Jurisprudence

Trump Asserts Executive Privilege Over the Entire Mueller Report in Effort to Block Subpoenas. Can He Do That?

Jerrold Nadler and Doug Collins sit with other Congress members at a dais.
House Judiciary Committee Chairman Jerrold Nadler presides over a hearing where members may vote to hold Attorney General William Barr in contempt of Congress on Capitol Hill on Wednesday.
Chip Somodevilla/Getty Images

On Wednesday, President Donald Trump asserted executive privilege over the entirety of the Mueller report as his press secretary, Sarah Sanders, declared that, “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.”

That “blatant abuse of power” Sanders is referring to is Rep. Jerrold Nadler’s attempt, as chairman of the House Judiciary Committee, to get the unredacted Mueller report. On April 19, the committee issued a subpoena requesting an unredacted version of the report along with all underlying evidence by May 1. After weeks of failed negotiations, the committee is on Wednesday considering contempt proceedings against Trump’s attorney general, William Barr, for failing to comply.

As I wrote on Tuesday, the Supreme Court decided in U.S. v. Nixon that a general assertion of executive privilege cannot justify the president withholding evidence relevant to a criminal proceeding. In this case, though, Trump is asserting privilege in a congressional, not a criminal, investigation. The battle over the material will now almost certainly be taken to court.

How will that go? Well, Robert Mueller himself cited the Office of Legal Counsel policy against indicting a sitting president in declining to issue a decision on whether Trump committed obstruction of justice. That OLC memo states that the appropriate venue for considering crimes of a president while he is in office is in Congress. Therefore, it would seem that Congress is entitled to evidence of those crimes as it considers potential constitutional remedies, particularly impeachment.

Based on what they said in Wednesday’s hearing, Democrats may argue that Trump has already waived privilege by offering the special counsel access to the supposedly privileged information. That is a closer call, though, since relevant precedent indicates that privileged information is still considered to be within a president’s custody even if the material is turned over to an employee of the executive branch, which Mueller was. Still, it’s reasonable to think that the standard set in Nixon that potential evidence of criminal behavior should not be covered by privilege, the Supreme Court’s principle cited in the Mueller report that no person “is so high that he is above the law,” and the OLC reasoning that the proper venue for consideration of crimes by a sitting president is Congress means that Congress should prevail.

Right now, it’s unclear how quickly the courts will resolve the dispute. On Tuesday, former Obama legal officials Neil Eggleston and Joshua A. Geltzer urged the courts to move expeditiously. In the meantime, expect to hear the phrase “constitutional crisis” even more than you have already.