The White House is reviewing whether to invoke executive privilege to prevent former FBI Director James Comey from testifying before a congressional panel next week.
Comey is scheduled to testify Thursday before the Senate Intelligence Committee about his May 9 firing by President Donald Trump. The panel is investigating Russian meddling in the 2016 presidential election and whether the president or his associates were involved.
Asked Friday if the White House might invoke executive privilege, Press Secretary Sean Spicer told reporters: "That committee hearing was just noticed, and I think obviously it’s got to be reviewed.”
He said he had not spoken to the White House counsel, Don McGahn, about the matter.
A second White House official confirmed that the issue is under review.
Senators will almost certainly ask Comey whether Trump asked him to drop an FBI investigation into former White House National Security Adviser Michael Flynn’s contacts with Russian government officials. Flynn was ousted Feb. 13.
During a subsequent Oval Office meeting, Trump asked Comey to drop the Federal Bureau of Investigation probe into Flynn, said a person who was given a copy of a memo Comey wrote about the conversation. Trump has denied trying to quash the probe.
A White House assertion of executive privilege over Comey’s testimony and his notes would open a sensitive legal and political debate. Independent analysts have said they don’t believe Comey, now a private citizen, can be stopped if he is intent on telling his story.
“In the context of a criminal investigation, executive privilege has to give way," said Saikrishna Prakash, who lectures on constitutional law and presidential powers at the University of Virginia in Charlottesville. “How is the president going to stop Comey from testifying? He can’t put somebody in jail for violating executive privilege and he can’t fire him because he’s already been fired.”
Conceivably, the administration could seek a court injunction against Comey testifying, in which case a violation would constitute contempt of court. But a court likely would be reluctant to issue an injunction against testimony before Congress.
Trump adviser Kellyanne Conway said on ABC’s “Good Morning America” on Friday that Trump and his staff would be “watching with the rest of the world” to see what Comey has to say. But asked directly whether Trump would invoke executive privilege to block Comey from speaking, she said: “The president will make that decision.”
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