. Trump spent part of Saturday at the Trump National Golf Club outside of Washington.

Asked Friday if the White House might invoke executive privilege, spokesman Sean Spicer told reporters: “That committee hearing was just noticed, and I think obviously it’s got to be reviewed.”

Spicer said he hadn’t spoken to the White House counsel, Don McGahn, about the matter.

A second White House official confirmed that the issue is under review.

To try to prevent Comey’s testimony, the White House could assert its right to prevent private deliberations from becoming public. Senators are expected to grill Comey on certain conversations with Trump or his aides, including one in which Trump reportedly asked Comey to drop an investigation into former White House national security adviser Michael Flynn’s dealings with Russia and Turkey.

In another conversation, during a one-on-one dinner at the White House, Trump asked Comey for a pledge of loyalty and Comey declined to give it, according to Comey’s associates. Comey, according to people close to him, wrote memos about his discussions with Trump shortly after each interaction.

Legal experts have said Trump has a weak case for invoking executive privilege because he has publicly addressed his conversations with Comey, including during an interview in May with NBC News and via Twitter. On May 12, Trump tweeted: “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!”

Senators are expected to question Comey about whether Trump asked him to drop an FBI probe into Flynn’s contacts with Russian government officials. Flynn was ousted Feb. 13, less than four weeks after Trump’s inauguration.

Trump asked Comey to drop the Flynn investigation, according to a person who was given a copy of a memo Comey wrote about the conversation. Trump has denied trying to quash the probe.

On Friday evening, House Democrats sent a letter to McGahn, saying there was no case for the president to exert the privilege on Comey.

Invoking executive privilege can be a politically treacherous move, recalling past scandals like Watergate, in which President Richard Nixon asserted the power to block congressional investigations. President Barack Obama used the legal authority once, during congressional inquiries after weapons ended up in the possession of Mexican gun cartels.

Presidents have often moved to keep their records and other communications with senior officials private until they leave office, on the theory that confidentiality is crucial to their ability to receive unvarnished advice on sensitive matters. But seeking a restraining order barring testimony by Comey, who is now a private citizen, would be unprecedented.

Independent analysts have said they don’t believe that Comey, because he’s a private citizen, can be stopped if he is intent on telling his story.

“In the context of a criminal investigation, executive privilege has to give way,” said Saikrishna Prakash, who lectures on constitutional law and the separation of powers at the University of Virginia in Charlottesville. “How is the president going to stop Comey from testifying? He can’t put somebody in jail for violating executive privilege, and he can’t fire him, because he’s already been fired.”

The administration also could seek a court injunction against Comey testifying, in which case a violation would constitute contempt of court. But a court likely would be reluctant to issue an injunction against testimony before Congress.

Trump adviser Kellyanne Conway said Friday on ABC’s Good Morning America that Trump and his staff would be “watching with the rest of the world” to see what Comey has to say. But asked directly whether Trump would invoke executive privilege to block Comey from speaking, she said: “The president will make that decision.” Protesters assembled in Washington and other U.S. cities Saturday in a March for Truth to demand an independent investigation into alleged connections between Trump’s campaign and Russia.