Somehow it seems doubtful that this threat from House Judiciary chair Jerrold Nadler (R-NY) will have its intended effect. As special counsel Robert Mueller prepares to wind down his probe and write its final report, all sides are jockeying for political position and attempting to pre-empt all others. Nadler fired off a salvo over executive privilege far ahead of the event, perhaps hoping to shut down any such assertions before Donald Trump’s counsel has an opportunity to make them:
The top House Democrat in the impending fight between the executive branch and Congress over the release of special counsel Robert S. Mueller’s report to the public indicated Tuesday that he will strongly oppose White House lawyers’ efforts to redact some information.
House Judiciary Committee Chairman Jerrold Nadler claimed Tuesday that the Trump administration waived any claims of executive privilege over Mueller’s eventual findings “long ago” when it agreed to cooperate with the probe.
“The law here is very clear,” Nadler argued on Twitter:
The law here is very clear. When he finishes his work, Special Counsel Mueller is required to report to the Attorney General, who is required to report to the House and Senate Judiciary Committees. https://t.co/dAIZeAbg7P via @CNNPolitics
— Rep. Nadler (@RepJerryNadler) March 19, 2019
Any claims of executive privilege covering the material in Mueller's report were waived long ago, when White House officials agreed to cooperate with the Special Counsel investigation. 3/3
— Rep. Nadler (@RepJerryNadler) March 19, 2019
Actually, it’s not at all clear that the White House waived anything when it agreed to cooperate with the special counsel. Cooperation doesn’t necessarily mean waiver of all rights and privileges, which are retained by the person (or in this case the office of the President rather than the person), not regulated by the investigators. The CNN report linked in Nadler’s post makes it clear that it’s far from a settled issue, in law or in practice, although this is hardly an unbiased news report.
“Translation,” Erin Burnett introduces the segment, “to ensure you don’t ever see the things they don’t want you to.” Not sure if that’s an apple, a banana, or a banana peel …
White House lawyers expect to have an opportunity to review whatever version of Robert Mueller’s report Attorney General Bill Barr submits to Congress before it reaches lawmakers and the public, multiple sources familiar with the matter said, setting up a potential political battle over the hotly anticipated document.
The attorneys want the White House to have an opportunity to claim executive privilege over information drawn from documents and interviews with White House officials, the sources said.
The White House’s review of executive privilege claims are within its legal purview, but could set up a political battle over the perception President Donald Trump is trying to shield certain information from the public about an investigation that has swirled around him since the first day of his presidency.
Justice Department lawyers could advise him against certain assertions if they don’t feel it’s legally defensible. If Trump does assert executive privilege, the decision could be litigated in court if it’s challenged, which Democrats would almost certainly do.
Whatevs. For one thing, circulating investigative reports before being finalized isn’t that unusual; in some cases, it gives potential subjects an opportunity to clarify or object to points made within the report before publication. Once Mueller sends the report to Barr, it’s his decision what to do with its contents. The AG is not required by law to share the whole report with Congress, and since this started off as a counterintelligence investigation, it’s almost certainly going to be inappropriate to release some details within it. And since the White House most certainly did not waive executive privilege, especially on a broad scale, they will need to make sure that discussions between Trump and his advisers do not get unnecessarily exposed.
Nadler and CNN act as though the executive-privilege tension between Congress and the White House is something new and novel. That’s absurd; every administration deals with it to some extent. Barack Obama notoriously exerted a privilege over Eric Holder’s communications on Operation Fast and Furious, for instance, even though said communications didn’t involve Obama himself. The House voted out a contempt charge for Holder which went nowhere, since he was AG at the time.
All of this assumes Mueller will have anything substantial in his report that would require the White House to exert privilege. That may well happen, but Mueller might also choose to simply explain his decisions on indictments and non-indictments using only information already made public in those charging documents. That would follow Department of Justice guidelines and protocols, to which special counsels are subject, and would also pertain to testimony if subpoenaed by Congress. There’s a non-zero chance that this never gets to court because there’s nothing to argue about.