While critics called such a move “absurd,” they also warned it could tie up the special counsel’s report in court for months or even years.
By Jessica Corbett
With Special Counsel Robert Mueller expected to put out a report detailing his findings from the ongoing probe into alleged Russian election interference and any collusion or obstruction of justice by President Donald Trump’s campaign or administration as early as next month, the president’s legal team may move to block parts of it from Congress and the public on the grounds of executive privilege.
In a report published Monday by Bloomberg News, Trump attorney Rudy Giuliani said that in terms of asserting executive privilege, “We will look at it and see if the president thinks there is a valid claim and if there is, do we want to make it.” He added: “We reserve the right. We don’t know if we have to, but we haven’t waived it.”
Giuliani also confirmed that the president’s legal team is willing to go to court over any parts of the report Trump believes should be withheld. Such a battle, should one occur, is expected to advance all the way to the U.S. Supreme Court.
“This is a real threat,” responded Washington Post columnist Greg Sargent. “It’s another reason Dems taking the House was so important,” given that they “can subpoena the findings, and they’d probably prevail in court.”
While the Democrats who took control of the U.S. House last week plan to demand access to the report and fight to publicly release it, the regulation authorizing a special counsel does not require that Mueller disclose his findings to federal lawmakers or the public.
However, in the event of Trump trying to use executive privilege, former President Richard Nixon’s White House counsel John Dean noted that federal lawmakers could call Mueller to testify on Capitol Hill, and “Trump can’t stop Mueller from going to Congress and talking about everything that’s in his report.”
Although Rep. Jerrold Nadler (D-N.Y.), the new chairman of the House Judiciary Committee, posited that any effort by Trump’s team to block the disclosure of Mueller’s findings “will not hold up in court” because “executive privilege can always be pierced by a specific and legitimate criminal or congressional inquiry,” as Bloomberg explained:
The White House voluntarily turned over tens of thousands of pages of records to Mueller’s investigators, avoiding a subpoena fight with the special prosecutor.
The lawyers believe that preserved the president’s option to assert later that the information can’t be shared outside of the executive branch. Had Mueller subpoenaed the documents and won, the White House would have lost the ability to block their public release.
Dean called claiming executive privilege after turning over documents “absurd,” but he also warned that the “stalling tactic” could “tie it up in the lower courts for a couple of years.”
Trump and his attorneys aren’t the only barriers to publicly revealing Mueller’s findings though. Intelligence agencies will likely move to redact certain classified information included in it, Bloomberg pointed out, and “Justice Department lawyers also are required to withhold information that pertains to grand jury proceedings or ongoing sensitive law enforcement operations.”
The president’s legal team, meanwhile, is supposedly working on its own report “to counter any findings that paint Trump in a negative light.”
Mueller, for his part, is still receiving information regarding the probe. Rep. Adam Schiff (D-Calif.), the new House Intelligence Committee chairman, told CNN‘s Jake Tapper on “State of the Union” on Sunday that he hopes to turn over the panel’s interviews quickly, pointing to concerns about potential perjury for “multiple witnesses,” whom he declined to name.
“We hope, as one of our first acts, to make the transcripts of our witnesses fully available to special counsel for any purpose, including the bringing of perjury charges if necessary against any of the witnesses,” Schiff said. “I think Bob Mueller, by virtue of the fact that he has been able to conduct this investigation using tools that we didn’t have in our committee, meaning compulsion, is in a better position to determine, OK, who was telling the truth, who wasn’t, and who could I make a case against in terms of perjury?”