The Washington PostDemocracy Dies in Darkness

Trump’s lawyer says Comey violated executive privilege. He’s wrong.

That isn't how executive privilege works at all.

Marc Kasowitz accused former FBI director James Comey, of "actively attempting to undermine this administration with selective and illegal leaks," on June 8. (Video: Reuters, Photo: Ricky Carioti/The Washington Post/Reuters)

A few hours after former FBI director James B. Comey finished testifying before the Senate Intelligence Committee on Thursday, President Trump’s personal lawyer, Marc Kasowitz, suggested that Comey had violated the law. By causing memos about conversations between Trump and Comey to become public, Comey had committed an “unauthorized disclosure of privileged information,” Kasowitz claimed. On a day characterized by hubris remarkable even for Washington, the blatant wrongheadedness of this “privilege” claim still stands out. In fact, executive privilege almost certainly does not cover the Comey memo. And even if it did, disclosing it without authorization isn’t illegal.

Let’s take these in reverse order. As the Supreme Court has recognized, executive privilege derives from the president’s constitutional authority. The privilege serves as a powerful protection against compelled disclosures of internal, confidential executive branch communications — whether in response to court orders, congressional subpoenas or both. It is meant as a defense in those contexts, providing a valid justification for a government officer’s refusal to comply with a demand to testify or produce documents. And even then, it’s a qualified — not absolute — privilege, meaning that it can be overcome in cases in which there’s a sufficiently good reason to compel the disclosure at issue.

Executive privilege is an important shield to protect the president’s power. It is not a sword, though. So where a current or former government employee wants to cooperate and turn over the requested information, the privilege itself won’t — and can’t — stop him or her. For current employees, the threat of losing their job, their reputation or both from disobeying the president will often serve to keep them in line. But for former employees, there’s no such specter (and sometimes, quite the opposite, as Comey’s case underscores). This is why Trump could not have invoked executive privilege to stop Comey from testifying, something the White House tried not to acknowledge by putting out word that he “chose” not to do so. It is not a “violation” of executive privilege to voluntarily disclose materials that could be protected by the privilege, no matter what Kasowitz says.

Were James Comey’s leaks lawful?

Nor is such a voluntary disclosure illegal. Federal law proscribes certain unauthorized disclosures, including of “information relating to the national defense” or information that has pecuniary value to the United States. But it’s hard to see how Comey’s after-the-fact transcription of his relevant conversations with the president fall within either of these provisions. No one is making an argument that the material in Comey’s memos was classified, or that information about a conversation could have the kind of monetary value required to trigger the federal conversion statute. Lawyers might often have to grapple with additional obligations imposed by their state bars about whether information is privileged, but those, too, are administrative requirements — not criminal penalties. And at any rate, Comey wasn’t serving as Trump’s lawyer during their conversations.

So leaking the memos did not somehow violate executive privilege, or federal law. But it’s also worth stressing that Trump would not have had a valid basis for invoking executive privilege in any event. From his own public statements and tweets about his conversations with Comey, Trump has almost certainly waived any potential privilege claim, since he has acknowledged both the existence and substance of the discussions. And even if the president has not waived the privilege here, the Supreme Court ruled in United States v. Nixon that “The President’s broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.” Talking about the conversations with Comey would also have other repercussions for Trump. If, for example, he really does have tapes of these conversations, and Congress or the courts subpoenas them, Trump probably couldn’t successfully claim executive privilege to avoid releasing them.

Of course, none of this means that Comey acted “appropriately” in orchestrating the leak of his memos. Not for the first time, it appears that Comey took it upon himself to breach important norms governing the conduct of senior law enforcement officials — an offense that, perhaps ironically, would have unquestionably justified his termination, if he hadn’t already been fired before doing it. And reasonable minds can and surely will disagree about whether such breaches of protocol were justified under the circumstances.

But nuance in this context matters. Kasowitz and Trump’s defenders are not arguing that Comey only acted inappropriately; they are arguing that Comey acted unlawfully and in violation of executive privilege. Neither claim is correct — and those suggesting to the contrary do and should know better.

Read more:

Sitting presidents can’t be prosecuted. Probably.

Trump or Congress could still block Mueller. I know. I wrote the rules.