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Friday, June 09, 2017

This executive privilege nonsense

by digby

In case you were wondering whether Trump and his lawyers have a case against Comey for allowing his memos to become public --- no. Consider that Comey has been up close and personal in every presidential scandal since the mid-90s and is a former Senate Whitewater committee counsel, Acting Attorney General, US Attorney and FBI director. He's pretty well-informed on these issues.

But be that as it may, the wingnuts are screeching about how they're going to put him in jail for what he did. Or something. This WaPo piece explains:

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.
Look at it this way. If this privilege existed the way they are saying it does, there would be no White House  memoirs written by anyone but the president himself.

This is one reason why Trump made a big mistake in firing Comey. It freed him to talk in a way that he couldn't when he was the FBI director. And the way they did it made an enemy of him in a big way. This was very, very stupid. But when you have people who have zero experience and instinct for bureaucratic politics this is what happens.

Trumpie ran a nice little family business using money he inherited from his daddy and borrowed from mobsters. His experience is basically useless as president. (Well, I should amend that to say that his experience as a conman and TV reality star did help him win over some uninformed voters. So, that's something.)