Lawyers and journalists of a certain vintage may develop a case of bad memories and the shakes today when they hear two leaden words from the Nixon era raised once again in Washington: executive privilege. Despite its decision against asserting executive privilege to block or redact elements of the Mueller report, the Trump White House served notice that this token of cooperation with Congress probably will not go any further, as the New York Times reports:
The White House stepped in on Tuesday to stop Donald F. McGahn II, the former White House counsel, from handing over documents subpoenaed by House investigators because President Trump may want to assert executive privilege over them.
The current White House counsel, Pat Cipollone, instructed the House Judiciary Committee to redirect to the White House its requests for the records, which relate to key episodes of possible obstruction of justice identified by Robert S. Mueller III, the special counsel. His move was certain to enrage Democrats who are increasingly at odds with the Trump administration over access to witness and records that they say they need to conduct legitimate investigations.
Technically, at this stage the White House is simply arguing that McGahn was temporarily given the documents the House is trying to secure for the purpose of preparing for his 30-hour-plus “interview” with the Mueller team; they still belong to the White House, which alone can decide whether to disclose them beyond the Executive branch (to which Mueller officially belonged). If the Judiciary Committee directly asks the White House for them, at that point executive privilege — a murky doctrine emanating from the constitutional separation of powers that shields intra–Executive branch communications — would likely be asserted.
As the Times indicates, Judiciary Committee chairman Jerrold Nadler and other members aren’t going to go quietly on this subject, if only because McGahn is so very close to the heart of the Mueller report’s evidence of Trump’s apparent efforts to obstruct justice:
The subpoena requested from Mr. McGahn all documents and communications on more than 30 subjects, including all the major episodes that Mr. Mueller examined to determine whether the president obstructed justice. Among them were: the firing of James B. Comey as F.B.I. director; attempts to fire Mr. Mueller; and the president’s effort to have Mr. McGahn write a false document recanting what he told investigators.
The House could approach the White House for the documents and then slug it out in court in seeking to enforce a subpoena against a formal claim of executive privilege. Or it could subpoena McGahn to testify without securing the documents. It’s not at all clear that the White House would have the power to block McGahn from testifying, since he no longer works for the government. At this point, though, McGahn would prefer to lie low and let the lawyers at both ends of Pennsylvania Avenue slug it out, and possibly negotiate some agreement on documents and testimony, as the Washington Post reports:
William Burck, McGahn’s attorney, wrote the committee that his client is caught between demands from the White House and Congress, and will not turn over the records at this point. Instead, he said, McGahn will allow the White House to proceed in its plans to negotiate directly with the committee over the subpoena for records.
If and when executive privilege is claimed — which seems inevitable at some early point in the House’s effort to dig beneath the limited information in the redacted Mueller report — you will hear Democrats and some legal experts argue that Trump waived the privilege in cooperating with Mueller by agreeing to the report’s release without additional White House redactions — or even by tweeting about the underlying facts more recently.
As former Justice Department official Jonathan Shaub explains in a deep dive into executive privilege (and the related argument that current Executive branch officials are immune from compelled congressional testimony altogether), time is not on the side of Congress in this fight:
As I and a number of others have explained in recent days, the chances of this or other congressional oversight subpoena disputes being resolved by an appellate court before the next election are slim. So the executive branch view may again prevail by default.
Nor would the initiation of formal impeachment hearings change the legal dynamics involved in an executive privilege claim. The White House could and almost certainly would choose not to cooperate, and any subpoena or contempt of Congress citation would land in court.
Unfortunately for the White House, though, the information Congress seeks could come out in any event, perhaps via McGahn (whose attitude toward his former employers probably wasn’t improved by Trump lawyer Rudy Giuliani’s recent attacks on his integrity), or perhaps through others. And once it’s out, executive privilege means nothing in the court of public opinion, which will hold its ultimate hearing in November of 2020.