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Saturday, June 3, 2017

It's A Privilege

There's yet another phony story today in the mainstream media about the congressional investigation into supposed coordination by the Trump campaign and Russia during last fall's election.  Today, the big news is that President Trump could assert executive privilege to stop former FBI director Comey from testifying about communications he had with the President.  It's even gotten to the point where the House Democrats announced that any such assertion of privilege would be invalid since Comey no longer works for the federal government.  The whole story, however, is bogus.

First, all that has happened with regard to assertion of this privilege is that presidential advisor Kellyanne Conway was asked if President Trump would assert the privilege and she said that would be up to the President.  That's all it took.  Suddenly, the merchants of outrage were on the airwaves denouncing Trump for asserting executive privilege -- even though he had not done so or said he would.  I realize that the media and the pundits don't pay much attention to facts these days.  Still, there ought to be something there before they all run to condemn the President.  They need some tie to reality.

Second, the House Democrats issued their threat about how Comey no longer could be the subject of executive privilege because he was fired, and that is just plain wrong.  Normally, s privilege does not end when the relationship that gives rise to the privilege ends.  If I, as an attorney, represent a client, my obligation to keep that client's matters secret and our communications confidential does not end even after I stop representing that client.  If a psychiatrist treats a patient and hears his secrets, the privilege that prevents the doctor from disclosing those secrets does not end even if the patient fires the doctor.  It's the same with executive privilege.  A person who has confidential communications with the President does not get the right to disclose what was said over a claim of executive privilege by the President.  That requirement to keep communications confidential stays in place even after the person is no longer employed by the federal government.  It also does not end even if we have a new president.  In other words, policy discussions between Hillary Clinton (as secretary of state) and Barack Obama as president are still subject to claims of executive privilege today.  Now the current president could waive those claims regarding Hillary, but that doesn't matter.  The privilege does not end.

So we have a phony batch of outrage over an event that has never happened based upon a total misunderstanding of how privilege works.  In other words, it's just another day in Washington.

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