WASHINGTON — White House press secretary Sean Spicer said “obviously it’s got to be reviewed” whether the administration will invoke executive privilege to try to stop former FBI Director James Comey from publicly testifying next week about conversations he had with President Trump.
Senate Intelligence Committee Chairman Richard Burr (R-N.C.) and Vice-Chairman Mark Warner (D-Va.) announced that Comey will testify Thursday at 10 a.m. in open session, followed by a closed session with committee members at 1 p.m.
The former FBI director, who turned down a request to testify from the Senate Judiciary Committee, first talked with special counsel Robert Mueller about the parameters of what could be discussed in open session. Comey is reportedly prepared to talk about his closed-door conversations with Trump — and the memos he reportedly kept of those interactions.
Trump allegedly asked Comey to “let go” of the investigation into Flynn and his Russia ties, a meeting that Comey chronicled in a two-page memo, the New York Times reported two weeks ago. The story said the Oval Office meeting took place the day after Flynn resigned in February. The existence of the memo, written by Comey “immediately” after the meeting, was shared “with senior FBI officials and close associates,” according to the report.
Comey will also likely field questions about reports that, just after taking office, Trump asked the FBI director for his loyalty. As in past hearings when he was still head of the FBI, Comey isn’t expected to reveal details of the ongoing investigation into potential ties between the Trump camp and Russia.
At today’s press briefing, Spicer noted “the date for that hearing was just set” and the administration has not come to a conclusion on executive privilege. “I have not spoken to counsel yet. I don’t know what — what that — what they’re going to — how they’re going to respond,” he said.
Benjamin Wittes, a senior fellow at the Brookings Institution, editor in chief of the Lawfare blog and friend of Comey, tweeted that an “assertion of privilege over specific communications would also face several distinct problems.”
“Some of the communications, as reported in the press at least, are not obviously covered by the privilege to begin with, for example. In other cases, e.g. conversations the President has discussed publicly in his letter to Comey and on NBC, a privilege is likely waived. Moreover, worth noting that even with respect to privileged material, the privilege is qualified and yields to the needs of grand jury,” Wittes said. “So there’s no way the President can prevent Comey’s testimony in the context of Mueller’s investigation, even if he can do so at SSCI. And finally, the privilege covers only communications. It has nothing to say about material about which Comey has first hand knowledge.”
Spicer has been referring all questions about the Russia investigation, including about senior advisor Jared Kushner’s conversations with Russian banker Sergey Gorkov in December, to Trump’s outside counsel Marc Kasowitz.
The press secretary was asked why the White House won’t answer questions on Russia even as the president keeps tweeting about it.
“So now it is reported that the Democrats, who have excoriated Carter Page about Russia, don’t want him to testify. He blows away their case against him & now wants to clear his name by showing ‘the false or misleading testimony by James Comey, John Brennan…’ Witch Hunt!” Trump tweeted Wednesday.
Spicer said the White House is “focused on his agenda and all — going forward, all questions on this matter will be referred to outside counsel.”
Spicer also said there’s no update on whether Trump is close to selecting a new FBI director.
This story was updated at 8 p.m. EST