If Trump Tries to Silence Comey, Expect Sparks to Fly

(Bloomberg View) -- Can President Donald Trump block former FBI Director James Comey from testifying before Congress by invoking executive privilege? The answer turns out to be surprisingly tricky, despite the precedent of U.S. v. Nixon, in which the U.S. Supreme Court made President Richard Nixon hand over the Watergate tapes to a federal judge.

On the one hand, a congressional investigation is different from a criminal case -- which makes it less likely that a court would allow Comey to testify if Trump refuses. On the other hand, Trump has spoken about his conversations on Twitter -- which arguably waives his privilege to protect a private conversation with his adviser.

The only thing certain is that, if Trump invokes privilege regarding Comey, we're in for a wild legal ride.

Start with what makes the Comey situation different from the Nixon precedent. In 1974, the issue was whether the Watergate special prosecutor, Leon Jaworski, could subpoena secret White House tapes as part of his criminal case against several Nixon subordinates.

The justices unanimously said yes. In the course of the decision, the court formally embraced the idea that there is such a thing as “executive privilege” -- a limited right on the part of the president to withhold information about certain high-level communications with his advisers.

Until that point, the existence of such a privilege was subject to some legal doubt. The Constitution says nothing about executive privilege.

Chief Justice Warren Burger, who wrote the opinion, based the privilege on “the supremacy of each branch within its own assigned area of constitutional duties.” But Burger went on to reason that the privilege was not absolute. He emphasized that the judiciary has its own supremacy over the judicial process to think about.

In the key passage of the opinion, Burger wrote that “absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.”

Notice that this logic rests on the notion that a court would consider the relevance of the tapes secretly before deciding whether they were relevant to the criminal investigation.

In contrast, Comey's testimony before a congressional committee wouldn't be secret -- certainly not compared to a judge's private review.

What's more, Congress's interest in oversight of presidential action is different from the judicial interest in adjudicating a criminal trial. The Supreme Court hasn't addressed this issue directly, but the U.S. Court of Appeals for the D.C. Circuit has.

In a separate 1974 case, Senate Select Committee on Presidential Campaign Activities v. Nixon, the appeals court had to decide whether the Senate Watergate committee could access the tapes. The court said it could not. The test, according to the D.C. Circuit, was whether the subpoenaed evidence was “demonstrably critical to the responsible fulfillment of the Committee's function.”

The court said that the Senate committee hadn't shown that. The House was already using the tapes as part of its impeachment investigation of Nixon. Thus, said the court, the Select Committee's “immediate oversight need” for the tapes was “merely cumulative.”

It's not totally clear that the Trump-Comey conversations count as an “immediate oversight need.” Arguably they are necessary, and special counsel Robert Mueller's investigation shouldn't reduce that need, because he's part of the Justice Department, not Congress.

But to reach that conclusion, a court would first have to weigh in on a dispute between Congress and the president about executive privilege. And the D.C. Circuit said in a 1977 case that the courts should avoid adjudicating a disagreement over privilege between the two political branches until Congress and the president have tried in good faith to reach a compromise, and failed.

It follows that the courts would strongly seek to avoid ruling on an interbranch fight over Comey and executive privilege. That likely serves Trump's interest, not Congress's -- because without a judicial ruling, he can refuse to budge, daring Comey and Congress to defy him.

If a court did reach the issue, there's a further twist, this one running against Trump: his Twitter feed and other public commentary on his conversations with Comey.

The claim of executive privilege requires that the communications in question be confidential. Arguably, Trump has himself breached that confidentiality. It would be strange if he could then invoke privilege to block Comey from giving his version of events.

The exception would be any conversations that haven't yet been made public, by Comey or by Trump, assuming such conversations exist. If they do, they might well still be protected by the privilege.

In the light of all this, Trump might reasonably decide not to invoke privilege at all. A prolonged political and judicial battle is a recipe for more Watergate comparisons, however legally imprecise they might be. The fight might draw more attention to Comey and his testimony than already exists, if that can be imagined.

Yet there's a principled argument to stop Congress from hearing about high-level presidential conversations. And Trump's general legal strategy has been to fight in the courts, even when the odds of success look slim.

So fasten your seatbelts. Executive privilege is poised to become the legal doctrine of the moment.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net.

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