Trump’s lawyer says Comey violated executive privilege. He’s wrong.
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.
..Executive privilege is an important shield to protect the president’s power. It is not a sword
.. 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.
.. Federal law proscribes certain unauthorized disclosures, including of “information relating to the national defense” or information that has pecuniary value to the United States.
.. 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.
.. 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.”
.. 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