President Trump Checks His Executive Privilege

The White House is taking the path of least resistance: It won’t try to block former FBI Director James Comey from testifying before Congress this week.

Joshua Roberts / Reuters

After a mildly suspenseful week of speculation, the White House announced Monday that President Trump won’t invoke executive privilege in a bid to stop his former FBI director from testifying before Congress this week.

“The president’s power to assert executive privilege is well established,” White House Press Secretary Sean Spicer said in a statement. “However, in order to facilitate a swift and thorough examination of the facts sought by the Senate Intelligence Committee, President Trump will not assert executive privilege regarding James Comey’s scheduled testimony.”

The two-line announcement clears the way for Comey, who was suddenly ousted by Trump last month, to publicly address the Senate Intelligence Committee on Thursday. Though it’s unknown what Comey will say, the ex-director’s testimony is set to be a key turn in the political whirlwind surrounding his dismissal. It is also expected to shed some rare light on the sprawling federal investigation into Russian interference in the 2016 presidential election. Among the questions investigators hope to answer is whether the Trump campaign colluded with Moscow to undermine Hillary Clinton’s candidacy.

The president and his associates have repeatedly denied any wrongdoing. Trump himself described the investigation as a “witch hunt” one day after Deputy Attorney General Rod Rosenstein appointed former FBI Director Robert Mueller to oversee the inquiry as special counsel last month. Mueller’s elevation came after two weeks of fallout from the Comey firing, including reports Comey had kept memos describing Trump’s efforts to get him to drop a federal probe into Michael Flynn, the former national-security adviser.

Trump wouldn’t have been the first president to invoke executive privilege. Indeed, for a chief executive as unorthodox as he is, it would have been a rare moment of continuity. Beginning with George Washington, presidents have claimed an inherent legal privilege to keep some communications within the executive branch shielded from scrutiny by Congress and the federal judiciary. The history of executive privilege is long but not deep: Congress has often chafed at White House refusals to reveal information, but has almost never seriously challenged a president’s use of the power.

Framing debates about executive privilege is an inherent paradox. On one hand, the president is elected to serve as the nation’s chief executive. To do that job well, the reasoning goes, he must rely on candid advice and unvarnished information from those around him, ranging from his Cabinet to the White House staff. Allowing, for example, a hostile Congress to summon the president’s inner circle and interrogate them on sensitive conversations could leave officials less willing to speak their minds around him. That, in turn, could undermine his ability to do the job he was elected to perform.

But that’s not the only democratic impulse at stake. While presidents are elected by the people, they are also expected to be accountable to those same people, either directly or through their representatives in Congress. Excessive invocations of the privilege would undermine the public’s ability to scrutinize its own leaders and their decision-making processes. There’s also the risk that maladministration, whether criminal or incompetent in nature, could be covered up.

Claiming executive privilege to block Comey’s public testimony would have constituted an uphill battle at best. Trump would’ve needed to obtain an injunction from what would’ve likely been a skeptical federal court. (Judges read newspapers and know about the circumstances around Comey’s ouster, too.) There are few legal precedents on the privilege’s scope for congressional testimony, but most legal experts generally believe it can’t be invoked in cases of alleged wrongdoing or criminal behavior. What’s more, Trump may have effectively waived the privilege by publicly discussing his private conversations with Comey on multiple occasions.

There would have been quandaries beyond the courtroom, too. Any perceived effort to silence Comey likely would’ve triggered another political firestorm for a White House already under siege. With questions about obstruction of justice already swirling around the administration, attempts at interference could carry serious legal and political peril. For most administrations, the idea would’ve been dismissed as an unthinkable risk. But then again, so would firing the FBI director overseeing an investigation of your presidential campaign.