Below is my column in The Hill newspaper on a significant potential barrier to the release of the Special Counsel report — once it is given by Robert Mueller to Attorney General Bill Barr. There is a striking contrast between the level of cooperation shown in relation to the Special Counsel investigation versus congressional investigation. In the latter context, the White House instructed witnesses not to answer questions on the basis that privilege might be claimed (an improper practice in my view). This would seem to suggest that the Trump team is treating communications with the Special Counsel as internal Executive Branch disclosures — and thus not a waiver of privilege. If that is the case, Barr could be heading into a world of difficulty. If the White House invokes, the Justice Department has traditionally defended those claims of executive privilege in court. That could mean a report that is heavily redacted. Unlike classified material which can be given to Congress under seal, grand jury information or executive privileged information cannot be given to Congress absent a court order or waiver, respectively.
This weekend Trump said that he supported the vote of Congress to demand the public release of the report. He told his followers that he told members to vote for the resolution and “Play along with the game!” It is not clear what that game is given the blocking of vote in the Senate by Lindsey Graham. Moreover, it does not state that Trump will waive all executive privilege as discussed in this earlier column.
Here is the column:
President Donald Trump again wrote in all-caps this week, lashing out at special counsel Robert Mueller’s investigation as “illegal & conflicted” and declaring “there should be no Mueller Report.” Of course, Mueller’s investigation is entirely legal. Moreover, as reflected in the 420-0 House vote this week, there is overwhelming, bipartisan support for making the report public.
Indeed, everyone seems to want the report released: Democrats, Republicans, even Attorney General Bill Barr. The one person who may not be on board is Trump — and that could prove a very serious problem for Barr.
Trump appears, again, to be dangerously taking his own counsel. While he seems genuinely infuriated about the investigation, he played the largest part in bringing it about.
At the start of his administration, some of us opposed the appointment of a special counsel as unnecessary and unsupported by hard evidence. That changed with the firing of former FBI Director James Comey in the midst of the Russia investigation and Trump’s public attacks on the investigation. Trump’s advisers reportedly warned him this was a bone-headed, self-destructive act; the only holdout reportedly was son-in-law Jared Kushner, who thought it would shorten the investigation. The result was catastrophic and plunged the administration into the current quagmire.
Trump could, once more, prolong this controversy by continuing to “counterpunch” himself into a deeper and deeper hole. There still is no compelling evidence of collusion. Moreover, everyone is telling him to release the report as fully and quickly as possible.
This brings us to William Barr’s problem.
During his confirmation hearing, Democrats repeatedly pressed him to guarantee that the report would be released. As I testified at his confirmation, Barr could not ethically give that guarantee; various laws governing classified evidence, grand jury information and privacy information require redactions.
The biggest issue, however, could be executive privilege. The power to assert executive privilege rests primarily with the White House. It is the president’s privilege to assert, and the Justice Department’s obligation to defend such assertions.
Two types of privilege can arise in this context. First, there is deliberative-process privilege governing the executive branch’s decision-making. This privilege, however, is routinely trumped in cases involving government abuse or misconduct.
The more difficult privilege is “presidential communications.” Recognized in 1974 in United States v. Nixon, the Supreme Court noted that “the presidential communications privilege is more difficult to surmount.” Unlike the deliberative-process privilege that “disappears altogether when there is any reason to believe government misconduct occurred,” the presidential communications privilege is harder to overcome, “even when there are allegations of misconduct by high-level officials.”
The assumption of many is that executive privilege has been waived largely since the Trump administration allowed many current and former White House staff to speak with Mueller. To the extent that such information was shared with Congress, such a waiver may have occurred. However, the White House can argue that speaking with Mueller is not a waiver. Unlike earlier independent counsels like Kenneth Starr, Mueller is a special counsel — and, as such, he’s part of the Justice Department, which is part of the executive branch.
In other words, having the White House counsel speak with the special counsel is basically the executive branch speaking to itself.
Notably, while Trump allowed White House officials to speak freely with Mueller, the White House was far less free with Congress — including, inappropriately, having officials refuse to answer questions on the possibility of a later privilege assertion.
Trump therefore could assert executive privilege over information derived from presidential communications. And that would put Barr in a very difficult spot. Indeed, a report without presidential communications could leave little more than a husk of the original. More importantly, it could leave Barr with little choice in the matter.
With sketchy past opinions on the scope of these privileges, executive assertions can be difficult questions. Historically, the Justice Department has left such questions to the courts absent a compromise with Congress. The Obama administration made some very dubious privilege claims but the Justice Department defended those assertions in Congress and the courts. Absent a clear waiver, it would be a sharp departure from past practice for Barr to override a White House privilege assertion.
If Trump asserts executive privilege to all communications with Mueller that were not also made to Congress, Barr likely will feel duty-bound to defend those assertions. Barr is no Sally Yates, who, as acting attorney general, refused to defend Trump’s first immigration order. It was a highly improper order and warranted her firing by Trump. Barr will defend a properly asserted presidential privilege, and he will comply with any order of a court on the merits of such an assertion.
So where does that leave us?
Option 1: Under federal law, Barr could confine his disclosure to a short summary. Thus, if no criminal acts by the president or his campaign were uncovered, Barr could describe the scope of the investigation and give the ultimate findings. After all, members of Congress widely condemned Comey for his public discussion of Hillary Clinton’s “grossly negligent” actions after he decided not to charge her. Barr could say he will not repeat Comey’s grandstanding.
But Barr would be wrong in taking such a position. A special counsel investigation is not a criminal investigation; it has fact-finding and reporting components that are supposed to force transparency. Mueller was mandated to find the truth, not just chargeable offenses. The public has a right to see that evidence, since these allegations go to the very heart of our democratic process.
Option 2: The most likely option will be to write a summary and attach the redacted report, or rewrite the report into a unified report from Barr to Congress that removes statutorily and constitutionally protected information. Barr also could give Congress a sealed version of the report containing classified information. However, he cannot give Congress a report with grand jury information (called Rule 6e material) without a court order. More importantly, he cannot disclose privileged information to Congress.
The preference would be a redacted copy with blacked-out sections to show how much of the original report has been withheld. The only logistical question is whether Barr will issue a summary while the report is being scrubbed, or issue a summary pending the release of such a public report. There also is the question of whether Barr will allow the White House to submit a response with his submission to Congress — an accommodation (and possible delay) that would be best to avoid.
The second option is the more likely for Barr, but much depends on Trump. Trump could move to higher ground by declaring that, while he still views the investigation as a “witch hunt,” he would waive all remaining privilege assertions for the purposes of this report so that the public can reach its own conclusions. If he did that, he could argue that, while he continually denounced the investigation and the investigators, he never actually took obstructive steps like firing Mueller, silencing witnesses or withholding the final report.
That is not the approach of a counterpuncher — but it is the approach of a president.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.