As Comey Testimony Looms, Here's Every President Who's Used Executive Privilege To Deny Congress Information

President Donald Trump may exercise a rarely used presidential legal authority to prevent former FBI director James Comey from testifying about conversations he had with the president in front of the Senate next week. Comey has said Trump pressured him to end an ongoing FBI investigation into potential ties between Trump’s former security advisor Michael Flynn and Russian officials.

If Trump chooses, he could attempt to invoke executive privilege to keep Comey from testifying. Executive privilege is a controversial legal principle that allows the president and high-level members of the executive branch to withhold information from Congress, the judicial branch and the public. The idea of executive privilege is based strictly on precedent, as it does not appear in the U.S. Constitution.

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221 Years Of Executive Privilege

While executive privilege was made famous during the Watergate investigation of then-President Richard Nixon, a number of presidents have invoked executive privilege:

• George Washington (1796) refused to provide the House of Representatives with documents related to Jay Treaty negotiations with Great Britain.
• Thomas Jefferson (1809) refused to testify in the treason trial of Aaron Burr.
• Andrew Jackson (1833) refused to provide documents to the Senate related to the removal of deposits from the Second Bank of the United States during the Bank War, a political battle over the legitimacy of the Second Bank.
• Harry Truman (1948) refused to cooperate with the House of Representatives during the Alger Hiss investigation related to potential Russian spying.
• Dwight Eisenhower (1954) blocked Senate access to “any data about internal conversations, meetings, or written communication among staffers, with no exception to topics or people" during the anti-communism Army-McCarthy hearings.
• Richard Nixon (1974) attempted to invoke executive privilege to prevent Congress from gaining access to audio recordings made in the White House related to the Watergate break-in. In United States v. Nixon, the Supreme Court ruled that the public’s interest in the pursuit of criminal prosecution took precedence over the president’s general need for confidentiality and ordered the release of the tapes.
• Ronald Reagan (1981–1989) invoked executive privilege three times: to deny access to information related to Canadian oil leases, to withhold documents related to Superfudn enforcement practices and to withhold internal memos related to the nomination of Justice William Rehnquist to the Supreme Court.
• George H.W. Bush (1991) invoked executive privilege to deny Congress access to documents related to an investigation into the Navy aircraft program.
• Bill Clinton (1998) invoked executive privilege 14 different times during his impeachment trial for perjury related to the Monica Lewinsky scandal. A federal judge denied Clinton’s attempt to prevent White House aides from testifying.
• George W. Bush (2001–2007) invoked executive privilege six times, withholding information related to FBI misuse of organized crime informants, Vice President Dick Cheney’s meetings with energy executives, former presidential counsel Harriet Miers and political director Sara Taylor, and the death of Army Ranger Pat Tillman. Bush also denied a subpoena calling for senior advisor Karl Rove to testify in front of the Senate.
• Barack Obama (2012) invoked executive privilege to withhold documents related to the Operation Fast and Furious gun-trafficking controversy and to withhold documents related to the implementation of the “net worth sweep” of Federal National Mortgage Association FNMA and Federal Home Loan Mortgage Corp FMCC.

Trump reportedly may have a tough time invoking executive privilege regarding his conversations with Comey. Trump has repeatedly discussed details of the conversations with Comey in public interviews. Therefore, it may be difficult to make the case that the content of the conversations should be withheld now that Comey is set to give his version of the story in front of Congress.