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News Posted on June 23, 2017

Professor Imwinkelried Comments for PolitiFact on Trump and Executive Privilege

Professor Edward Imwinkelried commented for PolitiFact on claims by President Trump’s attorney Marc Kasowitz that former FBI Director James Comey “surreptitiously made unauthorized disclosures to the press of privileged communications with the president” when he leaked a memo he had drafted following a meeting with Trump.

The day after Comey revealed his release of the memo in his testimony before Congress, PolitiFact published an article by contributors Jon Greenberg and Miriam Valverde titled "Fact-checking President Trump's attorney after Comey's testimony."  The article quotes part of an interview of Professor Edward Imwinkelried by Greenberg. 

In the interview, Professor Imwinkelried explained that there is a presidential privilege covering communications between the president and high-ranking federal government officials when the communication relates to a matter within the president's purview.  However, Imwinkelried pointed out that the presidential privilege differs from the military and state secrets privilege.  The latter privilege is absolute: a party seeking information protected by that privilege cannot defeat the privilege by showing a compelling need for the information.  In contrast, the presidential privilege is conditional or qualified and can be overridden by a strong showing of need. 

Imwinkelried added that the presidential privilege can be waived.  If the holder discloses not only the fact of a privileged communication but its substantive content, the holder's disclosure effects a waiver.  In the instant case, there would be at least a partial waiver, since President Trump made public statements about the contents of his conversation with then Director Comey. 

Professor Imwinkelried is a world-renowned evidence expert who has published extensively in the field.