Below is my column in the Hill newspaper on the recent demand by Special Counsel Robert Mueller of material in over a dozen different areas. The most intriguing is likely to be the two documents referenced by Trump personal counsel Ty Cobb in an overheard conversation at a popular D.C. restaurant. The conversation has many in the Beltway scratching their heads and a few smirking. Cobb is an experienced lawyer who sees this investigation as unlikely to produce any compelling basis for a criminal charge. Conversely, White House Counsel Don McGahn is properly concerned with the danger of establishing precedent in the area of executive privilege that could undermine future presidents. Cobb is a bit too experienced in this town to make such an amateurish mistake as discussing loudly an internal fight over the documents in McGahn’s safe — a previously undisclosed dispute. It would certainly be intriguing if the reporter was told to have lunch at BLT and bring his notebook (Technically Cobb did not leak anything in being overheard). It would have been a truly Machiavellian move against McGahn. However, there is no evidence supporting such a theory. Ifthat were the case, the reporter’s story would be highly misleading since he clearly conveyed that this was a pure coincidence and a surprise. Moreover, such an arrangement would be unethical in my view even if Cobb thought it in the best interest of the President. These remain documents under a claim of privilege and presumably there was a decision not to make the disclosure. I am inclined to give Cobb the benefit of the doubt, though that means assuming that he committed a rather rookie error.
Special Counsel Robert Mueller reportedly hit the White House this week with a massive demand for information in 13 different areas in what can only be seen as a significant escalation of the investigation for President Trump and his staff. The scope of these demands has caused tension between Trump’s personal counsel Ty Cobb and White House counsel Don McGahn. Both are respected lawyers and both have reportedly encouraged Trump to cooperate rather than confront Mueller in his investigation.
However, in an embarrassing overheard lunch conversation, Cobb revealed that McGahn is resisting in waiving claims to executive privilege. Sitting close to him and his colleague at BLT Steak, just blocks from the White House, happened to be the luckiest New York Times reporter in the Beltway: Kenneth Vogel. (It appears that not only can you find oversized $26 burgers at the restaurant, but a la carte news tips as well.) Vogel dutifully took notes as Cobb alleged that McGahn has two tantalizing documents in his safe that Cobb said are being withheld even from him.
There would be grounds for Trump to refuse some of this material and trigger a court fight over the scope of executive privilege. He has already compromised privilege assertions by discussing the underlying meetings in public and not asserting privilege in prior testimony of participants before Congress. Moreover, Trump has harmed his position for months in thinking tactically rather than strategically.
This is a time for strategy and Trump can waive privilege on the unique facts of the situation without establishing precedent for the future. The question is whether he wants to fight or to win. If Mueller wants this material, he can likely compel much of the production. He is unlikely to prevail in getting it all. The goal is to get this investigation concluded, and that goal will be only delayed by a privilege fight.
None of this is to suggest that I believe there is compelling evidence of any crime by Trump or his staff in relation the Russian allegations. As I have stated before, I remain highly skeptical about the allegations of obstruction of justice by Trump or, for that matter, the loosely defined allegations of “Russian collusion.”
While I supported the appointment of a special counsel after Trump unwisely fired James Comey as director of the FBI, Mueller’s staff and budget seem to have grown in inverse proportion to the evidence of actual crimes. Indeed, thus far, the only articulable crimes center on Paul Manafort and are far removed from Trump or his staff. Manafort has the unfortunate distinction of being the designated defendant of this scandal with collateral tax, banking and lobbying violations.
In such a context, it would be understandable for Trump and McGahn to push back on a sweeping demand of this kind in more than a dozen different areas. He has the ability to do so under executive privilege, which is not mentioned in the Constitution, though it has been raised in some form since the administration of George Washington.
The landmark case articulating the privilege was United States v. Nixon in 1974 where the Supreme Court ruled 8-0 against President Nixon in his refusal to turn over tape recordings and other material linked to the Watergate scandal. Even Chief Justice Warren Burger, who was known for supporting executive powers, ruled that Nixon had to turn over the material to special prosecutor Leon Jaworski.
There is, however, a potentially significant distinction. In the Nixon case, there were pending charges against individuals and the evidence was being sought as part of that federal case. It was, therefore, a prosecution and not simply an investigation. The court ruled that Jaworski had shown “sufficient likelihood that each of the tapes contains conversations relevant to the offenses charged in the indictment” and that the information was “demonstrably relevant in a criminal trial.” That is in sharp contrast to the current investigation in what still looks like a scandal in search of a relevant crime.
The Supreme Court rejected an absolute privilege assertion in Nixon but still recognized that a balancing must occur in such cases. The demand of prosecutors becomes more compelling as part of an actual criminal case with specific evidence tied to indicted offenses. That does not mean that the privilege can defeat such demands at the investigatory stage. After all, two grand juries are investigating possible crimes and, if accounts are to be believed, Mueller is preparing to indict Manafort on anything short of ripping a label off a mattress.
So if there is a case to be made, why not make it? Because good law does not necessarily make for good cases. Trump cut his teeth in the highly litigious world of real estate, where litigation is a tool for delay and coercion. It is tactical. Constitutional cases are strategic. Even if Trump were to prevail in narrowing Mueller’s demand, it is unlikely that he could withhold much of the evidence from either Congress or the courts. He will find himself on the wrong side of a balancing test, and ultimately, history.
If Cobb was struggling with McGahn over the disclosure of the documents in his safe, he successfully forced the issue (and likely the disclosure) in his lunch special with The New York Times. In Washington, McGahn’s safe has now taken on the lore of Geraldo Rivera and Al Capone’s vault. The difference is that Rivera didn’t have subpoena authority and the safe was empty. Courts have already rejected claims of attorney-client privilege for government lawyers like McGahn in withholding documents.
Now Trump’s own lawyer has expressed his view that there are two material documents being withheld in the safe. It will be difficult to make this cat walk backwards at this point, and McGahn should err on the side of disclosure. Better yet, Trump should order the disclosure of the material to the greatest extent possible, then order Cobb to start eating lunch at this desk.