Trump asserts executive privilege over Mueller report: Here’s what happens next

Trump asserts executive privilege over Mueller report: Here’s what happens next
Robert Mueller and Donald Trump (Wikimedia Commons)

President Donald Trump has asserted executive privilege over special counsel Robert Mueller’s final report for the Russia investigation, which Attorney General William Barr recently released in redacted form. But that doesn’t mean his assertion is guaranteed to hold up.

In a May 8 letter to Rep. Jerrold Nadler, chairman of the House Judicial Committee, Assistant Attorney General Stephen Boyd wrote that he was “disappointed that you have rejected the Department of Justice’s request to delay the vote of the Committee on the Judiciary on a contempt finding against the Attorney General this morning.”

Boyd, in his letter, goes on to say, “This is to advise you that the president has asserted executive privilege over the entirety of the subpoenaed materials.”

Boyd’s letter escalates the battle between the Trump White House and Democratic investigative committees in the House of Representatives. House Speaker Nancy Pelosi has maintained that she opposes impeachment of Trump. But with Trump vowing to resist all subpoenas and Boyd’s letter to Nadler invoking executive privilege, House Democrats who have been on the fence about impeachment of Trump or flat-out opposed to it might be moving more in that direction.

In the U.S., presidents can invoke executive privilege and withhold documents from other branches of government if they assert that it is a matter of security or protection for those involved. Previous presidents who invoked executive privilege range from Bill Clinton (who invoked it 14 times) to George W. Bush (who invoked it six times) to Richard Nixon.

On Wednesday, the House Judiciary Committee planned a contempt vote on Barr for refusing to turn over an unredacted copy of Mueller’s report as well as Mueller’s investigative files. And Nadler has denounced Trump’s executive privilege assertion as a clear escalation of his administration’s “blanket defiance of Congress’ mandated duties.” The next step for the House of Representatives is a full House vote on holding Barr in contempt.

History shows that Trump’s executive privilege assertion with the Mueller report can not only be challenged, but defeated as well.

Some of Bush’s executive privilege assertions, for example, were ultimately rejected. And Trump’s assertion of executive privilege via Boyd will no doubt be challenged and fought by Democrats in the weeks ahead.

Trump, using executive privilege arguments, has been saying that neither Mueller nor former White House Counsel Don McGahn should testify before Congress. But according to conservative attorney George Conway, Trump has already waived executive privilege twice. This means, based on Conway’s analysis, that Trump’s executive privilege claims with Mueller and McGahn are unlikely to hold up — and that ultimately, the president will not be able to prevent either Mueller or McGahn from testifying.

In an interview with the Washington Post’s Jennifer Rubin earlier this month, legal expert Laurence Tribe stressed, “there is no way Trump can stop Bob Mueller from testifying. There is no executive privilege between them and obviously, no attorney/client privilege—and Mueller doesn’t even work for Trump.” According to Tribe, Trump “has no conceivable basis to stop Mueller from testifying.”

One of President Bill Clinton’s executive privilege assertions came in 1998, when he tried to prevent White House aides from testifying during the Monica Lewinsky scandal. But that assertion was legally struck down, indicating that Trump’s assertion is hardly bulletproof.

Barack Obama, during a 2007 interview with CNN, criticized the Bush Administration for having a “tendency” to “try to hide behind executive privilege every time there’s something a little shaky that’s taking place.” And sure enough, some of Bush’s executive privilege assertions did not hold up — which, like Clinton’s defeated executive privilege assertion during the Lewinsky scandal, indicates that by no means is Trump’s executive privilege assertion with the Mueller report and the Russia investigation guaranteed to hold up and withstand the United States’ system of checks and balances.

Executive privilege assertions, from Clinton to Bush, Jr., aren't written in stone; their survival is not guaranteed — and that includes Trump’s.

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