When word got out that former FBI Director James Comey was chomping at the bit to give his version of the events leading up to his firing by Donald Trump, it initially looked like a risky proposition. It looked even more so when he hinted he would only testify in public, not in a classified hearing.
But it turns out that Comey may be crazy like a fox. According to several legal experts, Trump’s shifting narrative on what led him to fire Comey may have knocked down any potential legal measures Trump could have used to keep Comey from testifying about those events.
In case you missed it, Trump claims that Comey personally assured him that he was not the target of any investigation into links between his campaign and Russia–not once, but three times. He also infamously claimed that it was all on tape.
Theoretically, Trump could have asserted executive privilege to keep the specifics of those conversations out of the public record. But constitutional scholar Laurence Tribe, a professor at Harvard Law, believes that Trump may have literally talked himself out of that privilege.
By saying Comey had told him 3x that FBI wasn't investigating his campaign's links to Russia, T waived executive privilege wrt T/C xchanges
— Laurence Tribe (@tribelaw) May 11, 2017
Veteran Washington journalist Jessica Yellin quickly realized the implications–Trump may have made it a lot easier to get to the bottom of this comic opera.
— Jessica Yellin (@JessicaYellin) May 12, 2017
Tribe agreed, and pointed out that this doesn’t just open the door for Congress to delve further into this matter.
Absolutely. Trump now can't invoke exec priv to stop Comey from testifying in Cong or a court to what he & Trump actually said to each other https://t.co/LDlM5A9GeC
— Laurence Tribe (@tribelaw) May 12, 2017
Stephen Vladeck of the University of Texas, also a constitutional scholar, told ThinkProgress that when a president talks or tweets about a topic, he effectively waives executive privilege on that matter. Vladeck cautioned that while “it won’t stop” the White House from trying to invoke executive privilege, every public comment or tweet about it will make it that much harder for Trump and friends to prevail.
Congressman Raja Krishnamoorthi of Illinois thinks that there’s another way around any claim of executive privilege. Krishnamoorthi, who holds the congressional seat once represented by now-Senator Tammy Duckworth, knows something about public corruption; from 2006 to 2007, he was one of the charter members of the anti-corruption unit in the office of state attorney general Lisa Madigan.
Krishnamoorthi told ThinkProgress that based on his experience, executive privilege does not apply when there is evidence of illegal or unethical conduct. Specifically, Krishnamoorthi believes that if Trump were to give Comey an unlawful order, or if Trump ordered the Russia probe shut down, it would potentially amount to “evidence or information concerning potential illegality.”
Trump may have already talked his travel ban out of existence; many of the federal decisions blocking its enforcement cited his own statements during the campaign. This may be the second time that his statements could cost him dearly. And depending on the circumstances, it could potentially open the door for impeachment.
(featured image courtesy Andrew Harrer, pool photographer)