Washington – President Donald Trump formally asserted executive privilege over special counsel Robert Mueller’s report Wednesday, his first use of the executive authority in the escalating confrontation with Congress.
Assistant Attorney General Stephen Boyd wrote in a letter to Congress that Trump had "asserted executive privilege over the entirety of the subpoenaed materials." Boyd wrote that Judiciary Committee Chairman Jerrold Nadler’s push to hold Barr in contempt had "terminated" their negotiations over what materials lawmakers would be allowed to view from Mueller’s investigation.
"As we have repeatedly explained, the Attorney General could not comply with your subpoena in its current form without violating the law, court rules, and court orders, and without threatening the independence of the Department of Justice’s prosecutorial functions," Boyd wrote.
The White House assertion of privilege represents the latest collision between Trump and House Democrats, who have seen their investigations of the president blocked at every turn. Some legal experts argued the White House and Attorney General were simply stalling, making a dubious claim of privilege over the Mueller report they have intensively reviewed to put off a fight in court.
"This decision represents a clear escalation in the Trump administration’s blanket defiance of Congress’s constitutionally mandated duties," Nadler said, later adding: "As a coequal branch of government, we must have access to the materials that we need to fulfill our constitutional responsibilities in a manner consistent with past precedent."
The White House move came shortly before the House Judiciary Committee met to vote to hold Attorney General William Barr in contempt for failing to provide the full Mueller report.
The likely move against Barr represented just the second time in history that a sitting attorney general would be held in contempt of Congress; the Republican-led House admonished Attorney General Eric Holder in 2012 over his failure to provide documents to Congress.
Barr released a redacted, 448-page version of the Mueller report on April 18 that found no conspiracy between the Trump campaign and Russia, which interfered in the 2016 election. The report also identified 10 instances of possible obstruction of justice by Trump.
Amid a clamor from some Democrats to impeach Trump, House Democrats have pressed for the full, unredacted report and the underlying evidence. They moved to reprimand Barr for ignoring a congressional subpoena for the report.
"The president has stated that his Administration will oppose all subpoenas, and, in fact, virtually all document requests are going unsatisfied; witnesses are refusing to show up to hearings," Nadler said at the start of the session. "This is unprecedented. If allowed to go unchecked, this obstruction means the end of congressional oversight."
The assertion of privilege was broad – covering all of the underlying materials from Mueller’s investigation, such as reports of interviews and notes of witnesses, as well as the entire, unredacted Mueller report.
White House press secretary Sarah Sanders defended the decision and lashed out at Democrats.
"The American people see through Chairman Nadler’s desperate ploy to distract from the president’s historically successful agenda and our booming economy. Neither the White House nor Attorney General Barr will comply with Chairman Nadler’s unlawful and reckless demands," Sanders wrote. "Faced with Chairman Nadler’s blatant abuse of power, and at the attorney general’s request, the president has no other option than to make a protective assertion of executive privilege."
Republicans on the Judiciary Committee also criticized the Democrats and their move against Barr. The GOP has stood steadfast with Trump since he took office, rarely breaking with the president, dismissing the multiple investigations and insisting it was time for Democrats to move on.
"Why this rush? Without any valid legislative or administrative reason, we can only assume Democrats, led by the chairman, have resolved to sully Bill Barr’s good name and reputation," said Rep. Douglas Collins of Georgia, the top Republican on the Judiciary Committee.
During the Judiciary session, Democrats and Republicans assailed each other, with the majority accusing the minority of trying to hide the fuller Mueller report from the public while the Republicans said Democrats were being overzealous in their probes.
"The attorney general of the United States refused to provide information that is not privilege and is subject to a subpoena," said Rep. Ted Deutch, D-Fla. "There is no privilege for this information. Executive privilege is not a cloak of secrecy that drapes across" Washington, he said.
Republicans used their time to defend Barr’s name and tried to divert the conversation back to the origins of the Russia investigation, accusing the FBI of being guided by anti-Trump bias.
"Bill Barr is following the law and what’s his response? Democrats are going to hold him contempt," said Rep. Jim Jordan, R-Ohio, "I think it’s all about trying to destroy Bill Barr because Democrats are nervous that he’s going to get to the bottom of everything."
Barr sent a written request to Trump Wednesday morning asking him to assert privilege because the Judiciary Committee had "declined to grant sufficient time" for the Justice Department to review the Mueller materials, which included law enforcement information, information about intelligence sources and methods and grand jury material that would be illegal to release.
"In these circumstances," Barr wrote, "you may properly assert executive privilege with respect to the entirety of the Department of Justice materials that the Committee has demanded, pending a final decision on the matter."
The Justice Department considered it important for the White House to assert executive privilege before the House vote on contempt because, in their view, doing so would effectively invalidate the citation, a person familiar with the matter said.
Even without a privilege assertion, the citation was likely to have little teeth, as it was nearly impossible that the District of Columbia U.S. Attorney would actually seek to prosecute the attorney general. But the Justice Department believed that Barr could not be legitimately held in contempt for withholding materials over which the president had asserted executive privilege, the person said.
Republicans seemed to seize on that reasoning at a hearing Wednesday to discuss the citation.
"You cannot be in contempt for failing to produce what would be illegal to produce without a court order," said Rep. Louie Gohmert, R-Texas.
Trump asserted executive privilege to shield the entirety of the subpoenaed materials, a protective assertion of privilege to let the president make a final decision after reviewing the materials with his lawyer.
Nadler, in an interview on CNN Wednesday, indicated that he was less confident that Mueller would testify to Congress despite negotiations between Democrats and representatives for the special counsel.
"I think the president will try to stop Robert Mueller. Whether he will succeed is another question," Nadler said.
Trump tweeted last weekend that he did not want Mueller to testify, worrying Democrats who hoped to get Mueller on television talking about why he explicitly refused to exonerate Trump on questions of obstruction.
A Justice Department official said that the assertion of executive privilege Wednesday has "no direct bearing on Special Counsel Mueller’s testimony," the date and terms of which are still being discussed. But the move could limit what Mueller can say indirectly, by putting particular subject areas off limits.
The immediate effects of the White House move to claim executive privilege over the report were not entirely clear for Congress. House Democrats, for example, had plans to subpoena key witnesses mentioned in Mueller’s findings, as they had already done with White House counsel Donald McGahn. Some Democrats mused that such a claim – though they did not feel it was valid – could make it harder to receive documents and testimony from others who cooperated with Mueller.
The Justice Department previewed the news on Tuesday evening. In a late-night letter to Nadler, Boyd argued that the Justice Department had tried to accommodate Democrats’ demands for the release of the full Mueller report, which the Judiciary panel subpoenaed for its investigation into the president.
But Boyd said that Democrats – who made a counteroffer to the Justice Department in a last-ditch negotiation session to stave off a scheduled contempt vote for Barr Wednesday morning – "has responded to our accommodation efforts by escalating its unreasonable demands."
"Such unreasonable demands, together with the Committee’s precipitous threat to hold the Attorney General in contempt, are a transparent attempt to short-circuit the constitutionally mandated accommodation process and provoke an unnecessary conflict between our respective branches of government," Boyd wrote.
He later added: "In the face of the Committee’s threatened contempt vote, the Attorney General will be compelled to request that the President invoke executive privilege with respect to the materials subject to the subpoena."
Boyd’s letter followed an 11th-hour negotiation session between Justice and Judiciary on Tuesday, as both parties tried to calm tensions. The Justice Department, which has allowed only 12 senior lawmakers to have access to a fuller version of Mueller’s report, agreed to allow those lawmakers to take notes of what they read and bring in additional staff to assist.
The Washington Post