Much talk is being made of the possibility of President Donald Trump invoking executive privilege to keep former FBI Director James Comey from testifying before Congress this week. That privilege allows the President and cabinet members to protect their communications from being accessed and reviewed by other branches of the federal government.
On Sunday, LawNewz.com founder Dan Abrams discussed the possibility of the President invoking executive privilege on ABC’s “This Week With George Stephanopoulos.” Suffice to say, Abrams doesn’t think claiming executive privilege would get Trump anywhere.
First, Abrams noted, “You can’t use executive privilege to cover up alleged misconduct,” as the Supreme Court made clear in United States v. Nixon. “There would be an argument here that would be the reason for it.”
Abrams also pointed out that executive privilege applies to confidential information. Since Trump has publicly discussed his termination of Comey and conversations he supposedly had with him while Comey was FBI Director, Comey is free to discuss those matters. “It’s no longer a confidential communication when the President tweets about it, talks about it in interviews, and as a result you can’t invoke that privilege anymore,” Abrams said.
Finally, the fact that Comey doesn’t work for Trump anymore hinders the President’s ability to control him. It would be one thing, Abrams said, if Trump was still Comey’s boss and he instructed him not to testify. Since Trump fired him, however, “he doesn’t have that authority or power over James Comey anymore.”
For those reasons, Abrams concluded, “It would be a really weak legal argument to try to invoke executive privilege.”
[Screengrab via ABC]
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