The White House suggested on Friday afternoon there was a possibility that President Donald Trump would try to invoke executive privilege to block former FBI chief James Comey from testifying before the Senate Intelligence Committee on Thursday. But that was quickly dismissed by two unnamed senior administration officials who talked to the New York Times and assured Trump won’t be going down that road. At least that’s the thinking so far. Given the commander in chief’s “history of changing his mind at the last minute about major decisions,” it’s hard to know for certain what he’ll do, but regardless, legal experts agree the case for invoking executive privilege would be weak anyway.
When White House Press Secretary Sean Spicer was asked about the possibility of Trump invoking executive privilege to block the testimony, he seemed to suggest it was a possibility. “I have not spoken to counsel yet, I don’t know how they’re going to respond,” Spicer told reporters. House Democrats sent a letter to the White House on Friday night saying that the president couldn’t block Comey’s testimony by claiming executive privilege. The White House seems to agree, or at least knows that the optics would be terrible. The Times explains:
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 Mr. Comey, who is now a private citizen, would be unprecedented.
Courts have often struck down attempts by presidents to invoke executive privilege, and judges like to focus on the reason a commander in chief would want to keep something secret. “No court has ever allowed a president to use executive privilege to cover his own possible wrongdoing,” explains CNN’s Page Pate. Besides, even if Trump invoked the privilege, Comey would still be able to testify unless the White House somehow got a judge to issue an injunction, which experts say would be highly unlikely. Even so, “violating executive privilege isn’t a crime,” explained Jens David Ohlin, an associate dean at Cornell Law School. “So basically, if Comey really wants to testify, realistically there’s nothing the Trump administration can do to stop him.”