Executive Privilege Isn’t a Magic Wand to Protect Trump
(Bloomberg Opinion) -- President Donald Trump’s administration invoked executive privilege Wednesday to explain why Attorney General William Barr won’t hand over special counsel Robert Mueller’s full report to Congress. There’s just one problem: Executive privilege has nothing whatsoever to do with the parts of the report that were redacted in its earlier release.
Executive privilege covers communications between the president and his closest aides on matters that must be kept from Congress or the courts to protect the effective operation of the executive branch.
Barr already had a chance to redact anything from the Mueller report that in his judgment would’ve violated executive privilege — when he did the redaction in the first place.
But Barr didn’t redact anything at all from the report on the basis of executive privilege. In fact, he included plenty of material in the report, such as conversations between Trump and White House counsel Donald McGahn, that arguably could have been included within the privilege.
In other words, Barr has already effectively determined that nothing in the Mueller report needed to be redacted for executive privilege reasons.
That letter is inapplicable. In it, the Office of Legal Counsel told President Bill Clinton that he could assert executive privilege over material requested by Congress in connection with the Whitewater investigation — in order to have government lawyers go through the material and determine whether it was in fact subject to executive privilege.
Clearly, once that review had been done, executive privilege would no longer apply — except to the material that was in fact covered by the privilege.
In Trump’s case, that review has already been done by Barr before he released the Mueller report. The 1996 opinion is completely beside the point.
Barr’s redactions had four purposes, as he explained at the time. Material was redacted as grand jury material, sensitive intelligence, matters that could affect ongoing criminal investigations, or infringing on the privacy rights of “third-parties” peripheral to the investigation.
There’s no doubt about which material fell under which category. Barr’s redactions indicated to the reader why any given line was redacted.
None of these categories corresponds to executive privilege.
Grand jury material is protected from being disclosed by Rule 6(e) of the Federal Rules of Criminal Procedure. That is, anything about who said what to the grand jury must remain confidential. This is true in every ordinary criminal cases, and has nothing to do with the executive branch at all. Strictly speaking, grand jury proceedings are in the scope of the judicial branch.
Sensitive intelligence has to do with information that might have revealed intelligence gathering methods that the U.S. government wants to keep secret. Classically, this would include human intelligence sources, but could also include spying technologies that the intelligence community doesn’t want the world to know it has.
Those methods of intelligence gathering aren’t covered by executive privilege in any familiar sense of the term. These are national-defense secrets, not conversations between the president and his associates.
Ongoing criminal investigations at least pertain to the executive branch, because they are carried out by the Federal Bureau of Investigation and the Department of Justice. But the president isn’t involved in those processes — especially not when the investigations have to do with president’s associates. Protecting ongoing investigations isn’t within the sphere of executive privilege.
As for the privacy rights of third parties, the redactions, while arguably sensible, almost by definition have nothing to do with executive privilege. If those third parties had been in conversation with the president or advising him, they wouldn’t have been third parties in the first place.
I suppose it’s just barely conceivable that the Trump administration could argue that some snippets of material that belong to one of these four categories also coincidentally would reveal conversations between the president and his advisers. But that seems wildly unlikely, precisely because Barr didn’t redact conversations of that sort.
Indeed, some of the key elements of the Mueller report are about conversations between Trump and FBI Director James Comey, as well as McGahn. Those could arguably have been redacted on the basis of executive privilege — but they weren’t.
The reason matters. Trump already waived executive privilege when he told McGahn that he could speak to the Mueller team. Ordinarily, you can’t invoke a privilege once you’ve already waived it.
So what in the world is the Trump administration thinking? The Office of Legal Counsel opinion cited by the administration’s letter is wholly inapposite.
The most likely explanation is that the administration simply is prepared to ignore the settled meaning of the law. It’s hard to picture the courts protecting the Mueller report from Congress under existing law. But maybe Trump doesn’t care if he wins in court. Maybe he just wants a fight.
As that battle plays out, just remember that the words “executive privilege” occur nowhere in the Constitution. The doctrine is a judicial construction, based on the logic of the separation of powers, with the goal of making sure the president can do the people’s work.
That doesn’t justify ignoring legitimate congressional oversight.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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