Sean Erenstoft Discusses Executive Privilege: If Tapes of Trump’s Conversation with Comey Exist, He Can Be Forced to Turn Them Over – Despite Claims of Executive Privilege

The President’s tweets may have sunk his argument for executive privilege; and the Supreme Court’s prior rulings in the Watergate controversy may provide ample precedent. Here’s why.

Albeit unlikely to admit that his bluff has been called and he came up short, Donald Trump probably won’t concede that no tapes exist. Indeed, Trump’s threat:  “James Comey better hope that there are no ‘tapes’ of our conversation before he starts leaking to the press,” doesn’t exactly promise that tapes do exist.  Indeed, most people believe that no tapes exist and that Trump intended on intimidating private citizen, James Comey from discussing the sordid details of his meetings with our president.

If found not to exist, Trump’s bluff will have failed BIGLY. I would say that the bluff failed anyway since Comey testified in early June, 2017 despite the threat.  And to add credibility to Comey, he prayerful quipped during his testimony:  “Lordy, I hope there are tapes.”

Trump’s next play, however, in the unlikely scenario that tapes do exist, is whether the tapes are privileged.

The history on this subject is eerily similar to the Watergate controversy in which special prosecutor, Archibald Cox sought to subpoena White House tapes from Nixon (which did exist). The tapes were thought to contain conversations that pertained to the Waterhouse burglary of the Democratic National Committee and its cover-up.  Nixon, citing executive privilege, refused to turn over tapes and concurrently sought to fire the special prosecutor by leaning heavily on the two most-senior Department of Justice officials who both refused to fire Cox.

Ultimately, the two most-senior officials resigned rather than carryout Nixon’s transparent effort to frustrate the Watergate investigation. That left Solicitor General, Robert Bork (later nominated for the Supreme Court during the Reagan era and denied the appointment by the U.S. Senate) who fired Cox.  However, the effort to obtain the Whitehouse tapes didn’t end.  Later, the Supreme Court essentially ruled that claims of executive privilege by the president can be overcome, especially when the information claimed on the material is relevant and potentially material to an ongoing criminal investigation.

While the burglary of the DNC was the initial focus of the investigation, it was Nixon’s alleged cover-up that sank his presidency. Hence the old adage: “Sometimes the cover-up is worse than the crime.”  That was certainly the case for Nixon in the Watergate matter.

With regard to Trump, the initial focus of the investigation was (and remains) the Russian intermeddling with our 2016 election. However, the special prosecutor is investigating a number of facets to that initial crime – including what appears to be a cover-up.  The rolling disclosures about Trump’s senior staff’s contacts with key Russian operative during the 2016 campaign speak to the issue of cover-up.  Most certainly, if the revelations had innocent explanations, one would have expected a full-press public relations effort by the Whitehouse to distance itself from the alternative narrative of corruption, collusion and cover-up.  But, as of today, the corruption has spread to a number of top-players in the Trump camp who appear to have concealed their contacts with Russians under surveillance by our own government.

About the privilege: Executive privilege is not explicitly mentioned in the Constitution but it is implied in the concept of “separation of powers.”  In essence, the Constitution gives the executive branch its own sphere of influence that enables it to operate independently of the other two branches of our government.

However, the Supreme Court confirmed the legitimacy of an executive privilege but agreed that it was not a blanket form of power encompassing any executive matter that that the chief executive chooses to protect. Indeed, it’s a “qualified privilege” based on a sliding scale.  Chief Justice Warren Burger stated in the case of United States v. Nixon that executive privilege would most effectively apply when executive oversight can be said to impair the president’s national security agenda.  Most presidents since Nixon have pushed the limit of executive privilege only to concede by volunteering the material.  Trump may very well test the issue with his newly minted Supreme Court.

But. . . privileges are only sacrosanct as long as the person exercising the privilege maintains privacy. Trump can be said to have “waived” the privilege already – thereby rendering any future claim of privilege moot.  Here’s how:

Not only has Donald Trump tweeted about his conversation with James Comey, but he also failed to assert the privilege prior to James Comey’s public testimony before the Senate Intelligence Committee. The waiver of the privilege can be expressed and implied.  Trump may have waived under both propositions.

In the meantime, Trump has promised the public to address the existence of any recordings in the coming weeks. I’m guessing that he will nonetheless leave it vague as to whether such recordings exist and refuse to admit that his gambit to intimidate James Comey was just that – a bluff intended to silence a witness to corruption, collusion and cover-up.

Sean Erenstoft is a civil rights advocate in Los Angeles, California. He served as a prosecutor in both Orange and Los Angeles counties and spent two decades handling civil rights matters involving the government.  Sean Erenstoft formed Hard Corp. Media and continues to contribute comments and articles as a freelance journalist.  His blogsite is located at www.superiorcourtblog.com and he can be reached at www.erenstoft.com
Sean Erenstoft can be reached at (310) 613-8887.