Wednesday’s Senate hearing featuring testimony from Acting FBI Director Andrew McCabe, Director of National Intelligence Dan Coats, NSA Director Admiral Michael Rogers, and Deputy Attorney General Rod Rosenstein has not been incredibly productive for those hoping to find incriminating evidence against President Donald Trump or his associates. So far, testimony has ranged from broad assertions that officials did not feel pressured to act inappropriately during investigation, to refusal to even discuss sensitive issues.
Senator Martin Heinrich asked McCabe about any conversations he may have had with former FBI Director James Comey regarding whether President Donald Trump pressured Comey about the investigation of Russian ties to Trump’s campaign, or asked for Comey’s loyalty. McCabe refused to discuss any such conversations he had with Comey, saying it would be inappropriate to do so. Heinrich pointed out that he was not asking for classified information, and asked why it would be improper to talk about his conversations with Comey. McCabe did not give an answer, and simply said he would let Comey talk about it when he appears before the Senate on Thursday.
So does McCabe have any legal basis for refusing to talk about this with the Senate?
Georgetown Law Professor Paul Rothstein told LawNewz.com that executive privilege can keep discussions between the President and other officials under wraps, “but technically it must be claimed by the President.” In this case, McCabe is refusing to address conversations about the President’s discussions with Comey. The White House has gone on record saying that Trump does not plan to use executive privilege to block Comey from talking about any conversations between the two of them.
“Also,” Rothstein said, “a President making public statements on the matter normally waives the privilege,” which would apply to some reported interactions between Trump and Comey, such as Trump’s assertion that Comey told him multiple times that he’s not under investigation. Conversations where the President allegedly asked for Comey’s loyalty and expressed his desire for Comey to drop the investigation of Michael Flynn have been reported my the media, but not confirmed by Trump himself.
Heinrich clarified with McCabe that he was not invoking executive privilege, and asked if there was any other reason why he was refusing to testify about this. McCabe ignored this and continued to just say he would let Comey himself talk about it.
Rothstein did add that there is a privilege that applies to ongoing law enforcement matters that someone in McCabe’s position could claim. However, Heinrich didn’t appear to be asking for information regarding the details of an ongoing law enforcement matter, but discussions between the President and the former FBI Director that could shed light on potential impropriety by Trump in reference to the Russia investigation— but not something that itself is the subject of the investigation.
So basically, it appears that McCabe doesn’t have any legal basis for refusing to address this issue. He’s not alone either, it seems. Also during the hearing, Coats also refused to discuss Comey-related issues. When asked for a legal reason why he wouldn’t talk, Coats said, “I’m not sure I have a legal basis.”
Rothstein says that in such a case, Congress could move to hold McCabe in contempt. With Comey himself testifying on Thursday, however, they’ll likely just wait and see what information they get out of him.
[Image via C-SPAN3 screengrab]