June 9, 2017 / 9:00 PM / 2 months ago

Privilege and the president

8 Min Read

(Reuters) - In his pre-presidential life, Donald Trump was the boss of his own company and the star of his own television show. He flew wherever he wanted on a private plane with gold-plated seatbelt buckles and was usually home at his Trump Tower penthouse – or at one of his lavish golf clubs – in time for a steak dinner, well-done with ketchup on the side. If privilege is the power to define your reality, Donald Trump the mogul had a triple scoop.

Privilege has a different meaning now that Trump is president – and especially now that he is a president whose administration is under investigation by special counsel Robert Mueller. Rather than the padding of power and wealth that cosseted Trump in his pre-inaugural life, privilege for the president is a legalism that, according to experts, does not provide as much protection as Trump seems to believe.

Yesterday, former FBI director James Comey confirmed in testimony before the Senate Intelligence Committee that he memorialized his meetings with the president, including a private dinner during which, according to Comey, President Trump asked him to pledge his loyalty and another conversation in which the president allegedly asked Comey to drop the FBI’s investigation of former Trump national security adviser Michael Flynn.

Comey told the Senate Committee that he was so concerned about Trump's public account of their interactions – and by Trump’s suggestion on Twitter that the president had taped their meetings – that he authorized a friend to disclose the existence and content of his memos to reporters.

In a written response to Comey’s testimony, Trump’s personal lawyer, Marc Kasowitz of Kasowitz Benson Torres, not only disputed the substance of Comey’s account of his conversations with President Trump but also disputed the former FBI director’s right to disclose those communications. Those meetings were privileged, the Kasowitz statement said. Comey, Kasowitz said, appeared to have an “entirely retaliatory” motive “for this unauthorized disclosure of privileged information.”

Kasowitz apparently intends to continue to make an issue of Comey’s supposed breach of privilege. According to a Reuters report on Friday, Trump’s lawyer plans to file a complaint at the Justice Department and a submission to the Senate about Comey’s disclosure of conversations with the president.

My call to Trump counsel Marc Kasowitz was referred to spokesman Mark Corallo, who did not respond to a phone message requesting comment on the privilege claim. Comey could not be reached for comment.

The Trump team’s insistence that Comey violated the president’s privilege raises the question of exactly what privilege may have shielded Trump’s discussions with the FBI director. As I’ve previously written, Comey was not acting as the president’s attorney in their conversations so Comey is not bound by attorney-client privilege.

Law professor Jonathan Turley of George Washington University argues that Comey violated FBI regulations governing the unauthorized disclosure of investigative material. "Any way you look at it, this is FBI information," Turley said, and Comey arranged for it to become public. "What he was describing is a grossly unethical act," Turley said.

But even if the former director improperly disclosed investigative details, his violation would involve privilege belonging to the FBI or the Justice Department, not to Trump.

The only Trump-owned privilege that could reasonably apply to Comey’s conversations with the president is the executive privilege for presidential communications. And despite the implication of Kasowitz’s statement on Thursday, executive privilege does not grant the president a right to cloak all of his conversations in secrecy – if it did, there wouldn’t be bookshelves full of the memoirs of ex presidential advisers.

The U.S. Supreme Court said in 1974’s U.S. v. Nixon that the privilege for presidential communications is qualified. The justices held the privilege can be overcome, for instance, when the communications are evidence in a criminal investigation, as they were when a special prosecutor subpoenaed President Richard Nixon’s audiotapes. Comey testified Thursday that his records of conversations with President Trump are now in the hands of special counsel Mueller.

President Trump almost certainly waived his right to assert executive privilege over his Comey conversations – if not when he disclosed details of those conversations in tweets and interviews then when the White House did not invoke the privilege to block Comey from testifying.

Trump, you’ll recall, said in his May 9 letter firing Comey that Comey had assured him on three separate occasions that Trump himself was not under investigation. (Comey confirmed that assertion in his Senate testimony.) The president subsequently disclosed additional details about his conversations with the former FBI director in tweets and, most notably, in an interview with Lester Holt of NBC.

The president and his advisers weighed whether to invoke executive privilege to attempt to block Comey from testifying. Obviously, they opted not to. But their deliberation, said Savannah Law professor Andy Wright, a former associate counsel in the Obama White House, erases any doubt that Trump cannot now claim executive privilege over his Comey meetings.

“He didn’t preserve the privilege,” said Wright, who called Kasowitz’s assertion of a blanket privilege over Comey’s memos “hogwash.”

There will be fallout for Jim Comey from his Senate testimony. As he admitted, he made some questionable decisions in the four months he worked for Donald Trump. By Comey's own account, he assured the president of his “honest loyalty” without being sure the president shared his understanding of the phrase and failed to stand up forcefully to the president when Trump allegedly asked him to drop the Flynn investigation.

Comey’s admission that he asked a friend to disclose the content of one of his memos in order to provoke the appointment of a special counsel leaves him open to accusations that he is a leaker. Law professor Stephen Vladeck of the University of Texas, said Comey didn't break the two laws most often used to prosecute government leakers - the Espionage Act and the federal conversion-of-property statute - because he didn’t disclose classified information relating to the national defense or information that could have pecuniary value.

Even Vladeck, however, said he believes the former FBI director should not have orchestrated the public disclosure of his memo. “It was wrong, just not illegal,” Vladeck told me. Law professor Turley said Comey was "unprofessional" and "damaged goods."

Trump, Kasowitz and their allies, in other words, have plenty of ammunition to use against Comey. But let’s dispense with the idea that the president was entitled to privilege when he talked to the FBI director.

An unfettered sense of privilege may have informed President Trump’s decisions in his former life as a CEO. He doesn't seem to realize that life is over now.

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