Story highlights John W. Dean: James Comey is not testifying only because the president is not invoking executive privilege

Administration pretending otherwise is not only disingenuous, but also borders on small-bore fraud, Dean says

John W. Dean (@johnwdean) is a CNN contributor and former White House counsel to Richard Nixon. The views expressed in this commentary are solely his.

(CNN) The White House has made an absurd announcement -- that it will not invoke executive privilege to prevent James Comey's testimony before the Senate Intelligence Committee, scheduled Thursday.

Deputy press secretary Sarah Huckabee Sanders first claimed, "The President's power to assert executive privilege is well-established." So is the President's power to issue pardons, but those are for another day. Huckabee Sanders proceeded from her non-sequitur, adding, "However, in order to facilitate a swift and thorough examination of the facts sought by the Senate Intelligence Committee, President Trump will not assert executive privilege regarding James Comey's scheduled testimony."

John Dean

As a leading student and expert on the subject of executive privilege, Mark J. Rozell has written , it is an accepted doctrine when appropriately applied in two circumstances: (1) certain national security needs and (2) protecting the privacy of White House deliberations when doing so serves the public interest.

Clearly, Donald Trump's conversations with James Comey do not fall into either area. Trump was wise not to try to concoct a phony justification for using the doctrine, which at best would have been a delaying tactic and only increased the already-fiendish interest in the specifics of Comey's testimony.

Pretending James Comey is testifying only because the President is not invoking executive privilege is not only disingenuous, it borders on small-bore fraud. To claim you have a power you do not, in fact, possess is dishonest. When executive privilege does exist, it is as the Supreme Court noted in US v. Nixon , always a "qualified privilege," meaning there must be balance between presidential privacy and the public's right to know -- in contrast with other, absolute, presidential privileges, like the "state secrets privilege" (which the Bush/Cheney administration consistently abused, but was unavailable here for Trump).

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