When FBI investigator James Comey was fired in the middle of an investigation on former National Security Advisor Michael T. Flynn, it caused quite the uproar. Not long after, Comey claimed that President trump had asked him to stop his investigation before he was fired. Now, Comey is expected to testify this coming Thursday, first at 10:00 a.m. in a public setting, and then again at 1:00 p.m. in a private hearing. Trump, however, is considering using Executive Privilege to keep Comey from testifying.
Executive Privilege: crucial to American democracy
Although Trump's claim to executive privilege in this situation is highly controversial, it was put into place in order to allow American democracy to function, and its existence is crucial. It holds that all conversations between a sitting president and their cabinet members must be able to be completely confidential.
The reasoning behind this is that, as executive commander in chief, the president must find new ways to solve problems, which can be unconventional, controversial, and which many people would not openly discuss in a public setting. Therefore, executive privilege makes it clear that when a president is speaking with cabinet members, it is to be completely private - that way, the president can be entirely candid.
Trump cannot use executive privilege against Comey
But even crucial powers need to be kept in check. Trump, according to many legal experts, cannot actually use it against Comey in this situation. This is for three reasons. The first is that Comey is no longer a federal employee. Executive privilege does not extend to private citizens, and when Trump fired Comey, he became one.
Were Comey still working for the federal government, this would not apply, however.
Second, executive privilege is meant to protect the confidentiality of presidential communications with cabinet members. Although theoretically, Trump, therefore, has the right to keep Comey from releasing information from confidential conversations, Trump has already broken this confidentiality himself.
Trump has written three letters which now fall under public domain on the subject, spoken about his conversations with Comey on national television in an interview, and even tweeted threats to Comey based on the conversations. While executive privilege would cover anything we haven't already heard about from Trump, it seems quite likely that Comey will be testifying on the contents of those conversations which we have heard about.
Finally, although the president is powerful, there is a limit to Trump's power. Should there be an investigation with reasonable evidence to show that there has been government misconduct, and should the testimony be evidence on the subject, executive privilege would not apply.
It has been decided in previous courts that the president cannot obstruct an investigation in that way, and so, given that the investigation for which Comey is testifying is to determine whether Trump is guilty of misconduct or not, the president does not have the power to stop him.
Ultimately, as much as our POTUS might wish to believe otherwise, Trump does not hold ultimate power within the United States. All government employees must be carefully watched, and their power must be continuously controlled. Comey testifying is not a breach of confidentiality, and it is necessary for the functioning of the American government.
