Special counsel Robert Mueller (L) arrives at the U.S. Capitol for closed meeting with members of the Senate Judiciary Committee June 21, 2017 in Washington, DC. Photo by Alex Wong/Getty Images.
An attempt by the president to prevent public consideration of the Special Counsel’s findings should be seen as an unlawful power grab, not presidential prerogative.
For more than a year, President Donald Trump’s lawyers have bragged about his “unprecedented” level of cooperation with Special Counsel Robert Mueller’s investigation, including by declining to invoke executive privilege to block access to White House documents and testimony by White House officials. This cooperation has been far from absolute — most conspicuously, President Trump has so far refused to sit for an interview with investigators and has reportedly suggested he may invoke executive privilege to shield himself from a subpoena. And the president’s lawyers may have more stonewalling up their sleeves: Bob Woodward’s bombshell book, Fear, alleges that then-White House lawyer Ty Cobb told Mueller he could have access to presidential documents subject to a reservation of rights as to executive privilege. Days earlier Jeffrey Toobin revealed that, per Rudy Giuliani, the White House has reserved its right to prevent the public disclosure of information gathered by Mueller by resort to executive privilege. Asked whether the president’s legal team would object to the full public disclosure of Mueller’s report, Giuliani told Toobin, “I’m sure we will.”
How exactly the President would go about blocking its release, Giuliani didn’t make clear. The regulations governing the appointment of the Special Counsel charge the Attorney General with releasing the report if doing so is in the “public interest.” It’s hard to predict the path this President would take — including anything from White House intervention in the decision-making of Deputy Attorney General Rod Rosenstein, to a repeat of Nixon’s “Saturday Night Massacre,” to seeking judicial protections. Regardless of which of these avenues is taken, as Toobin explained, White House resistance would mean the conclusion of Mueller’s investigation will be only “the beginning of a contentious fight over whether Rosenstein is allowed to release a complete version of Mueller’s report.”
Douglas Letter argued earlier this week in a Just Security article that, notwithstanding Giuliani’s invocation of executive privilege in his discussion with Toobin, the privilege is irrelevant to the question of whether Rosenstein will order the public release of the Special Counsel’s report. In his view, the president doesn’t have to invoke executive privilege because he can simply direct Rosenstein not to disclose the report, and fire Rosenstein (and by implication, anyone else who objects to the president’s decision) if he won’t comply. In other words, he could set in motion a “Saturday Night Massacre,” where the public can hold the president accountable politically for covering up Mueller’s findings, but we might never learn what those findings were. Letter’s thoughtful piece is an important reminder that the People can hold the president directly responsible for his decisions with respect to the Special Counsel investigation next time they see his name on a ballot (or perhaps via the far less likely scenario of impeachment).
But, in addition to the threat of political accountability, we would place more emphasis on legal constraints on the president than Letter does. As Letter observes in his piece, the president undoubtedly has broad general authority to direct the Attorney General (or, in this case, the deputy AG). But the Constitution places important checks on his ability to do so for unlawful purposes. Most importantly, as Letter notes, Article II’s Take Care Clause requires him to “take Care that the Laws be faithfully executed.” This duty of “faithfulness” requires him to act for the good of the country, not for the good of himself. Ordering the Acting Attorney General to prevent the release of the Special Counsel’s report — and firing him if he refused to do so — in order to protect himself or his close associates, when the Acting Attorney General has already determined that the release of the report is in the “public interest,” would violate this mandate.
If the president can’t find willing participants at the Justice Department in this violation of his — and their — oaths to uphold the Constitution, he may very well resort to an assertion of a broad executive privilege to block release of Mueller’s report. And even if he did persuade DOJ officials to go along with a presidential order that was primarily designed to protect President Trump personally and politically, Congress and the public (through FOIA) would seek the report. That would place the evidentiary privileges — those Letter casts as a red herring of limited relevance — very much at the center of the legal determinations.
A claim of executive privilege in any of these scenarios should fail.
Under well-established Supreme Court doctrine, executive privilege is qualified, not absolute. Claims of executive privilege must fail in the face of a strong interest on the part of Congress, the courts, or the public (as FOIA requesters) in the release of the information. In the case of a lengthy counterintelligence and criminal investigation into the president and his close associates, public interest is at its peak, and executive privilege should be no obstacle to the public release of the Special Counsel’s report.
To begin with, executive privilege extends only to certain types of executive branch information: presidential communications, deliberative processes, state secrets, some attorney-client communications, and some active law enforcement files. Much of the information likely to be in the Special Counsel’s report falls outside those categories. The portion of the report addressing the Trump campaign’s coordination with or support for the Kremlin’s election interference is highly unlikely to contain information falling under any of these privileges, since the alleged conspiracy took place before the president was elected. (It is possible that the report on this subject could reveal intelligence sources and methods, but one imagines that the Special Counsel will do his utmost to avoid this or easily confine that information to a classified annex to be shared only with Congress.) With respect to alleged obstruction of justice by the president, executive privilege might cover some of the president’s statements to his closest advisors, but not his actions while in office.
What’s more, executive privilege can be waived, and it is important to understand how waiver works given some of President Trump’s and his associates’ statements. Prior disclosure of potentially-privileged White House communications results in a waiver of privilege as to those communications. Thus, to the extent that President Trump has, in his tweets and media interviews, described internal White House conversations — such as those he had with former FBI director James Comey about the investigation into Michael Flynn — his administration can no longer assert executive privilege over those communications. In addition, privileges over testimony and evidence provided to Mueller by White House aides who spoke to law enforcement voluntarily outside the express authorization of the White House — and thus outside the scope of any agreement referenced by Giuliani — would likely be waived. In other words, their information would not be covered by the privilege if they decided to communicate with Mueller beyond what the White House authorized them to do.
Moreover, President Trump’s legal team has already conceded they have waived executive privilege over documents provided to Mueller. In a January 29, 2018 memorandum to Mueller, they asserted: “In an effort to provide complete transparency, the president waived the obviously applicable privileges where appropriate in order to allow both the Congress and the Special Counsel to see all relevant documents.” That statement is hard to square either with Woodward’s portrayal of Cobb’s peculiar arrangement for sharing information with the Special Counsel or with Giuliani’s assertion as reported by Toobin. The statement in the Jan. 2018 letter is also consistent with vast reporting by news agencies that the White House elected to waive the privilege already.
But let’s assume there are other documents or testimony where privilege has not yet been waived. How would courts decide who prevails? In reviewing privilege claims, courts balance the executive branch’s need for confidentiality with the needs of the grand jury, Congress, or the public for the underlying information. When it comes to allegations of government misconduct, the public interest in disclosure is strong. As Andy pointed out with Norm Eisen, courts have identified a public interest in “uncovering illegality among its elected and appointed officials and transparent and accountable government” as a reason to pierce evidentiary privileges. That public interest is codified in the Special Counsel regulations themselves, which recognize the possibility that the release of the Special Counsel’s report may be in the public interest.
Here, if the Special Counsel declines to prosecute the president, because of the internal DOJ position regarding indictment of a sitting president or for other reasons, the public interest in the release of the Special Counsel’s report will be exceedingly high. In the absence of an indictment that speaks directly to President Trump’s conduct, the report may well be the only way the public will learn what the Special Counsel knows about President Trump’s conduct. What’s more, any indictment stemming from the Special Counsel’s investigation will cover only criminal violations; violations of other laws or regulations, abuses of power, or violations of the public trust uncovered as part of the Special Counsel’s investigation would not be aired in a criminal trial.
The Special Counsel’s findings of wrongdoing not revealed in or covered by indictments are still deeply relevant to pressing unanswered questions. Does the evidence exonerate President Trump, or mitigate his culpability in important ways? If the evidence demonstrates President Trump engaged in criminal activity or significant misconduct, what political consequences should he face for his conduct with respect to either the 2016 election or obstruction of justice? What reforms should the country make going forward to protect the integrity of our elections and uphold the rule of law? That latter question is largely a job for Congress, but Mueller’s report would be essential to legislative remedial efforts.
The president’s own legal defenses — that a sitting president cannot be indicted and cannot ever be convicted of obstruction of justice for official acts — only increase the need for a public airing of the report. If the president’s lawyers are right about his freedom from legal liability, then political remedies (including potentially congressional censure and impeachment) are the only accountability mechanisms available — and they require that the Special Counsel’s report become public.
Even setting aside questions of impeachment, the release of the Special Counsel’s findings is essential to public trust in the investigation. The investigation primarily concerns Russia’s efforts to wage a war on our democracy that continues to the present day. Understanding whether President Trump’s campaign was involved in the Kremlin’s attack on democracy, and whether he tried to impede an investigation into those events, is important to moving past a dark stretch in the country’s history. If the public never gets to see the Special Counsel’s explanation of the president’s actions (or inactions), public trust in the investigation is likely to be weakened in ways that will redound to the detriment of our democratic system of government. (This is particularly true in light of President Trump’s repeated efforts to cast doubt on the honesty and objectivity of the Special Counsel’s team.)
For these reasons, it’s unlikely that executive privilege can be used to shield any parts of the Mueller report from public view, except to the extent that the report reveals intelligence-gathering secrets. But even if a court were to find that publication of some statements in the report would compromise law enforcement, the proper response would simply be to redact only those portions of the report. The Special Counsel’s overall conclusions and all other analysis should still be released. And, as we’ve noted, executive privilege has no bearing on many issues we expect the report to cover — most importantly, an alleged conspiracy to collude with Russia to interfere in the 2016 elections.
Last week, Rudy Giuliani issued a new threat that the president will permit the disclosure of the Special Counsel’s report only if (1) the president has a chance to review the report before it is published, (2) he deems it “fair,” and (3) he can simultaneously release a “rebuttal report.” Whether Giuliani is a reliable spokesman for the Trump legal team strategy is unclear — “truth isn’t truth” is unlikely to make an appearance in a future legal brief — but if his assertions are accurate, it suggests that President Trump is eager to hide the Special Counsel’s findings from the public eye. None of Giuliani’s supposed conditions, however, bear any relationship to the procedure, spelled out in Justice Department regulations, for releasing the Special Counsel’s report. The Special Counsel shouldn’t let these threats affect the report he submits to the Deputy Attorney General, nor should Rosenstein allow them to interfere with his obligation to assess the publicinterest, rather than Donald Trump’s. Any attempt by the president to block release of the report and prevent public consideration of the Special Counsel’s findings should be seen for what it is — an unlawful power grab, not presidential prerogative.
Originally published by the Just Security, New York University School of Law, under a Creative Commons Attribution-No Derivs-NonCommercial license.