A Point of Privilege - An Analysis of Executive Privilege

The anticipated testimony before Congress of former FBI head James Comey, has led to discussion of whether the Trump Administration might seek to prevent Comey’s testimony by the assertion of Executive Privilege.

The U.S. Supreme Court first recognized the concept of Executive Privilege in the 1974 case of U.S. v. Nixon. The concept recognizes that the executive branch of the government has an interest in protecting the confidentiality of communications between the President and his top advisors in order to facilitate the President’s receipt of candid advice from his aides.

The law recognizes that all Presidential communications are preemptively privileged. And in the Nixon case, the President’s lawyers argued that the Constitution always provides an absolute privilege for all presidential communications. But the Supreme Court ruled that the protections afforded by the privilege are not absolute. The Court found that, although the President’s need for confidential advice was entitled to great deference, it must be balanced against other interests as well.

The highest level of protection is afforded in those cases involving a need to protect military, diplomatic, or sensitive national security matters. But when the communication does not relate to such topics, the Court concluded that the legitimate need of the judicial branch of government in overseeing the administration of the criminal justice system could potentially outweigh the President’s need for secrecy. Any Court asked to review the assertion of executive poser would have to balance the President’s desire for confidentiality against competing interests, such as the need of Congress to perform its legislative or oversight functions.

And in the context of Mr. Comey’s possible testimony, President Trump has already publicly discussed in significant detail his conversations with the former FBI director, and so it might be argued that the President has waived any applicable privilege.

A court employed this rationale in ordering the Obama Justice Department to turn over records related to the so-called Fast and Furious scandal. And even if the President could potentially assert privilege, there would be a potential political cost in doing so, which the President would have to weigh.

Any attempt by the President to block testimony by Comey would, to many people, be viewed as self-serving, and not motivated by appropriate reasons. It is for this reason, many feel that the Trump administration will not seek to invoke the privilege, even if they feel that it was technically permissible to do so.