On Wednesday morning, President Trump, via the Department of Justice, announced that he would be declaring executive privilege with regard to the redacted Mueller report. The announcement came after Democrats began to move forward with their planned contempt vote against the Attorney General, William Barr, for supposed failure to comply with their subpoena for the entire Mueller report, including redacted materials. Barr has claimed that Federal Rule of Criminal Procedure 6(e), which prevents the disclosure of grand jury information. As Hans von Spakovsky of the Heritage Foundation states, “unless Congress’s request for Rule 6(e) grand jury material falls squarely into one of the statutory or court-created exceptions, the attorney general – any attorney general – is prohibited from disclosing that material to Congress. And the congressional request doesn’t fit any of the exceptions.”
The DOJ made the actual announcement, with Assistant Attorney General Stephen Boyd taking the lead, explaining:
As we have repeatedly explained, the Attorney General could not comply with your subpoena in its current form without violating the law, court rules, and court orders, and without threatening the independence of the Department of Justice’s prosecutorial functions…Unfortunately, rather than allowing negotiations to continue, you scheduled an unnecessary contempt vote, which you refused to postpone to allow additional time for compromise.
White House Press Secretary Sarah Huckabee Sanders stated, “Faced with Chairman Nadler’s blatant abuse of power, and at the Attorney General’s request, the President has no other option than to make a protective assertion of executive privilege.”
In response to the declaration of executive privilege, the House Judiciary Committee voted to hold Barr in contempt. The contempt charges next move to a full committee vote, before moving to the full House of Representatives.
Democrats are effectively making one case about President Trump and his attorney general; Trump and his attorney general are making the converse case. First, we should examine both cases. Then, we’ll examine whether executive privilege can be invoked to protect the material at issue here.
Democrats’ Case. Democrats essentially argue that the redacted portions of the Mueller report might justify an impeachment move. They didn’t get what they were looking for in the full Mueller report available to the public; Mueller’s team, despite their obvious antipathy toward President Trump’s behavior, didn’t recommend indictment, and Barr didn’t move forward with an obstruction charge. Despite the hew and cry emanating from prosecutors who claim they’d move forward with such charges if they could, they can’t – and the truth is that they likely wouldn’t. The evidence for intent simply isn’t strong enough. But Democrats have now moved the goalposts – now they say that the hidden sections are where the goodies lie. Thus, Barr covered them up.
This argument isn’t particularly plausible on its face, given Mueller’s findings, the availability of the 448-page report, and the fact that Democrats haven’t moved toward impeachment in any serious way since the report. But Democrats can always count on President Trump to look as guilty as possible, and Trump has obliged: he has suggested that he might block Congressional testimony by Robert Mueller and by former White House counsel Don McGahn. There’s no reason to do this, Democrats argue, unless Trump has something to hide. Thus, Barr’s activity is part of a pattern, not a well-motivated attempt to obey the Federal Rules of Criminal Procedure.
Trump’s Case. Trump argues, correctly, that the Mueller report spent years and tens of millions of dollars to come to a thorough conclusion. That conclusion is public. The vast bulk of the material is public. Now Democrats want to rehash that material, dredge up grand jury information that by law should remain secret, and use it as a club against him. Trump is simply irritated by the continued focus on Mueller, feels this is a charade – which, of course, it is – and wants McGahn not to answer questions for the same reason. This isn’t a cover-up. It’s just another example of Trump being annoyed by an investigation that has wasted time and money and sapped his presidency of popularity.
As for Barr, Trump’s assertion of executive privilege isn’t a cover-up attempt. It’s Barr asking Trump to shield him from a contempt charge based on Barr following the law.
Which case you find most plausible largely depends on how you think of Trump: nefarious schemer, or annoyed and volatile president? The latter seems eminently more plausible than the former, given Trump’s long record of taking action out of pique rather than planning (see Comey, James or alternatively, the entire Mueller report).
So, what about the assertion of executive privilege? Here’s the problem: Barr can be completely right about the Federal Rules, but executive privilege likely doesn’t apply here. There are two types of executive privilege: deliberative process privilege and communications privilege. Both types of privilege create a presumption of privilege for the president, but that presumption can be overruled by a court.
Communications privilege applies to those who communicate with the president, or to communications “authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significant responsibility” – so, not the White House janitor. The communications must occur “in performance of responsibilities” and “in the process of shaping policies and making decisions.”
The argument for Trump here is that people who testified before Mueller didn’t waive that privilege when they testified to him – Mueller is a member of the executive branch, not a member of the legislative branch. Noah Feldman of Harvard Law School says that this shouldn’t matter – that Barr should have redacted the appropriate sections of the Mueller report explicitly on executive privilege grounds so as not to waive the privilege. In fact, when Barr originally released his summary of the Mueller findings, he explicitly said that Trump had not asserted executive privilege over information contained in the Mueller report:
Because the White House voluntarily cooperated with the Special Counsel’s investigation, significant portions of the report contain material over which the President could have asserted privilege. And he would have been well within his rights to do so. Following my March 29th letter, the Office of the White House Counsel requested the opportunity to review the redacted version of the report in order to advise the President on the potential invocation of privilege, which is consistent with long-standing practice. Following that review, the President confirmed that, in the interests of transparency and full disclosure to the American people, he would not assert privilege over the Special Counsel’s report. Accordingly, the public report I am releasing today contains redactions only for the four categories that I previously outlined, and no material has been redacted based on executive privilege.
That makes it difficult to assert privilege now, although Barr could presumably argue that his comments only apply to the unredacted portion of the report.
How about deliberative process privilege? That privilege covers, according to appellate courts, “documents and other materials that would reveal ‘advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” That would presumably cover the Mueller report. But the deliberative process privilege typically does not apply when there is “reason to believe that the documents sought may shed light on government misconduct.” Democrats can plausibly claim that this is the case.
So, even though Trump and Barr are right on the merits – the Democrats should not see the underlying grand jury material under the Federal Rules – privilege isn’t the appropriate method of preventing the dissemination of the materials. That’s what the courts are likely to find.
With that said, to pretend that this is some sort of massive coverup or Constitutional crisis rather than a clash between the legislative and executive branches in a grey area of the law would be to tar and feather Trump on the basis of very little evidence. And if it’s a crisis at all, it’s a crisis manufactured by Democrats who are wildly disappointed with the results of the Mueller report, and can’t let it go.