The political winds are howling in Washington. The Democrats in the House of Representatives led by Representative Jerrold Nadler, Chairman of the House Judiciary Committee, are forging forward with a contempt citation against President Trump’s Attorney General William Barr. The charge: the failure to turn over to the House Committee a full and unredacted version of the Mueller report, along with the evidentiary record that Mueller compiled. The objective: to breathe new life into the obstruction charge on which Mueller declined to exonerate the President.
In a previous column, I argued that that the obstruction charge against Trump was relatively weak. Following the Nadler offensive, President Trump claimed that executive privilege covered all documents and witness testimony that formed the basis of the Mueller report. This broad claim of executive privilege has brought forth a torrent of protest from the president’s many detractors. For example, Michael Conway, former counsel to the House Judiciary Committee during the impeachment of Richard Nixon in 1974, proclaimed that “Trump’s executive privilege claims over the Mueller report are as preposterous as Nixon’s claims during Watergate.”
It is of course difficult to predict whether Trump’s claim of executive privilege will prevail in whole or in part. Attorney General Barr surely seems on strong ground, wholly without any appeal to executive privilege, in insisting that he cannot release material contained in the redacted reports that he is legally required to keep confidential. In addition, as Professor Jack Goldsmith of Harvard has pointed out, the Clinton Justice Department’s regulations governing all independent special counsels, Mueller included, give to Barr, as Attorney General, “ultimate responsibility for the matter and how it is handled.” Barr’s basic obligation under the law was to “notify” Congress of the receipt of the Mueller report, and to release to Congress those portions of it that he “may determine” would be consistent with the public interest, so long as he complied “with applicable legal restrictions.” All of Mueller’s investigatory work ended with the submission of his report on March 22, and his public criticism of Barr in his letter of March 27, insisting that his summary of the report “did not fully capture the context, nature, and substance of this Office's work and conclusions,” were outside the scope of his original charge, as White House Counsel Emmet Flood pointed out in his powerful rebuttal letter of April 19.
It is against this background that one has to assess any claim of executive privilege. Conway insists that Trump’s claim is just a pale rerun of Nixon’s futile 1974 effort. A closer reading of United States v. Nixon shows just how baseless that claim is. The issue of executive privilege arose after President Nixon and his aides were served with a subpoena that demanded release of tapes of conversations that Nixon had with key advisors, related to the cover-up of the Watergate break-in of June 1972. Immediately, two key points of difference stand out between Nixon’s predicament and Trump’s situation. First, Nixon was an unindicted co-conspirator for the various offenses that arose out of the Watergate burglary. Second, it was well known late in the impeachment proceedings that the tapes contained probative evidence as to the wrongdoing of some of the indicted parties. There is no question of the relevance and admissibility of those tapes in any criminal proceeding. Donald Trump, in contrast, faces no charges of criminal conspiracy with regard to Russia. There is no criminal prosecution, let alone one in which he is an unindicted co-conspirator.
In his defense, Nixon first argued that the subpoena was improper “because [the dispute] was between the Special Prosecutor and the Chief Executive and hence ‘intra-executive’ in character,” much like a dispute between two congressional committees. The Supreme Court emphatically rejected Nixon’s claim by looking behind that label to demonstrate that a real controversy did arise between the parties in a criminal prosecution where, “Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government” and delegated to him the power to appoint inferior officers to carry out that task, including the special prosecutor, who by regulation was given the power to contest any presidential assertion of executive privilege. Nixon thus did not have the legislative authority of Congress behind him. Barr, as we have seen, does.
Second, the Supreme Court in Nixon repeatedly emphasized that criminal prosecution was governed by Rule 17(c) of the Federal Rules of Criminal Procedure, which allows for the prosecutor to demand production of key documents and records prior to trial, subject to this key caveat: “[t]he court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive.” In order therefore to get the claimed documents, the special prosecutor “must clear three hurdles: (1) relevancy; (2) admissibility; (3) specificity.” The Supreme Court agreed in Nixon that “there was a sufficient likelihood that each of the tapes contains conversations relevant to the offenses charged in the indictment,” under a standard appellate review, favorable to the President, that “should be particularly meticulous to ensure that the standards of Rule 17(c) have been correctly applied.”
Against this background, the Supreme Court then turned to the particulars of the subpoena for the Nixon tapes. It started from the noncontroversial assumption that some executive privilege is necessary to preserve both the separation of powers and the ability of the president to obtain in confidence advice from his key advisors. But the Supreme quickly and correctly rejected any notion that executive privilege should be absolute, and further noted that in many cases a subpoena outside the context of a criminal prosecution has “been found invalid as in conflict with the Constitution.”
Ultimately, it held that the question of whether to grant the subpoena fell to the judicial branch, only to correctly conclude neither the concern with separation of powers nor protection of the confidentiality of Presidential communications could justify invoking the privilege to block inquiry into serious criminal misconduct. Yet even here, the Court only went so far as to order an in camera inspection by the District Court before turning the evidence over to the prosecutor. And there matters stood as of July 24, 1974. Nixon resigned on August 9, 1974, before the legal drama could be played out.
Conway’s categorical dismissal of executive privilege simply states “the Supreme Court found that executive privilege did not supersede Nixon’s duty to comply with the subpoena issued by Special Prosecutor Leon Jaworski,” without parsing the Court’s opinion. Rep. Nadler continues that onslaught by claiming that the opposition to the subpoena is just “an attempt to abrogate [sic] all power to the executive branch away from Congress and, more importantly, the American people.”
No way. The President is relying on both legislation and constitutional privileges to show that Nadler’s subpoena is worlds apart from the demand for the Nixon tapes. Here are some particulars. Certainly conversations with high officials such as former White House Counsel Don McGahn presumptively qualify for the privilege on both confidentiality and separation of powers grounds. At this point, the burden would be on Nadler’s committee to show that somehow this privilege was waived when documentary evidence was turned over, even in the face of an explicit reservation of rights on this point.
In addition, Trump’s claim of executive privilege is consistent with the congressional mandates that Nixon flouted. President Trump has under Nixon the clear right object to subpoenas on the grounds set out in Section 17(c) of the criminal rules. In this regard, Nadler’s general fishing expedition, which falls outside the criminal context, should be rejected as “unreasonable and oppressive,” given that the House Committee has not made any attempt to show the relevance, admissibility, or specificity of that mass of documents to any ongoing criminal prosecution. Nor has Nadler’s committee shown that it is unable to acquire much of this information from other sources, including by investigating some witnesses named in the unredacted footnotes.
Representative Nadler has chosen a reckless and irresponsible way to proceed. Let us suppose he continues to think that President Trump is guilty of obstruction of justice but still does not wish to initiate impeachment proceedings. The proper way forward is for him to conduct his own independent investigation, and to seek specific documents (like the tapes) or to obtain specific testimony (like that of Don McGahn) if his investigation turns up some information that could point to criminal obstruction by Trump or his confederates. To those requests both the President and the witnesses are entitled to raise all their defenses, including executive privilege.
None of this matters to Nadler, now joined by House Speaker Nancy Pelosi, who want to truncate the standard constitutional process. They are, sadly, over the top in insisting that we are now on the cusp of a “constitutional crisis.” Any such crisis is entirely of their own making driven by the preposterous claim that the current flap over the Mueller report is a rerun of the Watergate scandal.
