Trump was right to let Comey testify

For days speculation abounded about whether President Trump would invoke executive privilege in an attempt to prevent former FBI Director James Comey from testifying before Congress. Fortunately the president backed away from making such a play. He had to have concluded that there was no credible basis for a claim of executive privilege in this particular matter. 

But the president’s tweets and comments on Comey, whose prepared testimony a day before he appears before the Senate Intelligence Committee Thursday is already causing a stir, effectively took away the privilege he would have had. Some background:

{mosads}Executive privilege is the constitutional principle that the president has the right to withhold information that he believes would damage the public interest if made public. Customarily, presidents have invoked this power to conceal some national security information, to maintain confidential deliberations in the White House, and to protect the integrity of ongoing investigations in the executive branch. It is not an absolute, all-encompassing power that a president may invoke at any time, for whatever reason he chooses.

Executive privilege is a somewhat murky constitutional principle and to many it is associated mostly with the Watergate scandal. As a result, executive privilege often has a negative connotation even though it has long been recognized as a legitimate presidential power under certain circumstances.

This power goes back to the early years of the Republic, even though no president ever used the phrase “executive privilege” before Dwight D. Eisenhower. Nonetheless, almost all presidents have exercised this power at some point and there have been a number of highly charged controversies surrounding executive privilege including Watergate, the impeachment of President Clinton, and the “Fast and Furious” program investigation under President Obama. 

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Executive privilege is limited by the legislative power to conduct investigations. As with most presidential powers, executive privilege is subject to a balancing test and the needs of a congressional committee for testimony frequently is much more compelling than any presidential claimed need for secrecy. Congress has a right to access to almost any and all information that is germane to an investigation of possible wrongdoing in the executive branch. That is a principle at the very core of a democratic system based on accountability.

Furthermore, and there is no delicate way to put this, the president tripped himself in this matter by being so careless about his public utterances and musings on twitter and by firing Comey. First, the president already had effectively waived executive privilege by making public his own claims about the nature of conversations that he says that he had with Comey. Once the president spills information out on his own terms about conversations he had with a public official, he has lost the right to come back and claim executive privilege over those same conversations. 

James Comey better hope that there are no “tapes” of our conversations before he starts leaking to the press!

— Donald J. Trump (@realDonaldTrump) May 12, 2017

Second, the president easily could have directed the FBI director not to testify under a claim of executive privilege, but he cannot do so regarding private citizen James Comey. There is long-standing precedent for presidents to refuse to allow testimony by high-level executive branch officials, but the privilege weakens substantially once someone becomes a private citizen.

Leaving aside the issues of legality and propriety, the president would have put himself in a politically even worse situation than he is in now by invoking executive privilege. Whether fair or not, most Americans assume a claim of executive privilege is an attempt to conceal wrongdoing or to hide embarrassing information. 

The president claims he has done nothing wrong and that he is the victim of a “witch-hunt.” So it makes sense that he finally decided to make public that he will not invoke executive privilege. 

Welcoming Comey’s testimony is the right thing to do.  

Rozell is dean of the Schar School of Policy and Government at George Mason University and author of the book “Executive Privilege: Presidential Power, Secrecy, and Accountability.”

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