Now that Congress has decided to take the gloves off, Donald Trump and the White House may too. Faced with new subpoenas covering the same ground as Robert Mueller’s investigation, Trump told the Washington Post last night that he will likely use a new tactic to prevent any further cooperation on obstruction investigations — executive privilege claims:
President Trump on Tuesday said he is opposed to current and former White House aides providing testimony to congressional panels in the wake of the special counsel report, intensifying a power struggle between his administration and House Democrats.
In an interview with The Washington Post, Trump said that complying with congressional requests was unnecessary after the White House cooperated with special counsel Robert S. Mueller III’s probe of Russian interference and the president’s own conduct in office.
“There is no reason to go any further, and especially in Congress where it’s very partisan — obviously very partisan,” Trump said.
Trump’s comments came as the White House made it clear that it plans to broadly defy requests for information from Capitol Hill, moving the two branches of government closer to a constitutional collision.
It might sound counter-intuitive, but Trump’s cooperation with the Mueller investigation went well beyond his legal requirements. True, Trump didn’t personally sit down with Mueller’s prosecutors for an interview, and Mueller found Trump’s written answers to a questionnaire insufficient, but Trump wasn’t compelled to go even that far except by his own pledge to work with Mueller. More significantly, Trump never made a claim of executive privilege, even though Trump had a legal right to exercise that claim especially in regard to aides such as former White House counsel Don McGahn. Trump may have conducted his own PR war against Mueller, but in terms of legal cooperation, Trump went considerably farther than necessary.
Now, however, Trump’s had enough of investigations, even if Congress hasn’t. To head off Democrats’ efforts to restage the Mueller investigation, Trump plans to make extensive use of the tool he foreswore over the last two years. Yesterday, the White House began working on an executive-privilege claim to cover any further questioning of McGahn, and will likely expand that to all of Trump’s aides:
The White House plans to fight a subpoena issued by the House Judiciary Committee for former White House counsel Donald McGahn to testify, according to people familiar with the matter, setting up another showdown in the aftermath of the special counsel report.
The Trump administration also plans to oppose other requests from House committees for the testimony of current and former aides about actions in the White House described in special counsel Robert S. Mueller III’s report, according to two people familiar with internal thinking who, like others interviewed for this story, spoke of the plans on the condition of anonymity.
White House lawyers plan to tell attorneys for administration witnesses called by the House that they will be asserting executive privilege over their testimony, officials said.
Such a move will intensify a power struggle between the Trump administration and congressional Democrats, potentially setting up a protracted court battle.
How successful will that war be? The problem for Trump might well be his earlier cooperation with Mueller. But, as I argue in The Week today, the problem for Democrats might well be Trump’s earlier cooperation too:
The Second Mueller War will be fought on two fronts. The courts in the D.C. circuit will get a lot of extra work sorting out the nuances of executive privilege, and it’s not clear who has the better of that argument. Democrats will claim that privilege has already been waived once and for all time by cooperation with Mueller, but the White House will argue that the fresh venue and the politically charged nature of Congress allows for withdrawal of those voluntary waivers. Without formal impeachment proceedings — which House Speaker Nancy Pelosi (D-Calif.) is anxious to avoid — Congress’ legal grounds for overturning legitimate privilege claims may well be insufficient.
The second front will be in campaign politics, and it might well be more fraught than the court battles to come. Voters generally don’t like Trump much personally, but they’ve also just seen wild allegations of Trump being a Russian agent and/or stealing the election in 2016 collapse in Mueller’s report on Russian collusion. Political partisans (and pundits, too, for that matter) might relish the conflict, but voters largely hoped that the Mueller report would put an end to this particular inside-the-Beltway feud and shift focus back to their priorities.
Instead, to paraphrase Al Pacino from another disappointing sequel: “Just when I thought I was out, they pull me back in.” A decision by Democrats to pursue impeachment over an obstruction charge in a politically charged independent investigation would be risky — a lesson Republicans learned 21 years ago after the move to impeach Bill Clinton. The longer voters keep hearing about the non-collusion in 2016, the more Democrats risk major backlash in the 2020 election.
At the very least, it will be several months before anyone gets to hear from McGahn and other aides on the subject of the president’s personal tirades, if at all. Pity the judges who have to deal with all the competing claims, and envy the attorneys racking up billable hours in Mueller War II: Executive Privilege Boogaloo. In the meantime, enjoy the only worthwhile clip from this other sequel, because we’re all Al Pacino now.
Update: Game on!