The White House announced Monday that President Donald Trump won’t use executive privilege to try to block former FBI Director James Comey from testifying to Congress about his interactions with the president, clearing the way for a Senate Intelligence Committee hearing to go ahead on Thursday.
“In order to facilitate a swift and thorough examination of the facts sought by the Senate Intelligence Committee, President Trump will not assert executive privilege regarding James Comey's scheduled testimony,” the White House said in an emailed statement from the press secretary.
If Comey’s testimony confirms several anonymously sourced reports that have appeared in the press since his firing — for instance, a report that Trump asked Comey to drop the FBI investigation into fired National Security Adviser Michael Flynn, and that Comey wrote a memo documenting this — it could be very damaging for the president.
So perhaps unsurprisingly, toward the end of last week, Trump’s aides floated the possibility that they could try to block Comey’s testimony with an assertion of executive privilege — a legal argument presidents have used to shield activities or documents from congressional scrutiny.
But executive privilege was never a good fit for Comey’s case, as lawyer Eric Columbus wrote in Politico magazine. “The doctrine rests on a recognition that the president and subordinate officials require some confidentiality in order to operate effectively,” Columbus argues. “But once Comey left office and signaled a willingness to testify, this ceased to be about separation of powers. Congress isn’t trying to pry loose information. Rather, an ex-employee with a story to tell wants to tell it to Congress.” In short: An assertion of executive privilege here would have been unlikely to have held up in court.
Furthermore, Trump’s team appears to have recognized that even if they managed to block Comey from testifying at this particular hearing, he would remain free to say whatever he knows to investigators or even to any reporter or media outlet. If Comey wants to tell his story, it will be told — one way or another.