WASHINGTON — White House spokesman Sean Spicer on Friday did not rule out the possibility that President Trump might invoke executive privilege to try to stop former FBI director James Comey from testifying Thursday before the Senate Intelligence Committee as part of its investigation into Russia's interference in the presidential election and possible collusion between the Trump campaign and Russian officials.
"Obviously, it's got to be reviewed," Spicer said in response to a reporter's question about executive privilege. "My understanding is the date for that hearing was just set. I haven't spoken to counsel yet. I don't know how they're going to respond."
Earlier Friday, Kellyanne Conway, counselor to the president, said on ABC's Good Morning America that "the president will make that decision."
"When Director Comey goes to testify, I think that will be a very clarifying moment," she said. "It's more important to have somebody testify under oath, frankly, than to have his friends and his former colleagues out there speaking to the media, not under oath."
Comey's much-anticipated testimony is expected to focus on his conversations with Trump, including about allegations that the president asked Comey to back off the FBI's investigation of former national security adviser Michael Flynn. Trump abruptly fired Comey on May 9 as Comey was leading that investigation.
Trump fired Flynn in February amid questions about whether he inappropriately talked about U.S. sanctions against Russia with a Russian official and then misled Vice President Pence about it.
Both the House and Senate Intelligence committees have issued subpoenas for Flynn's testimony and documents from his businesses.
Executive privilege is a legal doctrine that allows a president to withhold information from other branches of government — in this case, Congress. In 1974, during the Watergate scandal, the U.S. Supreme Court ruled in U.S. v. Nixon that executive privilege can only be invoked in certain circumstances, such as when a president is trying to protect national security or confidential advice from aides.
Legal experts said Trump doesn't have a good legal argument to invoke the privilege to block Comey's testimony.
"I think the president has effectively waived the privilege in this case because he has communicated publicly, in several different public formats, about his conversations with Mr. Comey," said Mark Rozell, an expert on executive privilege and the dean of the Schar School of Policy and Government at George Mason University in Virginia.
Trump talked about his conversations with Comey in TV interviews and on Twitter, making it hard for him to claim that they should be kept confidential now, Rozell said.
"Yet again, the president was not careful," the dean said. "If he had any intention of claiming executive privilege, he ultimately weakened his own case severely."
Trump also has less power to claim the privilege in regard to conversations with an ex-employee who no longer works for the executive branch, Rozell said.
"In this case, we're talking about private citizen James Comey," he said.
Andrew Wright, an associate professor at the Savannah Law School in Georgia who served as associate counsel to former president Barack Obama, said executive privilege was designed to allow a president to keep an aide's advice confidential or protect national security.
"It was not designed to allow the president to say, 'Let's silence a critic,' " Wright said. "That's not how it works."
The privilege can't be used to shield government misconduct — such as allegations that Trump may have tried to obstruct justice by asking Comey to drop the FBI's investigation of Flynn, Wright said.
"Courts have ruled that government misconduct is an exception to the doctrine of executive privilege," he said.
Rozell said "a rational person" wouldn't try to invoke the privilege.
"A rational person looking at the cost-benefit ratio — what's the chance of success and is it even worth trying — would ultimately conclude don't do it," he said. "But we all know this is a president who plays by his own set of rules and is very unpredictable."
Politically, invoking the privilege could hurt the president by furthering the impression that he has something to hide, Rozell said.
"If I were his attorney, my advice would be: Mr. President, if you've done nothing wrong and have nothing to hide, cooperate with the investigation, be completely transparent, you have nothing to be afraid of,' " he said.
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