After the public testimony of former FBI Director James Comey on Thursday, President Donald Trump’s personal lawyer, Marc Kasowitz, released a statement. In addition to being riddled with typos, it contained a curious legal argument.
Kasowitz contended that Comey broke the law by leaking memos about his private conversations with the president — what the statement called an “unauthorized disclosure of private information.”
The not-so-subtle implication here is that any and every conversation with the president is privileged, and therefore protected under the law. That’s a rather broad interpretation of executive privilege, and one that 10 legal experts disputed in interviews with Vox.
Executive privilege exists for a reason: to protect against the forced disclosures of classified or confidential executive branch communications. But here’s the problem: The conversations between Trump and Comey were not classified. Moreover, because the president himself has publicly referred to the conversations in question, he has already waived any claim for executive privilege. That Comey is now a private citizen also weakens the Kasowitz’s claim that he’s bound to secrecy.
There is, however, little settled law on the question of executive privilege. So I reached out to 10 legal experts and asked them if Kasowitz’s interpretation of executive privilege makes any sense. Every one of them said it doesn’t.
You can read their full responses below.
Jed Shugerman, Professor of Law, Fordham University
Trump waived any claim on executive privilege when he wrote in an official presidential statement a reference to the “three times” Comey told him he was not personally under investigation. By referring publicly to their conversations and this content, he waived his claim for privilege and secrecy of those exchanges.
Moreover, the Trump administration did not invoke the privilege before today, so they are trying to slam the door on the barn after the horse has already run away, as they say. It’s not only a practical problem, it’s also a legal problem. Courts are not going to take this claim seriously when the president had notice of the testimony and did nothing at the appropriate time. It’s just a “make-weight” argument to throw in a letter when a lawyer does not have a strong coherent argument. It’s legal noise without substance.
Executive privilege is not absolute. The Supreme Court in U.S. v. Nixon, the major Watergate case, held that executive privilege must be balanced with the public right to know. The Court rejected Nixon’s argument that he had an “absolute, unqualified Presidential privilege of immunity.” Even if Trump had never waived the privilege with his tweets and his official statement firing Trump, a court could have followed U.S. v. Nixon and found that the public interest outweighs the interests of the executive.
Finally, Kasowitz condemns Comey for “leaks.” A leak is not any conversation. It specifically means the release of secret or classified information. 1) None of this material was classified, as Comey carefully and clearly explained. Kasowitz was not paying attention and/or does not understand the meaning of the word “leak.” 2) Comey is a private citizen, and he has no duty to conceal nonclassified conversation now. He also was sharing the information with a private citizen. 3) So Kasowitz’s letter is really an attack on private free speech by stretching the word leak to cover any conversation by a former government official about nonclassified information and events.
Jens David Ohlin, Professor of Law, Cornell University
The statement is somewhat ambiguous — probably by design. Which privilege applies here? It’s clearly not attorney-client privilege, since Comey was acting in his capacity as FBI director, not as an attorney. In terms of executive privilege, there’s no statutory law codifying the exact contours of the privilege, and I would consider it anomalous if executive privilege could shield an ongoing obstruction of justice. And I seriously doubt that a federal court would interpret executive privilege to shield an obstruction of justice.
In any event, the whole issue is largely irrelevant. Comey already testified. Whether he violated executive privilege or not doesn’t change the fact that he’s now disclosed what happened in his meetings with Trump. Violating executive privilege isn’t a crime. And it is important to distinguish between a putative rule of evidence and an affirmative defense. Executive privilege is not a defense. So even if Comey violated executive privilege it wouldn’t change the fact that Trump obstructed justice, or acted corruptly, in firing Comey to stymie a federal investigation into his campaign or administration.
Eric Posner, Professor of Law, University of Chicago
There is no such thing as “privileged information.” There is such a thing as “executive privilege” but the memo (no doubt deliberately) does not mention “executive privilege.” In any event, executive privilege has a specialized meaning and refers only to the president’s ability to prevent a subordinate from testifying. Finally, disclosure of classified information is a crime.
Trump’s lawyer is making a political argument, not a legal argument. The political argument is that Comey was biased against Trump and out to get him (hence Comey leaked bad things about Trump but not good things), and that Comey confirmed that Trump was not being investigated for the Russia ties.
And also note, back to the legal issue, that Trump did not assert executive privilege against Comey, so it is a non-issue even if Trump could have.
Lisa Kern Griffin, Professor of Law, Duke University
“Privileged” seems to mean confidential in the statement — it isn’t really being used as a term of art because there has been no assertion of privilege by the president. There is very little law on executive privilege. Most of the disputes over the assertion of privilege that have arisen with respect to congressional testimony have been resolved through negotiation. It’s rarely litigated, and there are some unanswered questions.
There is a sort of presumption that conversations with the president about the business of the executive branch are privileged and confidential, but that doesn’t mean that everything the president says is privileged. It wouldn’t cover, for example, references to campaign activities before the president took office, or the president discussing topics beyond his duties and authority. Director Comey may have concluded that the irregularity, impropriety, and even potential criminality in these encounters precluded any assertion of privilege.
Privileges can be waived when the privilege-holder has publicly disclosed the conversations in question — which was the case here with respect to some of the meetings between the president and Director Comey.
Samuel Gross, Professor of Law, University of Michigan
It’s not true that any and all conversations with the president are protected under executive privilege — not even if it’s limited to private conversations with the president. It depends on the content and the context. If Trump and Comey talk about baseball, that’s not privileged. Ditto if some hypothetical president told an adviser to bribe a witness or destroy evidence — or commit any other criminal act.
How does that apply here? Who knows. It’s a murky area without a lot of clear law. In 1974 in U.S. v. Nixon, the Supreme Court recognized a constitutionally based privilege that protects confidential communications between a president and his or her immediate advisers — but it’s qualified. In particular, the Court said it had to give way in that case because the evidence was relevant to a criminal investigation.
If that executive privilege is the privilege that Kasowitz has in mind, a court would have to determine if it applies to these communications. (Was Comey a “close adviser”? Was the content confidential? Was it relevant to the president’s official duties? and so forth.) That process requires an inquiry into the content of the communications, which is probably disputed.
And then there’s the question of whether any possible privilege was waived. If Trump himself has talked publicly or tweeted about some of these conversations, that could easily mean he has waived any such privilege and can no longer claim that it exists.
The government also has a privilege to prevent the disclosure of military, national security, or diplomatic secrets — basically classified information. Comey said that none of what he’s described in testimony or memos about conversations with Trump was classified. That sounds right to me — privileged or not, none of this sounds like classified information — but others may know better.
The clearest point in this foggy mess is the dog that didn’t bark: Trump and his advisers and lawyers knew for weeks that Comey was going to testify today about his conversations with the president, but (from what I’ve read) they did nothing to assert any sort of privilege.
Why not? I have no idea. Maybe they concluded that they had no claim. Maybe they were just as happy, under the circumstances, to have Comey testify at this hearing. Maybe they did not relish the prospect of litigating the existence of a privilege and addressing the sort of issues I’ve mentioned in the federal courts.
Whatever the reason, that failure to claim any privilege could easily mean that if the president had a privilege to prevent these disclosure, it’s now gone forever.
Mark Tushnet, Professor of Law, Harvard University
There’s a presidential deliberative privilege that some contend to all discussions with the president. It’s clearly not absolute in connection with court proceedings and it’s also clearly available. It’s not clear that there’s anything unlawful about a private person’s disclosure of material covered by the privilege.
You have to distinguish between executive privilege, which typically involves issues of national security, the deliberative privilege, which involves anything that might have to do with any kind of presidential decision-making (and so it’s quite a bit broader).
One thing, which is flagged indirectly in Kasowitz’s statement, is that leaking something covered by executive privilege might violate some laws about national security information, but it’s not clear that leaking material covered only by the deliberative privilege violates any criminal statute. (It might, but it’s not clear that it does.) I think that the president and his allies are trying to blur the distinction between the deliberative privilege and executive privilege.
Keith Whittington, Professor of Politics, Princeton University
As a general matter, the president can withhold documents or testimony from Congress on the grounds that such information, if made public, would damage the national interest. In particular, our constitutional tradition has recognized that presidents must be free to receive candid advice from officers in the executive branch, and that the quality of such consultation and deliberation would be damaged if Congress or the courts could easily force the executive branch to open them to public scrutiny.
If Comey were still the director of the FBI and Congress wanted to inquire into what Comey and the president discussed in private meetings, it would be reasonable for the president to refuse to allow him to testify. At that point, it would be up to Congress as to how far they wanted to push the issue in order to gain access to that information.
But Comey is now a private citizen, and not within the control of the president. The president is no longer in a position to deny Congress access to Comey’s testimony. Moreover, Comey is willing to voluntarily discuss his conversations with the president, so any concern that we might have about the chilling effect of coercive congressional intrusion into those conversations is negated.
No executive branch official can be deterred from offering frank advice to the president by the possibility that that same official will at some point in the future want to tell the story of what happened in that meeting. The nation’s interest in preserving executive privilege does not extend to voluntary revelations of the president’s own statements. The only interest being served in that case would appear to be Donald Trump’s own personal interest.
Diane Marie Amann, Professor of Law, University of Georgia
It is not entirely clear what the statement means by “privileged communications.” It may or may not refer to the constitutional doctrine of executive privilege. Assuming that it does, the Supreme Court did hold, in a 1974 case involving then-President Richard Nixon, that there is a limited privilege to withhold certain communications among executive branch officials.
But even once this privilege is invoked — and it does not appear clearly to have been invoked here — it cannot prevent disclosure of communications in all circumstances. The Court wrote in the Nixon case that the privilege “must yield to the demonstrated, specific need for evidence in a pending criminal trial,” for instance.
Additionally, if a speaker himself discloses the communications, they are no longer privileged, and others in the conversation also are free to talk. This latter instance has particular relevance here, given that the president himself publicly has referred to his communications with Comey.
Christopher Slobogin, Professor of Law, Vanderbilt University
In order for the privilege to exist, the president must assert it. If the lawyer really believed the privilege was at stake, he would have claimed privilege at the hearing yesterday, since many of Comey’s comments at the hearing were descriptions of his one-on-one conversations with the president. In any event, if Congress, a special prosecutor, or a prosecutor can show a “particularized need” for the statements asserted to be privileged, such as a need for evidence to support a criminal prosecution, and also show that the need outweighs the executive’s desire for secrecy, the privilege does not apply.
In United States v. Nixon, the Supreme Court upheld an order requiring President Nixon to provide evidence over a claim of executive privilege, stating that “to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.”
Peter Shane, Professor of Law, Ohio State University
Conversations with the president about matters within at least the outer perimeters of his official role are subject to claims of presidential communications privilege, the precise category of executive privilege involved in United States v. Nixon. In other words, if Trump had claimed privilege and Mr. Comey had decided to honor that claim, the committee, if intent on obtaining his testimony, might have had to persuade a court that its legitimate need for access to the information was weightier in this context than the president’s general interest in confidentiality. (My guess is that Congress would have won that battle.)
But even if the conversation was privileged in this sense, there is no law prohibiting someone in conversation with the president from revealing that conversation to third parties without the president’s consent. We’re in the realm of norms, not statutes. The information was not classified. Unauthorized disclosures of confidential conversations could, of course, be a firing offense for a federal officer serving at the pleasure of the president. But you can only fire someone once.