The White House on Wednesday invoked executive privilege over the Mueller report in an attempt to block Congress from seeing the full contents of the document.
It’s hardly surprising that this White House does not want anyone else to see a report that comes very close to urging Congress to impeach President Trump. Yet, while there may be valid reasons to withhold at least some of Special Counsel Robert Mueller’s report — as well as evidence underlying that report which Congress also seeks — executive privilege should not shield the report from congressional review.
For starters, most of the report is already public, so Trump waived any claim of privilege
There is no one legal concept known as “executive privilege.” Instead, the courts recognize two distinct forms of privilege that a president might invoke. The seminal case describing these two forms of privilege is the United States Court of Appeals for the District of Columbia Circuit’s decision in in re: Sealed Case — a case which is often referred to as the “Espy” case because it involved an independent counsel investigation into former Secretary of Agriculture Mike Espy.
The stronger of the two privileges is known as the “presidential communications privilege.” As a federal appeals court explained, this stronger privilege applies solely to communications that were either made directly to the president, or to communications “authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.”
Moreover, the communications that the president seeks to shield must occur “in performance of [a president’s] responsibilities” and “in the process of shaping policies and making decisions.”
The Mueller report emphatically does not qualify for this presidential communications privilege. Not only was Mueller not providing advice to the president or to the president’s inner circle, but Mueller was in fact actively investigating the president. Mueller did not seek to shape Trump’s policies or decisions. If anything, Mueller was adverse to Trump throughout his investigation.
That leaves a weaker form of privilege, known as the “deliberative process privilege.” As Espy explains, the deliberative process privilege “allows the government to withhold documents and other materials that would reveal ‘advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’”
Mueller’s report and many underlying documents may fall within this weaker privilege. But the deliberative process privilege is also quite weak. Among other things, it typically “does not shield documents that simply state or explain a decision the government has already made or protect material that is purely factual,” so it is likely that many of the underlying documents Congress seeks must be turned over if they contain purely factual information.
Even more significantly, the Espy case explains that “where there is reason to believe the documents sought may shed light on government misconduct, ‘the privilege is routinely denied,’ on the grounds that shielding internal government deliberations in this context does not serve ‘the public’s interest in honest, effective government.’” The Mueller report is, itself, an investigation into government misconduct at the highest levels.
So if the courts follow existing case law, Trump’s claim of executive privilege will collapse. Nevertheless, there are two reasons why he will likely be able to thwart congressional oversight for as long as it reasonably matters.
The first is that the current Supreme Court is extraordinarily partisan. Any analysis of what the law has to say about a dispute involving Trump must include a disclaimer that there is no guarantee that this Supreme Court will follow the law.
The second is that, even if the courts ultimately rule against Trump, that could take a very long time. In 2011, a House committee subpoenaed documents arising from the so-called “Fast and Furious” initiative spearheaded by the Bureau of Alcohol, Tobacco, and Firearms. When the Obama administration did not turn over some of these documents, the House committee sued.
Eventually, a federal district court determined that this was a very easy case. The Obama administration, Judge Amy Berman Jackson wrote, “conceded the point” that the House was engaged in a legitimate investigation, and the Justice Department “already elected to release a detailed Inspector General report that quotes liberally” from the same records the House committee sought. Thus, while the deliberative process privilege applied to those documents, the administration’s arguments for keeping them secret were unusually weak.
And yet, despite the fact that Committee on Oversight and Government Reform v. Lynch proved to be an easy case, Judge Jackson did not hand down her decision until 2016 — more than four years after the original subpoena.
Trump, in other words, does not have to convince a court that his executive privilege claim is valid. He simply needs to convince the courts to sit on their hands.