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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

Trump Moves to New Phase with Public Release of Mueller’s Report, Obstruction Charges Set for Release

Congress and the American people will for the first time see for themselves in detail what Mueller examined

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U.S. President Donald Trump speaks at the White House in Washington, April 17, 2019. VOA

One of the dominant stories in the two-year presidency of Donald Trump moves into a new phase Thursday with the public release of special counsel Robert Mueller’s investigation into allegations of election collusion and obstruction of justice.

Attorney General William Barr is scheduled to comment about Mueller’s report at a morning news conference, with copies being sent a short time later to Congress and then posted online.

Congress and the American people will for the first time see for themselves in detail what Mueller examined as he and his team of federal investigators worked to determine whether Trump’s campaign or its associates worked with Russia in its efforts to interfere with the 2016 election that brought Trump to power.

U.S. intelligence agencies in early 2017 assessed that Russia, at the direction of President Vladimir Putin, carried out a campaign to undermine the vote and had a clear preference for Trump to win.

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FILE – William Barr testifies before a Senate Judiciary Committee hearing on his nomination to be attorney general of the United States on Capitol Hill in Washington, Jan. 15, 2019. VOA

Lightly redacted

People familiar with the 400-page Mueller report who spoke to the The Washington Post and The New York Times said the document released Thursday will be lightly redacted and go into great detail about the various allegations of Trump obstructing the federal investigation into Russia’s election-related activities.

Barr has released a short letter with his summary of Mueller’s findings, most notably that Trump’s campaign did not collude with Russia and that in Barr’s opinion the information from Mueller did not show enough to support charges the president obstructed justice.

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FILE – The letter from Attorney General William Barr to Congress on the conclusions reached by special counsel Robert Mueller in the Russia probe, March 24, 2019. VOA

The Mueller report would have been scrutinized in great detail even without Barr’s letter, but many will be looking to see how his conclusions appear when compared to the more complete underlying information that will be available to the public.

Congressional Democrats are expected to use subpoena powers to demand the full report. House Judiciary Chairman Jerrold Nadler said Wednesday that assuming the report is heavily redacted, his committee would “most certainly” issue subpoenas “in very short order.”

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FILE – Deputy Attorney General Rod Rosenstein speaks during a news conference at the Department of Justice. VOA

Barr will be joined at his news conference by Deputy Attorney General Rod Rosenstein, who for much of the Mueller investigation was the one overseeing the probe at the Department of Justice. No one from Mueller’s team will take part in the briefing.

Trump said Wednesday he was considering holding his own news conference Thursday. Speaking on The Larry O’Connor Show on the local radio station WMAL, Trump said, “You’ll see a lot of very strong things come out tomorrow. Attorney General Barr is going to be giving a news conference. Maybe I’ll do one after that; we’ll see.”

‘Spinning the report’​

Nadler and the heads of key House committees strongly objected to the way the report’s release is being handled, saying Barr’s media appearance is “unnecessary and inappropriate, and appears designed to shape public perceptions of the report before anyone can read it.”

They called for Barr to cancel his news conference. But Georgia Congressman Doug Collins, the ranking Republican on the Judiciary Committee, defended Barr, accusing Democrats of “trying to spin the report.”

In addition, The New York Times reported Barr consulted with White House lawyers in recent days about the report, which helped Trump’s legal team in its preparations to respond to the release.

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House Judiciary Committee Chair Jerrold Nadler, D-N.Y., speaks with a reporter as he departs a news conference after the House voted to reauthorize the Violence Against Women Act, April 4, 2019, on Capitol Hill in Washington. VOA

Nadler, along with the heads of the House intelligence, oversight, financial services and foreign affairs committees, said in a letter, “There is no legitimate reason for the department to brief the White House prior to providing Congress a copy of the report.”

“These new actions by the attorney general reinforce our concern that he is acting to protect President Trump,” they wrote.

House Speaker Nancy Pelosi said the attorney general had “thrown out his credibility” with a “single-minded effort to protect” Trump.

“The American people deserve the truth, not a sanitized version of the Mueller Report approved by the Trump Admin,” she said on Twitter.

This is not the end

Whatever Congress and the public learn Thursday, the issues covered in the report are certain to endure in U.S. political discourse in the short term, with Barr scheduled to testify before the Senate Judiciary Committee on May 1, followed by an appearance at the House Judiciary Committee the next day.

Nadler has also said he will “probably find it useful” to call Mueller and his team to testify before his committee.

Looking to the longer term, it is highly unlikely the investigation will fade to irrelevance before the next presidential election in November 2020.

In one measure of public demand for the information, several publishers are offering people the ability to purchase printed copies of the report, and pre-orders alone on Amazon’s website ranked among the site’s top 100 in book sales before the report was even released.

What have long been public are the legal ramifications of Mueller’s probe.

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FILE – Robert Mueller, as FBI director, testifies before the House Judiciary Committee hearing on Federal Bureau of Investigation oversight on Capitol Hill in Washington, June 13, 2013. VOA

Trump associates in jail

Some of the closest figures in Trump’s orbit pleaded guilty or were convicted of a range of offenses, often for lying about their contacts with Russian operatives during the 2016 campaign or just before he took office in January 2017.

Trump’s first national security adviser, Michael Flynn, pleaded guilty to lying to investigators about his contacts with Russia’s then-ambassador to Washington, Sergey Kislyak, just before Trump assumed power, and is awaiting sentencing. A low-level foreign affairs adviser, George Papadopoulos, was jailed for 12 days after he pleaded guilty to lying to investigators about his Russia contacts.

Trump 2016 campaign chairman Paul Manafort is in the early stages of a 7½-year prison term after being convicted and pleading guilty in two cases linked to financial corruption from his years of lobbying for pro-Russian interests in Ukraine.

Rick Gates, a business associate of Manafort’s and his deputy on the Trump campaign, was a key witness against Manafort at his trial, after pleading guilty to conspiring with him in financial wrongdoing from their years as lobbyists for Ukraine. He is awaiting sentencing.

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Michael Cohen, President Donald Trump’s former lawyer, returns to Capitol Hill for a fourth day of testimony as Democrats pursue a flurry of investigations into Trump’s White House, businesses and presidential campaign, in Washington, March 6, 2019. VOA

Trump’s one-time personal attorney, Michael Cohen, pleaded guilty to helping Trump make $280,000 in hush money payments to two women, an adult film actress and a Playboy model, to keep them quiet before the 2016 election about alleged decade-old sexual encounters they claimed to have had with Trump. Cohen, headed soon to prison for a three-year term, also admitted lying to Congress about the extent of Trump’s efforts during the 2016 campaign to build a Trump skyscraper in Moscow, a time when candidate Trump was telling voters he had ended his Russian business ventures.

Long-time Trump adviser and friend Roger Stone is awaiting trial on charges that he lied to Congress about his contacts with the anti-secrecy group WikiLeaks in conjunction with the release of emails hacked by Russian operatives from the computers of Democratic officials that were damaging to Trump’s 2016 opponent, Hillary Clinton.