President Donald Trump borrowed from President Richard Nixon’s failed Watergate playbook on Wednesday by invoking a sweeping claim of executive privilege, seeking to withhold from Congress the unredacted report of special counsel Robert Mueller and its underlying evidence. Trump’s legally flimsy privilege claim was asserted as a justification for Barr’s noncompliance with the House Judiciary Committee’s subpoena for the report and evidence. But history suggests that it won’t work. First, if challenged in court, Trump’s belated invocation of executive privilege after several of his key aides had already testified in Mueller’s probe is doomed to failure because aspects of their testimony are already public in the redacted Mueller report. And executive privilege, according to the Supreme Court, is designed to protect candid, private conversations between the president and his advisers; prior to taking office, Trump was not the president, and the Mueller report covers a significant period of time before his inauguration. Furthermore, Trump’s privilege claim seeks to withhold the testimony of every witness cited in Mueller’s report. But the footnotes in Mueller’s redacted report identify multiple witnesses who never worked in the administration, including: Henry Oknyansky, a Florida-based Russian who claimed to have derogatory information on Hillary Clinton; Andrei Rozov, chairman of a Russian real-estate connected to the proposed Trump Tower Moscow project; Dimitri Simes, the president of Center for the National Interest (a U.S. think tank with Russian ties); Richard Burt, a board member of CPI; Petr Aven, chairman of Russia’s largest commercial bank, Alfa-Bank; former Trump Organization lawyer Michael Cohen; and former campaign adviser George Papadopoulos. Is Trump really asking Congress to believe that he had confidential official communications with all these witnesses — including the Russian financiers and two people convicted of criminal offenses whom he has disavowed — during his presidency? Of course not. But that alone reveals the frailty of his executive privilege invocation. In light of that, the Judiciary Committee voted (along party lines) on Wednesday to recommend that the full House hold Barr in contempt for noncompliance with the subpoena. Trump’s team this week also touted a sweeping, de facto executive privilege claim to prevent former White House counsel Donald McGahn from producing documents subpoenaed by the House Judiciary Committee. McGahn was a central witness in Mueller’s investigation outlined in the second section of the report, addressing accusations that Trump directed McGahn to fire Mueller — something McGahn says he refused to do. SIGN UP FOR THE THINK WEEKLY NEWSLETTER HERE Trump’s current White House counsel Pat Cipollone, in a letter Tuesday, ordered McGahn not to comply with a Judiciary Committee subpoena for documents. For justification, Cipollone’s letter alluded to the doctrine of executive privilege without formally invoking it. Trump’s efforts parallels Nixon’s ultimately unsuccessful effort to prevent his White House lawyer, John Dean, from being questioned by congressional investigators as well as his efforts to avoid releasing tapes of his conversations that were subpoenaed by the special prosecutor. Those bogus claims of executive privilege were ultimately Nixon’s undoing — and Trump’s may not end up any better for him. Like Nixon, Trump is trying to use an omnibus claim of executive privilege as leverage to constrain the scope of congressional questioning. In a March 11, 1973, Oval Office meeting — a year before the impeachment investigation began — Nixon predicted that the Senate would question his claim of executive privilege if Dean were required to testify. If that occurred, Nixon said “we’ll let it go to the [Supreme] Court. Fight it like hell.” However, his White House advisers worried that public opinion would turn against Nixon if he appeared to stonewall congressional subpoenas. On March 22, 1973, H.R. Haldeman, Nixon’s chief of staff, referring to the anchor of the "NBC Nightly News" at the time, warned Nixon about “the guy sitting at home listening to John Chancellor say ‘the president is covering this up’” by invoking the “widest exercise of executive privilege in American history and all that. He says, ‘What the hell’s he covering up? '” Nixon took note and modified his strategy to assert only a limited waiver of executive privilege as part of a bargaining ploy with Senate investigators. According to the House Judiciary Committee’s final report “the president discussed ways to use executive privilege to negotiate with the committee for a compromise on conditions governing staff appearances and the bounds of the committee’s investigation.” It didn’t work: In televised hearings, Senate committee questioning disclosed the existence of the White House taping system and Dean’s detailed accusations about the Watergate cover-up. And then Nixon’s executive privilege claim was unanimously rejected in July 1974 by the Supreme Court, which ordered him to produce White House tapes subpoenaed by the special prosecutor. Nixon’s lawyers first told the court that communications between the president and his advisers were absolutely privileged and courts were powerless to order their disclosure. The Supreme Court was unimpressed, holding, “We therefore reaffirm that it is the province and duty of this Court ‘to say what the law is,’” citing the seminal 1803 opinion in Marbury v. Madison. After confirming its authority to rule on Nixon’s executive privilege claim, the Supreme Court found that executive privilege did not supersede Nixon’s duty to comply with the subpoena issued by Special Prosecutor Leon Jaworski. Following the 8-0 ruling, Nixon had to produce the “smoking gun” tape recording that he had tried to conceal under the cloak of executive privilege. The House Judiciary Committee’s final report also faulted Nixon’s claim of executive privilege, concluding that they were “without merit.” In that report, the committee declared: “If a generalized presidential interest in confidentiality cannot prevail” to defeat a trial subpoena in a criminal case, “neither can it be permitted to prevail over” the needs of Congress for all relevant facts in the impeachment process. More damaging was the committee’s assessment that Nixon’s 1973 invocation of executive privilege to limit the scope of his former aides’ testimony evidenced his personal involvement in the Watergate cover-up. “President Nixon’s efforts to cover up the facts of Watergate included an effort to narrow and divert the [Senate committee’s] investigation," the report stated. “He attempted to extend executive privilege to former aides and attempted to invoke the doctrine to prevent their testimony.” Trump’s lawyers seem to believe that taking the same actions as Nixon will have different results for their client. The courts and the House, though, may have other ideas.<doc-sep>Conservative jurists have ferociously criticized the idea of “unenumerated” constitutional rights (such as a right to abortion), describing them as licenses for partisan entrepreneurship. Yet the right to executive privilege is not mentioned in the Constitution’s text, either, and its historical pedigree is dubious: In the early republic, presidents did not consistently claim a constitutional right to withhold information from Congress. When the privilege has been invoked, it’s been in situations laced with obvious self-interest and partisan motives. Strikingly, its formal judicial recognition came almost 200 years after the founding. Its tenuous foundations ought to shape how we evaluate Trump’s invocation of executive privilege.<doc-sep>[music playing] michael barbaro From The New York Times, I’m Michael Barbaro. This is “The Daily.” Today, the House Judiciary Committee votes to hold the attorney general in contempt of Congress for refusing to release the full Mueller report. Nothing is likely to happen. Why Congress is running out of options for how to investigate the president. It’s Thursday, May 9. archived recording 1 Judiciary Committee will please come to order. [INAUDIBLE] being present — michael barbaro Adam Liptak, what was the mood at this meeting of the House Judiciary Committee on Wednesday? adam liptak It was tense. Chairman Nadler was very unhappy with the administration’s general attitude toward complying with requests for information from Congress. archived recording (jerrold nadler) As a coequal branch of government, we must have access to the materials that we need to fulfill our constitutional responsibilities in a manner consistent with past precedent. adam liptak The House Democrats have, of course, asked for testimony from Bob Mueller the special counsel, William Barr the attorney general, Don McGahn, the former White House counsel and all kinds of documents, including tax returns and business records of President Trump, and most pointedly, at the moment the Mueller report and the documents underlying it. [music] archived recording (jerrold nadler) The Mueller report is no ordinary run of the mill document. It details significant misconduct involving the president, including his campaign’s willingness and eagerness to accept help from a hostile foreign government, numerous misstatements, if not outright lies concerning those acts and 11 separate incidents of obstructive behavior by the president that more than 700 former prosecutors have told us warrant criminal indictment. If Congress is not entitled to the full unredacted Mueller report, one must wonder what document we would be entitled to. adam liptak And on the other side, a categorical refusal to cooperate at all by the executive branch. archived recording (donald trump) Well, we’re fighting all the subpoenas. Look, these aren’t like impartial people. The Democrats are trying to win 2020. adam liptak So there are these enormous requests from the house that have been met so far by the administration with a blanket refusal to engage, which legal scholars say is unprecedented. And then Wednesday morning, President Trump invoked executive privilege over the entire Mueller report and the documents underlying it, which, again, is a kind of maximalist position. archived recording (mike johnson) This is not about seeking the truth as we’ve heard this morning. It’s about raw partisan politics. Our Democrat colleagues have weaponized our critical oversight responsibilities. And moving today to hold the A.G. in contempt is not only premature, unprecedented and unwarranted. Frankly, it is shameful. I think, we believe, the American people deserve better. adam liptak So what you’re hearing at the hearing is the opening salvo in what looks to be quite a war between two branches of government. archived recording (jerrold nadler) Our fight is not just about the Mueller report. Our fight is about defending the rights of Congress as an independent branch to hold the president, any president accountable. This is unprecedented. If allowed to go unchecked, this obstruction means the end of congressional oversight. michael barbaro Adam, what does it mean for the president to assert executive privilege in the way that he did on Wednesday? adam liptak So executive privilege is kind of a mushy concept. It’s not in the Constitution, but the Supreme Court has said that there are at least some kinds of things that the president is allowed to keep secret, typically, his consultations with his closest staff so he can get candid advice, stuff relating to national security to his duties as commander in chief. There’s a zone of privacy the president has, even against a legitimate request from Congress. But here, in applying it to the Mueller report, which doesn’t fit neatly with any of the things I’ve just sketched out, but was in fact an investigation commission to be an investigation of the president, executive privilege doesn’t fit that concept very neatly at all. Now their assertion here was tentative. They called it protective. They say they may still come back, so there’s some play in the joints and some creativity going on. But the general attitude is — and this is consistent with what the Trump administration has been saying in all kinds of settings — is that you, Congress, get nothing. michael barbaro And so the administration is basically arguing that this concept of executive privilege applies not just to private conversations that the president has, advice he’s given, that kind of thing, but basically to anything, at this point, related to the Russia investigation that Congress might want get its hands on. adam liptak More than that. Its basic position is maximalist, totalist, that whatever we know and you don’t know, we can keep from you and we’re allowed to keep secrets. michael barbaro Even if it’s requested by subpoena. adam liptak That’s their position. archived recording (sarah sanders) Chairman Nadler is asking the attorney general of the United States to break the law and commit a crime by releasing information that he knows he has no legal authority to have. It’s truly outrageous and absurd what the chairman is doing, and he should be embarrassed that he’s behaving this way. adam liptak They think these subpoenas are illegitimate tools of political harassment and not consistent with what Congress ordinarily issues subpoenas for, which is to help it carry out its constitutional responsibilities. And why Chairman Nadler is so unhappy is because he can see that we are on the precipice of a constitutional impasse, where Congress tries to do what it needs to do, which is to gather information to fulfill its responsibilities, and is being met with a wholesale Stonewall from a presidential administration. And that, as far as I can tell, is unprecedented. michael barbaro You keep using that word, unprecedented. Just how unusual is it for any White House to basically put up a wall when it comes to a broad set of issues and say you’re just not getting anything from us when it comes to this subject? adam liptak Skirmishes between Congress and presidential administrations are commonplace. But as far as an administration saying, there’s no subpoena we’re going to comply with, we’re going to fight all the subpoenas, you get nothing, that seems to me unknown in the history of the United States. michael barbaro O.K., so once executive privilege is invoked in this way, and basically the Trump administration walls off all things Russia, Mueller and this entire episode from Congress and its investigations, what are the options for Democrats if they want to get all the things that they’re asking for: The unredacted Mueller report; compelling Don McGahn, the former White House counsel, to testify; forcing Bob Mueller to come before these committees; getting the Treasury Department to give up the president’s tax returns; to carry out all these investigations that it wants to. How does it now do that in the face of this kind of resistance? adam liptak So the Democrats have four basic options. Back in the day, what they would do is send the Sergeant at Arms and detain the person they want to testify and not let him out of the pokey — (MICHAEL LAUGHS) Presumably in the basement of the Capitol until they’re prepared to testify, but that method has not been used since 1935. michael barbaro And just to be clear, Adam, this is not a reference to your generation, but the pokey is the prison. adam liptak (LAUGHS) Yeah, the pokey is a detention cell, yes. michael barbaro Got it. O.K. So that’s number one, is extremely unlikely. adam liptak I don’t see that happening. michael barbaro O.K., so what’s the second option? adam liptak So the second option is to hold a witness in contempt and that’s what the Judiciary Committee did on Wednesday to Attorney General Barr. They said that not turning over the Mueller report violated a legitimate subpoena and constituted contempt. The full House is likely to vote the same way.<doc-sep>
The Constitution does not directly say Congress has the power to conduct investigations or oversight of the executive branch. Nor does it say the president may invoke “executive privilege” to shield information from members of Congress. But both powers — congressional oversight and executive privilege — have long been asserted and upheld by courts, with limits. Each convinced the Constitution is on their side, House Democrats and President Trump are now testing the legal limits of those powers in a fight over the redacted parts of special counsel Robert S. Mueller III’s 448-page report as well as documents and investigative material created during the two-year investigation. The House Judiciary Committee voted this week to hold Atty. Gen. William Barr in contempt for what Chairman Jerrold Nadler (D-N.Y.) called the “Trump administration’s blanket defiance of Congress’ constitutionally mandated duties. This is information we are legally entitled to receive, and we are constitutionally obligated to review,” he said. A few hours before the vote Wednesday, the Justice Department said the president would invoke executive privilege to block the release of the unredacted report. In a letter to Nadler, Assistant Atty. Gen. Stephen Boyd argued that Barr’s aides said the Democrats were demanding “millions of pages of classified and unclassified documents,” including from a dozen pending cases. Prosecutors have a duty to keep secret information and interviews unless they result in an indictment, they said, and Congress has no legitimate role in “simply duplicating a criminal inquiry, which is, of course, a function that the Constitution entrusts exclusively to the executive branch.” Both sides now seem willing to take the fight to court, but legal experts say that is not likely to result in a quick decision or a clear, resounding victory for either side. In the past, judges have been reluctant to decide disputes over documents between Congress and the executive branch, viewing them as essentially political — not legal — struggles. Ever since the Supreme Court ruled in 1974 that President Nixon had to turn over secret tapes despite his claim of executive privilege, clashes between congressional oversight and executive privilege have usually been resolved by a compromise — without forcing judges to reach a final decision on where to draw the line. But given today’s partisan rancor, a settlement may not be possible, leaving the courts to potentially strike a new balance. “The reality is that no one really knows how this turns out or on what time frame,” said Margaret L. Taylor, a former Democratic counsel for the Senate Foreign Relations Committee and a scholar at the Brookings Institution. She said the law in this area is not clear, since courts have rarely acted as the referee in these highly political battles. “The case law addressing the scope of executive privilege is sparse. If this goes to court, it’s likely to be a messy and time-consuming path. My sense is that such an outcome would be perfectly OK from the president’s perspective. It seems he views it is in his favor politically to be seen as fighting the House Democrats,” she said. Democrats could have the same motivation to be seen as defying Trump, particularly heading into the 2020 election. In a timely reminder of how long such disputes can drag on, the Justice Department announced a settlement agreement late Wednesday, ending the 7-year-old dispute over Operation Fast and Furious, a bungled Obama-era gun-running investigation. House Republicans led by former Oversight Committee Chairman Darrell Issa were convinced top officials of the Obama administration had covered up their role, and repeatedly demanded more internal files. President Obama eventually invoked executive privilege, and then-Atty. Gen. Eric H. Holder Jr. was held in contempt by the Republican-controlled House. Then, it was the Republicans in Congress asserting they had duty of oversight, and Democrats in the executive branch contending that some sensitive files should be withheld. Now that political control has switched--with Republicans in charge at the Justice Department and Democrats in control of the House. After years of fighting, both sides were glad to quit and walk away. Lawyers say neither executive privilege nor congressional oversight is a winning principle if pushed too far. “Executive privilege is personal to the president, and it’s not an absolute privilege. And it doesn’t work as a general claim of confidentiality,” said Paul Rosenzweig, a Washington lawyer who worked on independent counsel Kenneth W. Starr’s investigation of President Clinton.