Trump’s tweets, interviews could cost him executive privilege

The president’s disclosures about James Comey’s firing may allow Comey to testify publicly about conversations with Trump

Then-FBI Director James Comey pauses as he testifies on Capitol Hill before a Senate Judiciary Committee hearing in Washington D.C. on May 3, 2017. CREDIT: AP Photo/Carolyn Kaster
Then-FBI Director James Comey pauses as he testifies on Capitol Hill before a Senate Judiciary Committee hearing in Washington D.C. on May 3, 2017. CREDIT: AP Photo/Carolyn Kaster

President Donald Trump’s disclosure last week that he questioned former Federal Bureau of Investigation Director James Comey on multiple occasions about the agency’s ongoing Russia probe, as well as Trump’s tweet about the possible existence of tape recordings of these conversations, will put the commander-in-chief on shaky legal ground as Congress digs further into why the president abruptly fired the man leading that probe.

Trump told NBC’s Lester Holt last week that he had planned to oust the FBI chief before U.S. Attorney Jeff Sessions recommended Comey’s removal. That contradicted a White House statement that Trump acted based on Comey’s mishandling of the FBI’s Hillary Clinton private email-server investigation.

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In the same NBC interview, Trump also claimed Comey told him that the FBI was not investigating him as part of the agency’s probe into whether the president’s associates colluded with the Russian government.

“I actually asked him” if I was under investigation, Trump told Holt, noting that he spoke with Comey once over dinner and twice by phone.

Legal experts said Trump’s disclosures put into question whether his conversations with Comey are protected by presidential executive privilege, a legal doctrine that is not constitutionally guaranteed but that historically has protected a president’s communications. Trump’s public discussions of the Comey conversations may have opened the door for Congress to press Comey on what was said during his conversations with Trump, wrote Laurence H. Tribe, a professor of constitutional law at Harvard Law School in a Twitter post.

University of Texas School of Law Professor Stephen I. Vladeck, also a constitutional law expert, told ThinkProgress that a president’s public comments can waive executive privilege for a particular topic.

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“Certainly, the more President Trump opens his mouth and/or his Twitter account, the harder it will be for him and his associates to prevail in a fight over executive privilege — but that won’t stop them from invoking it, and from requiring Congress or the courts to sort it out,” wrote Vladeck, in an email.

Trump’s actions also raised questions about the ethics of the president’s interference in an ongoing investigation.

“The White House is not supposed to speak to the FBI about investigations, except through the Attorney General or Deputy Attorney General, in order to avoid political interference with investigations. Trump appears to have violated that prohibition,” wrote constitutional law expert David Cole in an email to ThinkProgress. Cole is national legal director at the American Civil Liberties Union and is on leave from teaching at the Georgetown University Law Center.

In a blistering piece last week in The New York Review of Books, Cole described Comey’s firing as a constitutional crisis and wrote that “the indications of unlawful behavior by the administration are strong” given that Sessions recused himself from the FBI’s Russia investigation yet was involved in the firing of Comey.

The firing is also suspect, Cole pointed out in the piece, because during the presidential campaign both Sessions and Trump praised Comey’s decision to publicly announce the FBI’s re-opening of the Clinton investigation.

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In light of the ongoing FBI investigation, Trump’s decision to fire Comey is questionable, wrote Cole in his email to ThinkProgress.

“It makes you wonder what he is hiding,” wrote Cole.

Trump made a thinly-veiled threat to Comey on Twitter last Friday, and essentially warned him to keep quiet, suggesting that their conversations may have been recorded. White House spokesman Sean Spicer later refused to elaborate further on whether the president records his conversations and denied that the tweet threatened Comey.

The tweet drew immediate rebukes. On Friday, Congressmen John Conyers, Jr. and Elijah Cummings fired off a letter to the Office of White House Legal Counsel noting that “it is a crime to intimidate or threaten any potential witness with the intent to influence, delay, or prevent their official testimony.”

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Trump’s revelations also led members of Congress to demand copies of the tape recordings—if they exist — and resulted in a barrage of criticism that the president’s statements and actions not only risk undermining the multiple criminal and counter-intelligence investigations underway, but could be construed as possible intimidation and obstruction of justice.

“The explanations for why he has fired Mr. Comey are so varied at this point and divergent that I think we, the American people, need to know what happened,” said Congressman Raja Krishnamoorthi (D-Illinois) in an interview with ThinkProgress. “And we need to get to the bottom of why James Comey was fired and whether he was fired to basically obstruct an investigation. In other words, to stop or halt or slow down or misdirect an ongoing investigation into the administration and possibly even Donald Trump himself.”

Krishnamoorthi, who is a member of the House Oversight Committee, sent a letter to the president’s counsel last week, asking for confirmation of the existence of the tapes or taping system in the White House. If the tapes exist, the congressman requested that they be turned over to the oversight committee. Based on Trump’s actions last week, Krishnamoorthi also reiterated his call for a transparent 9/11-style independent commission to investigate the possible collusion between Russia and Trump’s associates.

“Short of that, I will do everything I can from my position on the oversight committee to further this probe,” said Krishnamoorthi.

Krishnamoorthi, who is a lawyer, and in 2007 served as a founding prosecutor in Illinois Attorney General Lisa Madigan’s anti-corruption unit, also said that based on his understanding of the law, executive privilege is waived if there is evidence of criminal or illicit conduct.

If Trump instructed Comey to take illegal action and Comey refused, or if Trump pressured Comey to halt the Russia investigation, any evidence, recordings or information related to that would likely not be subject to executive privilege, he said.

“Because that would be evidence or information concerning potential illegality. So the privilege only extends so far, but I don’t believe it extends to covering up wrongdoing,” said Krishnamoorthi.

The Senate Intelligence Committee invited Comey to testify this week, but he declined. And, according to the New York Times, a close Comey associate said the former FBI director is willing to testify, but wants the testimony to be in public.

In the NBC interview with Lester Holt, Trump claimed that he never tried to pressure Comey into dropping the FBI probe of the Trump campaign and insisted, “I want to find out if there was a problem in the election having to do with Russia.”

Asked by Holt if by firing Comey he was trying to send a “lay off” message to his successor, Trump said, “I’m not. If Russia did anything, I want to know that,” he said.

Trump also insisted there was no “collusion between me and my campaign and the Russians.”

Trump’s actions also raise ethical questions about whether his inquiries to Comey violated U.S. Department of Justice protocol that discourages interference or influence from the White House during ongoing investigations.

The guidelines, with few exceptions, prohibit such disclosures. “The Department of Justice shall not respond to questions about the existence of an ongoing investigation or comment on its nature or progress, including such things as the issuance or serving of a subpoena, prior to the public filing of the document,” the guidelines state.

Georgetown University Law Center Professor Julie Rose O’Sullivan said it’s not clear that these prohibitions extend to FBI agents or that it was improper for Comey to meet with Trump. The issue, she said, is what was discussed during the conversation.

“I think it’s inappropriate, totally inappropriate, given… this line that’s supposed to exist between the Department of Justice and the White House. But Trump doesn’t seem to be aware of what those lines are,” said O’Sullivan, an expert in white collar crime and international criminal law.

O’Sullivan, a former assistant U.S. attorney in the Criminal Division of the United States Attorney’s Office for the Southern District of New York, worked for Comey in that office, and said she is doubtful that her former boss disclosed anything to Trump regarding whether the president was under FBI investigation.

“I just find it incredibly hard to believe that Jim would answer that question,” said O’Sullivan. “Jim is as straight and narrow as you’re ever going to find.”

Trump’s question, in and of itself, may not be considered obstruction of justice, but firing Comey with the intent to impede the FBI’s investigation would be, said O’Sullivan.

“If he was corruptly trying to derail investigation, that’s obstruction. If he really thought that [Comey] was incompetent and he didn’t want him any more, then that’s not obstruction. So it all comes down to intention,” said O’Sullivan.

For Krishnamoorthi, there are many unanswered questions that must be resolved in order to determine whether Trump had an ulterior motive in firing Comey. For example, it’s unknown how far the FBI’s Russia investigation had progressed and what Comey had discovered or was about to discover when Trump dismissed him, he said.

“The investigation was advancing to a stage beyond its preliminary stage, and so why the president decided to fire him at this moment is a question that needs to be answered,” said Krishnamoorthi. “But the timing is definitely curious.”