Years ago, the United States Supreme Court upheld rules established by the executive branch of government (Presidency) outlining the need to keep the conversations the President has with people under his management and supervision private. The Court indicated that executive privilege, while not directly cited in the U.S. Constitution, is a major component of the Constitution’s separations of power canon. Separations of power is one of the most important elements of our Constitution and was ingeniously devised by the founders in order to prevent one branch of government from having too much power.
As you may know, we have three branches of government (legislative, executive and judicial) and all three are endowed with different forms of power in order to provide “checks and balance”. This, essentially, is our failsafe from falling into a dictatorial style of government where one person or branch has absolute power. While separations of power is a good thing, at times it can be inconvenient to deal with. Separations of power, for instance, was the reason that President Obama was unable to push through his agenda for most of the eight years he served in office. Without the support of the Republicans, who at the time controlled Congress, Obama was unable to get any of his legislative agenda passed i.e. separations of power between executive and legislative branches of government. On the other hand, President Trump has been unable to push through his executive order on immigration due to federal courts ruling that Trump’s order is illegal i.e. separations of power between executive and judicial.
With all that said, during the case United States vs. Nixon, the court placed limits on executive privilege. While the court understood that the separations of power was an important component of governance, and that the executive branch had the right to invoke its privilege, the court also recognized that there must be limits of executive privilege. During the Nixon administration, the executive branch (President) attempted to withhold subpoenaed tapes from the federal prosecutor investigating Watergate. The court ruled (to paraphrase) that when criminal matters were at hand, executive privilege could not override judicial proceedings or judicial responsibility. This decision prevents the executive branch from using executive privilege to cover up crimes or obstruct justice.
On Thursday of next week, former FBI Director James Comey is scheduled to testify before the Senate Intelligence Committee about his interactions with Donald Trump regarding the FBI’s investigation of Trump’s former aid, Gen. Michael Flynn, and his connections to the Russian government. Comey is expected to testify that Trump attempted to persuade him on several occasions to drop the Russian investigation into Flynn’s Russian connections. If proven legitimate, Comey’s testimony is evidence that Donald Trump attempted to obstruct justice as it relates to the Russian investigation. This, taken into consideration with the recent revelations that two other officials (Daniel Coats and Michael Rogers) also reported that Trump pressured them, would undoubtedly provide the special prosecutor with enough evidence to charge the President with obstruction of justice – as this would show a pattern of Trump attempting to quash the Russian investigation.
However, recently reports indicate that Donald Trump is considering invoking executive privilege in order to keep Comey from testifying before the Senate. This, in my opinion, is absolutely unbelievable and I find it hard to believe that Trump is actually even considering this. If Trump invokes executive privilege this would throw our country into a Constitutional crisis and without a doubt would require the courts to once again intervene and determine whether the President has the authority to invoke privilege to keep someone from testifying that he may have broken the law.
Furthermore, Trump even considering invoking executive privilege yet again indicates to me that he has something to hide. I don’t understand people who continue to say there is nothing to this Russian investigation. Trump’s behavior alone tells you that there is something that he doesn’t want to be uncovered – otherwise, why would he pressure three people to try and impact the Russian investigation; why would he invoke executive privilege to keep someone from testifying; why did three people in his administration “forget” to disclose their contact with Russian officials; and why does Trump still refuse to release his tax returns? If Trump uses executive privilege to keep Comey from testifying, that would be a clear indication that he is indeed guilty of something and should subsequently quite the Trump supporters who continue to declare Trump’s innocents. This should be an interesting week!