President Donald Trump can't invoke executive privilege to stop former FBI Director James Comey from testifying before Congress, a former government lawyer wrote in Politico on Monday.
Eric Columbus, who was senior counsel to the deputy attorney general in the Department of Justice and then special counsel to the general counsel of the Department of Homeland Security, said that despite Trump's reported deliberation on whether to use it or not, executive privilege simply can't apply in this case.
He explained that although the courts have preferred to let Congress and the White House work out these disputes themselves, and therefore having very few judicial decisions related to the question, executive privilege is rooted in the notion of separation of powers, and is the president's attempt to defend against congressional attempts to gain access to documents or testimony.
But Columbus points out that "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."
Although some have argued that the privilege belongs to the president and some official should not be allowed to declare it is no longer in effect, such as in attorney-client privilege, Columbus stresses that society has never determined that such communications with the president warrants the same exemption to the First Amendment.
Last week, Democrats on the House Judiciary Committee sent Trump a letter warning that blocking Comey's testimony "would be seen as an effort to obstruct the truth from both Congress and the American people."
The letter added that "any such assertion of privilege is almost certainly baseless, particularly given that Mr. Comey is no longer employed by the Trump administration."
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