Executive Privilege: The Real Battle Is Yet to Come

(Bloomberg Opinion) -- President Donald Trump’s “protective assertion of executive privilege,” in response to a subpoena from the House Judiciary Committee, is creating a great deal of confusion. To dispel it, we have to see the trees, not the forest.

To do that, it is crucial to understand that the subpoena called not only for the unredacted version of the Mueller report, but also for “[a]ll documents referenced in the Report” and “[a]ll documents obtained and investigative materials created by the Special Counsel’s office.”

A “protective assertion of executive privilege” is preliminary. It is emphatically not a final or authoritative assertion of executive privilege. It is a procedural step, described in 1996 by then Attorney General Janet Reno, and traceable to a decision of President Ronald Reagan in 1982.

The basic idea is this: When a congressional committee requests a lot of material, some of which might be covered by executive privilege, a president’s “protective assertion” is meant to suspend the process and to allow time for an adequate review of the material that is being requested.

As Reno advised President Bill Clinton, the protection assertion is “designed to ensure your ability to make a final decision, after consultation with the Attorney General, as to which specific documents are deserving of a conclusive claim of executive privilege.”

In view of the breadth of the request from the House Judiciary Committee, and the committee’s possible contempt vote, Attorney General William Barr sought to push a pause button.

As he noted, the committee asked for “millions of pages of classified and unclassified documents bearing upon more than two dozen criminal cases and investigations.” He added that “the subpoenaed materials assuredly include categories of information within the scope of executive privilege.” What Barr requested, and what Trump claimed, was a delay to allow “sufficient time to conduct a full review.”

So what happens next?

A key question is what will be included in Trump’s final, rather than protective, assertion of privilege. Two propositions are clear.

First: Executive privilege gives the president a presumptive right not to disclose his communications with his advisers. As the court put it in 1974 in connection with Richard Nixon’s claim of executive privilege amid the Watergate scandal: “Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.”

Second: Executive privilege is not absolute. In 1974, the court also said that the “legitimate needs of the judicial process may outweigh Presidential privilege.” That’s why President Nixon had to hand over the audio recordings of his conversations with his advisers – tapes that were necessary for “for the fair administration of criminal justice.”

Lower courts have applied a similar analysis to congressional efforts to compel the president to disclose information that falls within the presumptive privilege. If a congressional committee can demonstrate that it needs the information for a valid and sufficiently important legislative purpose, the presumption will yield.

When Barr claimed that the subpoenaed materials include information protected by executive privilege, he must have been pointing to the fact that the documents mentioned in the report, and those obtained by the special counsel’s office, undoubtedly include conversations between Trump and his advisers.

As for the Mueller report itself, Trump did not assert executive privilege – though he might have been within his rights to do so. If he now claims executive privilege with respect to the materials covered by House’s subpoena, it’s more than a bit awkward, simply because he did not do so with respect to the report itself.

But if he does assert executive privilege, and if the apparent inconsistency can be explained, the legal question will be whether the Judiciary Committee has a valid and sufficiently important justification for overcoming the privilege.

That leaves another question: Is the redacted material covered by executive privilege?

The safest answer is: Probably not.

The redactions principally involved (1) national security, including material identified by the intelligence community “as potentially compromising sensitive sources and methods”; (2) material that relates to or would harm ongoing investigations, which may be kept confidential under the Freedom of Information Act; (3) materials that would compromise personal privacy; and (4) materials relating to grand-jury investigations.

Recall that executive privilege is about internal discussions involving the president and his top advisers. At first glance, the redactions don’t involve those discussions, which means that executive privilege does not apply.

But that doesn’t mean that Trump is obliged or even permitted to disclose the redacted material. Put executive privilege to one side. If some law forbids disclosure, the attorney general can point to that law in saying that he will not comply with the subpoena.

For example, the work of grand juries is generally secret by law. With respect to each of the grounds for redactions, the central question is whether the attorney general can claim that existing law forbids him from complying with an otherwise valid subpoena.

Now we get to the forest. In view of the breadth of the subpoena, going well beyond the unredacted text of the Mueller report, Trump’s preliminary, protective assertion of executive privilege should not be a great surprise. The big questions are going to come up in a hurry – and they might well put us in uncharted legal territory.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

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