Memo: Does Executive Privilege Apply to Comey Testimony or Memos?

To:      Interested Parties

From:  United to Protect Democracy

Date:   May 23, 2017

Re:      Questions and Answers: Executive Privilege and Comey Testimony or Memos

This memorandum addresses questions that have been raised regarding possible White House attempts to invoke Executive Privilege in order to restrict Congress’s access to testimony or written memoranda from fired FBI Director James Comey.  President Trump may seek to assert privilege to prevent Congress from receiving memoranda Comey wrote documenting his conversations with President Trump or to block Comey from testifying.  Indeed, the White House appears to have already raised privilege concerns with respect to the Russia investigation.  In testimony before a Senate Judiciary Committee Subcommittee hearing, former Director of National Intelligence James Clapper referenced “some executive privilege strictures requested by the White House.”[1]

As described in more detail below, Executive Privilege is not an absolute privilege. While in some contexts, the privilege might restrict Congress’s ability to obtain a senior government official’s testimony or documents, in these circumstances Congress should have access to Director Comey’s testimony or documents.  In light of the President’s public statements and the context of Director Comey’s termination, there are both legal and practical considerations that would make an assertion of Executive Privilege unavailing.  Moreover, given that President Trump has provided his own public accounting of events relevant to an ongoing criminal investigation to his millions of Twitter followers, it would prove difficult for him to now invoke Executive Privilege to silence a party who contradicts his version of the facts.

1) Could Executive Privilege be invoked to restrict Director Comey’s testimony?

The President could claim privilege to request that Director Comey not testify or not divulge certain communications in that testimony.  This would raise two issues: first, whether a privilege invocation on these facts is sound as a matter of law; and second, whether as a practical matter the President could enforce such a request against Comey (the latter is discussed in response to the following question).

As a legal matter, it is unlikely such a request by the President would be a valid assertion of Executive Privilege.  Executive Privilege covers the President’s communications with Cabinet officials and similar senior advisers — and it applies to testimony as well as to tapes or written memorializations of those conversations.  But the privilege is not absolute — it must be balanced against Congress’s legislative need, which is strong here (see question 6 below).  See Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) (balancing congressional investigative need against a claim of executive privilege).  In addition, the potential illegality or misconduct at issue here enhances Congress’s need for this testimony and weakens the claim for privilege.  In re Sealed Case (Espy), 121 F.3d 729, 745-46 (D.C. Cir. 1997) (noting that an executive privilege claim grounded in deliberative processes “disappears altogether when there is any reason to believe government misconduct has occurred”).  A claim of privilege is further weakened where, as here (see question 4), there is a strong case that the privilege has been waived by President Trump’s public disclosures.

2) As a practical matter, could the White House keep Director Comey from testifying?

As a practical matter, because Comey is no longer a government employee, it is unlikely the President could keep him from testifying.  If Comey were still a government employee, the President could have directed him not to testify (under the implicit threat of dismissal).  Now that Comey is a private citizen, the President has no practical ability to restrict his testimony.  The President could make a request of him, but Comey could choose to testify in defiance of any request from the President that Comey respect his assertion of Executive Privilege.  By firing Comey, the White House has severely hamstrung the tools it had available to attempt to prevent Comey from testifying before Congress.  Comey might decline to address certain topics given the Special Counsel investigation, but this would not be due to any claim of Executive Privilege.

The White House could, perhaps, seek a court injunction to block the testimony, but there is no precedent for such an action and it would be exceedingly unlikely to succeed in light of the First Amendment and constitutional separation of powers principles.

3) Would Congress’s ability to obtain written Comey memos be different than its ability to obtain his oral testimony?

The President has a greater practical ability to control the disclosure of the memos to Congress (to the extent that no versions exist outside of the Executive Branch’s possession), but the legal validity of a privilege claim remains questionable.  As a practical matter, the key question for Congress’s access to the memos would be whether there are copies of the memos outside the possession of the Executive Branch.  The White House could order DOJ or the FBI to not turn over copies in their possession to Congress.  That would require Congress to take action to enforce a subpoena for the memos (see question 6 below).  But the White House does not have an obvious mechanism for controlling the distribution of memos that are not in possession of the Executive Branch, so it is possible Congress could obtain these without any privilege fight.

If the only copies are in DOJ’s possession and a legal privilege fight ensues, the legal question with respect to the memos would then be whether — in light of the testimony it hears from Comey — Congress still has a need for the written memos.  There is a strong argument that even after hearing Comey’s testimony, Congress would still need the memos, as those would be the best evidence available to resolve any differences between President Trump’s account of the conversations and Comey’s.  Written summaries of FBI interviews (often referred to as “302’s”) are routinely used in court as probative evidence of what was said.  The same would be true of the Comey memos here.  Congress’s need for the memos would, of course, be even stronger if it does not obtain oral testimony from Comey.

4) Has the privilege been waived given President Trump’s public statements?

Even if, in some contexts, the Executive Branch might successfully assert the presidential communications privilege over communications between the President and the FBI Director, such an assertion would run up against a strong waiver argument under these facts.  As with other types of legal privileges that are not absolute (for example, the attorney-client privilege), the Executive Branch can waive its ability to maintain the confidentiality of information by disclosing or speaking publicly about that information.[2]

Here, President Trump has, on several occasions, described the contents of his communications with Directory Comey.  First, the public letter Trump used to fire Comey referenced “three separate” conversations about whether Trump was under investigation[3]; second, Trump described those conversations in a television interview[4]; third, he released a tweet contradicting the account of the conversations reportedly in Comey’s memo[5]; and, finally, he may have discussed these conversations in his meeting with the Russian ambassador.[6]

In light of Trump’s repeated statements with the public or third parties about his conversations with Director Comey, it would be exceedingly difficult for President Trump to assert successfully that the privilege requires maintaining the absolute confidentiality of these conversations.  The purpose of the privilege is to protect the President’s ability to receive candid advice from his close advisers; by openly discussing those communications, President Trump has defeated the very rationale for the privilege.  Put another way, having used the sword of the White House bully pulpit to comment on his conversations with Director Comey, President Trump has severely undermined his ability to shield himself with the privilege.

The scope of waiver could extend not just to conversations about the FBI’s Russia investigation, but also reach any other FBI matters looking at Trump or his campaign or associates, as well as the reasons for Trump’s termination of Director Comey.  And even if the privilege has not formally been waived for these aspects, the President’s disclosures about the conversations would factor strongly into the balancing test of Executive and Legislative Branch interests.[7]

5) How does the Executive Branch decide whether to invoke the privilege?

The presidential communications privilege has a constitutional core, which means that the privilege belongs to the President alone.  So it would be President Trump’s decision as to whether to invoke it.  Presidents are usually reticent to invoke Executive Privilege because doing so creates a confrontation between the branches of government, carries a political cost, and suggests something is being covered up.  Past Presidents have formally invoked the privilege in relatively rare circumstances.

Typically, a White House will seek to accommodate Congress’s interests through negotiation without formal invocation.  Indeed, in previous Administrations, the White House has reserved its use of the term “Executive Privilege” for the rare instances when the privilege is actually invoked, and so will instead often refer to Executive Branch “confidentiality” or “institutional interests,” as it seeks to accommodate Congress’s need for materials.

In order to invoke the privilege, both Democratic and Republican administrations have followed a standard procedure whereby the Attorney General (upon receiving a written opinion from the Office of Legal Counsel (OLC)) assesses whether the legal basis for the privilege is met, and then makes a recommendation about whether the President may invoke the privilege.

This process is usually undertaken only after a congressional committee has subpoenaed the Federal Government for documents or testimony by an Executive Branch official, the accommodation process is unsuccessful, and Congress takes steps toward holding the relevant Executive Branch official in contempt for either refusing to produce the documents or testify.  OLC approval has been viewed as critical because it provides comfort that the Justice Department will not prosecute the individual that Congress holds in contempt.

6) If Congress really wants information from Director Comey despite invocation of the privilege, how would it go about getting it?

 There are several ways Congress could get information it seeks (for example, Comey’s memos) notwithstanding invocation of the privilege.  To begin, relevant Committees should issue subpoenas pursuant to their rules.  That obligates the Executive Branch to provide the requested information or invoke the privilege.  Congress has the constitutional authority to evaluate for itself whether it accepts the assertion of the privilege as valid.  If a subpoena is ignored, and Congress does not accept the privilege assertion, a house of Congress can then go through the process of holding the recipient of the subpoena in contempt.

Here, for example, that could apply to a subpoena to the Attorney General or Acting FBI Director to produce memos in the possession of the Justice Department or the Bureau.  Recent case law allows a house of Congress to seek a civil judicial order to enforce the contempt order and obtain the requested materials.[8]  The court can then assess the claim of privilege and the Executive Branch and Congress’s respective interests.

In that scenario, if a court were to conclude that the privilege has not been waived, it would then assess whether the privilege applies to the Comey memos.  A critical factor in that analysis would be Congress’s legislative need for the materials.  A congressional committee could articulate several strong bases.  One reason is that the Committee needs to understand how the President approaches his relationship to the FBI Director in order to decide whether to confirm the President’s next nominee for that position.  Another is that the Committee might be interested in pursuing legislative protections to ensure the independence of the FBI Director (such as the 10-year term and reporting requirements on inappropriate White House – DOJ contacts).[9]

In addition to seeking a civil court order, Congress can use any of the other political tools it has available under the Constitution for checking the President — including appropriations, withholding approval of the President’s nominees for Executive Branch or judicial positions, or ultimately impeachment proceedings.

7) How are disputes between Congress and the Executive Branch over documents and testimony usually resolved, as a practical matter?

 It is unusual for disputes between Congress and the Executive Branch over privilege to be resolved by the courts in civil litigation.  Usually, there is a process of accommodation whereby the Executive Branch seeks to satisfy Congress’s legislative need for materials — and at the same time Congress respects the Executive interest in protecting the information.  Traditional tools of accommodation include providing summaries of requested information; “in camera” review of the materials, meaning that the Congressional committee may read the materials but not take possession; or redacting materials to limit access to material outside the scope of the investigation.

Given the circumstances here, including the FBI investigation into Russia and the Trump campaign, as well as Trump’s stated reasons for firing Director Comey, Congress would have a strong case for ultimately sharing with the public the information it receives through its investigations.

8) Could President Trump rely on Executive Privilege to prevent the Special Counsel from having access to Comey’s memos or testimony?

 Typically, a White House will seek to accommodate a DOJ criminal investigation to avoid concerns about obstruction or interference in the even-handed application of the law.[10]  Any attempt by the Trump White House to impede the Special Counsel investigation, including by denying access to requested documents or testimony, would be highly concerning.  In fact, that is exactly what President Nixon tried to do during Watergate.  In United States v. Nixon, however, the Supreme Court ruled that the President had to turn over tapes requested by Special Prosecutor Leon Jaworsky because the grand jury’s need was compelling.[11]

In light of the events leading to the appointment of a Special Counsel, Congress should consider it unacceptable were President Trump to seek to withhold from the Special Counsel information pertinent to that investigation.

[1] https://www.washingtonpost.com/news/post-politics/wp/2017/05/08/full-transcript-sally-yates-and-james-clapper-testify-on-russian-election-interference/?utm_term=.a83638c24c00.

[2] See, e.g., In re Sealed Case (Espy), 121 F.3d at 741; New York Times Co. v. United States Dep’t of Justice, 756 F.3d 100 (2d Cir. 2014) (assessing waiver of confidentiality claims in the FOIA context).

[3] http://www.cnn.com/2017/05/09/politics/fbi-james-comey-fired-letter/.

[4] http://www.nbcnews.com/news/us-news/trump-reveals-he-asked-comey-whether-he-was-under-investigation-n757821.

[5] https://twitter.com/realDonaldTrump/status/863007411132649473.

[6] Matt Apuzzo et al., “Trump Told Russians That Firing ‘Nut Job’ Comey Eased Pressure from Investigation,” N.Y. Times (May 19, 2017), https://www.nytimes.com/2017/05/19/us/politics/trump-russia-comey.html?_r=0.

[7] Helen Klein Murillo, “Congressional Access to the Comey Memos,” Lawfare (May 19, 2017), https://www.lawfareblog.com/congressional-access-comey-memos.

[8] E.g., Committee on Oversight and Government Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013); see also 2 U.S.C. § 288d (providing statutory authority for a civil action to enforce a Senate subpoena).

[9] United to Protect Democracy, “White House Communications with the DOJ and FBI,” (Mar. 8, 2017), https://unitedtoprotectdemocracy.org/agencycontacts/.

[10] See Justin Florence, “On the Importance of Limiting White House-DOJ Contacts: It’s Not Just About Obstruction,” Lawfare (May 22, 2017), https://www.lawfareblog.com/importance-limiting-white-House-doj-contacts-its-not-just-about-obstruction.

[11] 418 U.S. at 713 (“We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”).