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House Democrats Prepare to Demand Mueller Report

Executive privilege is the right of the president and his senior advisers to protect certain communications from disclosure to Congress and the courts

mueller report
FILE - The U.S. Capitol Building is seen at sunrise in Washington, Nov. 17, 2008. VOA

The Democratic-controlled House Judiciary Committee is set to vote Wednesday to authorize subpoenas to obtain the full report on Russian meddling in the 2016 U.S. presidential election from special counsel Robert Mueller, as well as the testimonies of five former White House officials interviewed by the special counsel.

Lawmakers were expected to vote along party lines to authorize Committee Chairman Jerrold Nadler to subpoena documents and testimony from five former Trump aides, including former political advisor Steve Bannon and former White House Counsel Donald McGahn.

While Trump has left it to Attorney General William Barr to decide whether to release the complete report, the president is expected to assert what is known as executive privilege over some portions of records other congressional committees are seeking as part of their investigation of the administration. That has set the stage for a showdown between Democrats in Congress and the White House, raising the specter that the issue may ultimately end up before the U.S. Supreme Court.

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FILE – U.S. Attorney General William Barr leaves his house after Special Counsel Robert Mueller found no evidence of collusion between U.S. President Donald Trump’s campaign and Russia in the 2016 election in McClean, Virginia, March 25, 2019. VOA

But if the past is any indication, the coming battle is likely to be fought — and eventually settled — through political give and take between the executive and legislative branches of government rather than the courts, said Mark Rozell, dean of the Schar School of Policy and Government at George Mason University and author of an acclaimed book on executive privilege.

“Historically, I found in my studies on executive privilege that presidents and Congress have done a good job of engaging in a negotiating process and settling these matters because they both understood that they had a real incentive not to let this go into the courts and not to let these matters drag on,” Rozell said.

Executive privilege

Executive privilege is the right of the president and his senior advisers to protect certain communications from disclosure to Congress and the courts. While the courts have long recognized that power, as well as Congress’ authority to investigate the executive branch, they’ve been reluctant to decide disputes over access to records between the two branches of government.

“Courts have typically required the executive and the legislative branches to engage in a good faith back-and-forth accommodation process about the information before the court will ultimately decide the issue of whether certain documents or testimony are required to be provided to the Congress,” said Margaret Taylor, a senior editor at the popular Lawfare legal blog and a fellow in governance studies at the Brookings Institution.

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FILE – The letter that Attorney General William Barr sent to Congress on March 29, 2019, is photographed in Washington. VOA

Short of serving a subpoena, Congress has other tools it can use to seek access to information from the executive branch, including the power of appropriation and the power to confirm senior administration officials, Taylor said.

“These are other tools that Congress can use to hasten … the provision of information from the executive branch to the Congress,” Taylor said.

Congress’ power to investigate

While not enshrined in the Constitution, Congress’ power to investigate and obtain confidential information from the executive branch is “extremely broad” and has been recognized as essential to its legislative function, according to the Congressional Research Service.

To obtain information or testimony from executive branch officials, congressional committees initially submit a request. When that fails, Congress can resort to another means of compulsion: subpoenas.

Failure to comply with a congressional subpoena can lead to a vote by the full House or Senate holding the person in contempt of Congress and referring him or her to the Department of Justice for prosecution. If the Justice Department is unwilling to bring charges, Congress can seek a civil judgment from a federal court compelling the individual to respond.

With the power of executive privilege, presidents have wide latitude to refuse to fully comply with congressional subpoenas. While there is no consensus on the scope of executive privilege, Taylor said presidents have claimed executive privilege over several categories of information — sensitive or classified information; presidential deliberations with advisers; attorney-client communications; law enforcement investigations and national security matters.

“These claims of executive privilege aren’t always successful,” Taylor said. “Sometimes the president ends up waving the privilege and going ahead and sharing the information.”

While presidents going back to Dwight Eisenhower in the 1950s have asserted executive privilege, previous presidents “exercised various forms of presidential secrecy that are consistent with what we today call executive privilege,” Rozell said.

Past examples

But it was during the 1970s Watergate scandal that the concept became firmly established when the Nixon administration unsuccessfully fought a grand jury subpoena to turn over secret recordings of White House conversations between President Richard Nixon and his aides.

“The Supreme Court in that case said there is a principle of executive privilege, but it does not apply in this particular instance because there are allegations of wrongdoing, and criminal justice requires access to as much information as possible in order to get the facts,” Rozell said.

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FILE – President Richard M. Nixon, is shown at his desk in the White House, Feb. 16, 1969. VOA

Since Nixon, American presidents have invoked executive privilege to varying degrees of success.

In 2001, President George W. Bush asserted executive privilege over internal Justice Department deliberations regarding the FBI’s handling of confidential informants in the 1960s. Turning over the documents, Bush wrote, would “inhibit the candor necessary” to the deliberative process and would be “contrary to national interest.” Congress fought back and eventually reached an agreement with the Justice Department to receive the documents.

On occasion, presidential claims of executive privilege have ended up in court, although by the time a court has issued a verdict, the issue has become moot.

In 2011, the House Oversight Committee subpoenaed internal Justice Department communications and other records as part of its investigation of “Operation Fast and Furious,” a federal gun-running program run amok. Then-President Barack Obama invoked executive privilege to deny the committee access to the records. Three and half years later, a federal court rejected Obama’s assertion of privilege while recognizing that some records were protected and ordering the two sides to negotiate an agreement.

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The Supreme Court has never considered a case over a congressional subpoena versus executive privilege. But given the apparent unwillingness of both the administration and congressional Democrats to compromise, experts say the possibility the issue will land before the high court can’t be discounted.

“I don’t think it’s likely that a subpoena dispute will end up before the Supreme Court,” Rozell said. “Usually, it would be a lower level federal court that would get involved. But it could conceivably be a battle that goes all the way to the United States Supreme Court.” (VOA)

Next Story

William Barr Defends Handling of Special Counsel Mueller Report

barr, mueller report
Attorney General William Barr testifies before the Senate Judiciary Committee on Capitol Hill in Washington, May 1, 2019. VOA

U.S. Attorney General William Barr appeared before Congress on Wednesday to defend his handling of special counsel Robert Mueller’s March 22 report on Russian meddling in the 2016 U.S. election, saying the decision to release an early summary of the report was his and dismissing questions about his depiction of Mueller’s findings.

In a hearing marked by partisan acrimony, Democrats grilled the attorney general over his four-page summary letter to Congress and Mueller’s subsequent complaint about the summary.

Democrats accused Barr of grossly understating evidence of President Donald Trump’s misconduct in the summary in an effort to justify his controversial decision to exonerate the president of obstruction of justice during the investigation.

‘My baby’

“It was my baby whether or not to disclose it to the public,” Barr told the Senate Judiciary Committee. “I determined that it was in the public interest for the department to announce the investigation’s bottom-line conclusions — that is, the determination of whether a provable crime has been committed or not.”

Much of the hearing focused on a letter Mueller wrote to Barr on March 27 in which the special counsel complained that Barr’s summary “did not fully capture the context, nature, and substance” his office’s work and conclusions and urged the attorney general to release the report’s executive summaries without delay.

In a subsequent phone call, Barr said, the special counsel expressed concern about how his findings were being portrayed in the media. However, he said Mueller did not characterize the summary as either “misleading” or “inaccurate.”

Barr said he turned down the special counsel’s request because he did not want to release “additional portions of the report in piecemeal fashion, leading to public debate over incomplete information.” The Justice Department released a redacted version of the 448-page report on April 18.

The special counsel wrote in his final report that the evidence was not sufficient to charge any Trump campaign member with conspiring with Russian government representatives to meddle in the 2016 election, but the office did not draw conclusions about whether the president had obstructed justice.

Decision defended

That left it to the attorney general “to determine whether the conduct described in the report constituted a crime,” Barr wrote in his March 24 summary letter to Congress, adding that he and his No. 2, outgoing Deputy Attorney General Rod Rosenstein, had examined the evidence and determined that it was not enough to support obstruction charges against Trump.

Barr defended his decision, saying the lack of “an underlying crime” — in this case, the absence of a criminal conspiracy between Trump and Russia — made it difficult to prove Trump’s “criminal intent,” which is key in proving obstruction of justice.

Asked by the committee chairman, Republican Sen. Lindsey Graham of South Carolina, if he “felt good” about his decision, Barr responded, “Yes.”

The Mueller report examined 11 instances of potential obstruction of justice, including an attempt by Trump in June 2017, just weeks after Mueller’s appointment, to get the special counsel fired, and then get his then-White House counsel, Don McGahn, to deny a newspaper account about it.

But Barr defended the president’s right to fire a special counsel and said none of the episodes documented by Mueller constituted obstruction of justice. And when Democrats pressed him to denounce the president for getting underlings to lie on his behalf, Barr demurred.

“I’m not in the business of determining when lies are told to the American people,” Barr said. “I’m in the business of determining whether a crime has been committed.”

Sessions’ replacement

Barr, a former attorney general in the administration of the late President George H.W. Bush in the 1990s, returned to the Justice Department in February after Trump tapped him last year to replace his first attorney general, Jeff Sessions, whom he fired in November.

Barr’s confirmation hearing was dominated by questions about his expansive views of presidential powers and his past criticism of the Mueller investigation. In a 19-page memo last June to Rosenstein, who then oversaw the Russia investigation, Barr called the special counsel’s obstruction investigation “fatally conceived.”

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Special counsel Robert Mueller’s redacted report on the investigation into Russian interference in the 2016 presidential election is photographed, April 18, 2019, in Washington. VOA
Democrats accused Barr of bias.  “You’re biased in the situation and you’ve not been objective,” said California Democratic Sen. Kamala Harris, a 2020 presidential candidate.  Republicans came to Barr’s defense, with Sen. Ted Cruz of Texas accusing Democrats of impugning the attorney general’s integrity.
Barr was also widely criticized for holding a news conference to discuss the findings of the Mueller report hours before either members of Congress or journalists had a chance to read it.The attorney general told reporters that the special counsel’s probe did not find that Trump or anyone in his campaign had coordinated with Russia in its efforts to influence the 2016 election, and that later, after he assumed power, Trump had “no corrupt intent” to obstruct the probe.

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Barr said the president “took no act that in fact deprived” Mueller of “documents and witnesses necessary to complete his investigation.”

The Justice Department informed the House Judiciary Committee on Wednesday night that Barr would not testify at a planned hearing Thursday. This raises the prospect that Democrats will hold the nation’s top law enforcement official in contempt of Congress. (VOA)