White House Senior Advisor, Kellyanne Conway in an interview with ABC News, left room for speculation that President Trump might conceivably move to prohibit former FBI Director James Comey from testifying before Congress next week.
At first Conway said, “We’ll be watching with the rest of the world when Director Comey testifies.” But in a follow up question, she was asked about the possibility of the president invoking “executive privilege” to block the man he fired less than a month ago from speaking to the Senate Intelligence Committee, Conway responded, “the president will make that decision.”
Comey’s presentation before the committee is pivotal with regard to the Committee’s ongoing probe, not only into whether and to what extent, Trump’s campaign may have been involved in colluding with Russian officials to sway the election, but also the question that has more recently arisen concerning the possibility of obstruction of justice on Trump’s part.
The issue of obstruction of justice arose as a consequence of the reports that surfaced indicating Trump attempted to quash the FBI’s investigation into Trump’s National Security Advisor, General Michael Flynn. The Washington Post, which has been the source of a great deal of discomfort to the Trump White House in the past month, comments on the nature of the discussion that would be featured in Comey’s appearance before the Senate panel:
“Comey has alleged in memos that Trump asked him to pledge loyalty and to shut down his inquiry into former national security adviser Michael Flynn. “Even if Comey can’t talk about sensitive details of an ongoing criminal investigation, legislators will likely want to inquire about his conversations with the president and the circumstances of his firing.”
Regarding the executive privilege maneuver that is the subject of speculation, it is likely the president’s White House Chief Counsel, Don McGahn will advise him against it. Had Trump not impulsively fired Comey last month, invoking executive privilege might have had some plausibility from a legal standpoint.
The only way Trump could attempt to stop Comey, a now private citizen from appearing before Congress, would be to file a motion with a Federal District Court Judge, asking for a restraining order on Comey. Something like that has not happened before, and Trump’s attorneys would have no precedent to submit to the court.
The other impediments to such a move would be the counter argument that a restraining order would block Congress from its responsibility to investigate what has been referred to as “Russiagate”. But there is another wrinkle here. Trump has been openly commenting on his communications with Comey and the controversy surrounding it. Opposition attorneys, on behalf of the public interest, will argue that Trump has compromised any confidentiality that would ordinarily be the basis for a gag order on Mr. Comey.
Outside observers such as Peter Shane, an Ohio State University professor and expert on separation of powers questions, point out the vast political downside for Trump in attempting to block Comey from testifying.
“It would look like the president, in a self-serving and self-protective move, was trying a relatively unprecedented judicial proceeding to keep information about his own conduct from becoming public”.
And executive privilege, even if it were successful in court, would only prevent direct disclosure of the matters under investigation. It would not prevent newly appointed Special Counsel, Robert S. Mueller from obtaining the same information from Comey.