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Trump’s Noble Moment: Waiving Executive Privilege Over The Special Counsel Report

Below is my column in the Hill newspaper on the decision of President Donald Trump to waive executive privilege and the announcement of Attorney General Bill Barr that he has no intention to even give the White House an early look at the report. While Trump has not received any praise for that decision, it would (if true) represent a significant departure from past presidents and a major advance for transparency in government. Indeed, as discussed below, despite President Barack Obama’s pledge to be the most transparent president in history, Trump could have a greater claim to that distinction.

Here is the column:

Attorney General Bill Barr sent a letter to Congress on Friday, stating that he intends to release a public version of special counsel Robert Mueller’s report in a matter of weeks. As with last Sunday’s release of a summary of the report, just two days after receiving it from Mueller, Barr’s handling of the report is the bureaucratic equivalent of a Nascar pace.

However, the most notable line of Barr’s letter was largely overlooked. Indeed, from a historical perspective, it could prove to be one of the important lines of the entire Justice Department deliberation over the report.

Barr stated that “There are no plans to submit the report to the White House for a privilege review.” And that would constitute a total waiver of executive privilege — an act that is both commendable and unprecedented in its degree of transparency.

The waiver of executive privilege has gone with nary a mention in coverage, as has the impressive speed and scope of Barr’s disclosure in handling the report. Yet, for critics of executive privilege, this is a decision that is not only historic but good for our democracy.

Many of us have criticized Trump for inappropriate comments that undermine the integrity and dignity of his office. That will be a lasting and troubling part of his legacy. However, this will also be part of the record, too. While praise is only begrudgingly given to this president by a media he constantly (and offensively) labels as “the enemy of the people,” the decision to waive privilege is not just worthy of praise but could well eclipse his predecessors in yielding inherent powers to the public interest.

In his letter to Congress, Barr noted that “although the President would have the right to assert privilege over certain parts of the report,” he decided not to do so. It was an extraordinary moment not only for Trump but for Barr. As I explained to the Senate Judiciary Committee at Barr’s confirmation, he has a robust view of executive power and, over the course of his career, has established one of the most unyielding, consistent defenses of executive privilege.

That line means Barr will confine his redactions of the report to four well-recognized areas: classified information, privacy-protected information, information related to ongoing investigations, and grand jury information. Mueller reportedly is helping to decide what information to redact.

Trump could have claimed sweeping privilege and tied up the report in the courts for much of the remaining two years of his term. Although Democrats have threatened to subpoena the report, such fights over hundreds of pages and thousands of sources can be like invading Russia in winter, as courts try to comb out privileged, protected information.

While Trump consented to Mueller interviewing his close aides, the disclosures made to Mueller were not waivers of privilege because Mueller is part of Trump’s Justice Department. Conversely, the Trump team has preserved privilege claims in testimony before Congress.

Even before this decision to waive privilege, Trump allowed far greater transparency than his predecessors.

President Barack Obama was repeatedly criticized for his sweeping claims of executive privilege and refusal to comply with congressional oversight committee investigations. The “Fast and Furious” investigation was a classic example: The Bureau of Alcohol, Tobacco, Firearms and Explosives tried to track guns across the Southwest border, and one of those guns was used to kill a federal officer. The Obama administration stonewalled and slow-walked “Fast and Furious” document demands from Congress. The result was that former Attorney General Eric Holder was held in contempt of Congress, but the Justice Department refused to submit the case to a grand jury — a decision I heavily criticized at the time.

The same congressional Democrats now clamoring for disclosure on Mueller were conspicuously silent when President Obama refused clearly appropriate demands for disclosure in such investigations. District Judge Amy Jackson Berman rejected the executive privilege claims of the Obama Administration in the “Fast and Furious” case, noting that those were unsupported.

While Obama pledged to be the most transparent president in history, he immediately sought to prevent disclosures to the public and the media. The Associated Press documented the systemic denial of access to information by the Obama administration, which only became more hostile to press and public inquiries with each passing year.

If you separate his rhetoric from his actions, Trump’s record has been more limited in his claims compared presidents like Obama, who readily embraced notions of the “imperial presidency.” While Obama often voiced appealing sentiments of restraint and respect for constitutional authority, his record in the courts and Congress was breathtakingly extreme. Conversely, while Trump’s rhetoric is extreme and autocratic, his record is far more moderate on privileges claims.

Other presidents, such as George W. Bush, lost key court challenges to their own excessive claims of executive privilege. Bill Clinton invoked his inherent powers to refuse to testify and lost in spectacular fashion before the Supreme Court; his Administration also used privilege to stonewall Congress on investigative demands.

That is why Trump has been something of an enigma, legally.

None of this fits an easy narrative. It is hard to praise Trump for his restraint when he is rallying supporters in Michigan with ad hominem insults about “pencil-neck Adam Schiff” and attacks on the media. Yet, the more important measure historically is how presidents actually use their power and privileges.

Trump’s handling of the special counsel investigation and report reflects this anomaly. While Trump was unrelenting in his attacks on the special counsel, his actions stand in sharp contrast: He didn’t fire Mueller. He didn’t fire Deputy Attorney General Rod Rosenstein, who appointed Mueller and oversaw the investigation. He is not accused of destroying evidence or withholding resources from the investigation.

As for the report, Barr shocked Washington with the speed by which he released the summary of Mueller’s conclusions. He now is on track to release the public report in a fraction of the expected time for reviewing and redacting hundreds of pages, stating: “Everyone will soon be able to read it on their own. I do not believe it would be in the public’s interest for me to attempt to summarize the full report or to release it in serial or piecemeal fashion.”

That sounds a lot like transparency, and that is something we have not seen from a president in a very long time.

The irony is that the report does not, as Trump claims, “totally exonerate” him. The report is likely to be quite negative in its portrayal of Trump’s comments and conduct. Exoneration is not just a question of whether a president is a felon. We demand a bit more from our presidents than staying just short of the criminal code of conduct.

However, Trump has built an undeniable record of transparency during this investigation that could be cited for years by advocates as a gold standard for future investigations.

That’s right, Trump could have created a legacy here — and it does not involve an all-caps tweet.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

304 thoughts on “Trump’s Noble Moment: Waiving Executive Privilege Over The Special Counsel Report”

  2. Uh-oh!

    Trump wants to look into “oranges” and his father was born in a wonderful part of Germany.

    NYC.

    The tape is alarming. If he was my relative i’d be concerned.

  3. I thought it simpler to wait a day after Turley proclaimed Trump as being both “noble” and “transparent” and wait for Trump himself to negate the claim. Surely Turley has forgotten the steady stream of Trump officials that have appeared before Congress, not claiming Executive Privilege but refusing to answer questions in the event the President might want to? Today, he now doesn’t want the whole report to be seen by Congress (despite previous claims to the contrary) and I have no doubt, Executive Privilege will raise its ugly head before it’s over. Turley should follow the admonition; never believe what Trump says, watch what he does. “Noble” – BWAHAHAHAHAHA!!!

    1. enigma……..I’ve been worried about your uncharacteristic absence, kiddo.
      Welcome back………I look forward to having you irritate the hell out of me 😊

      1. I was letting you all bask in the glory of the very specific refutal of Trump collusion with the “Russian Government,” and imagined exoneration of Obstruction of Justice. As reason had ho hope of penetrating the walls of loyalty to someone who doesn’t give a damn about you. I’m allowing you all your moment.
        One might wonder about the sanity of Donald Trump who just today, demanded investigations into the “oranges” of the investigation against him and claime his father Fred was born in Germany, a surprise to those who knew him to be born in New York. His father died of Altheimers which can be hereditary. If you’re at all concerned, be sure he goes to a different doctor than the one who claimed he was 237 lbs or said he was the “healthiest ever” to assume the Presidency.
        I hope I was able to fit in enough irritation in one post to catch up. On a related note, has anyone heard from Paul Schulte? He’s been absent a while. I tried e-mailing him and got no response.

        1. enigma…yes you irritated a little…LOL
          As for Paul, I do ask (on the blog) about him about once a month….to no avail…No one has said anything.
          I’m glad you have a way to contact him. If you ever do hear from him, and it’s appropriate to tell us, I would appreciate knowing about it….thanks.

              1. Heard from Paul who is doing well. His connection to WordPress thru Internet Explorer requires him to fill out information for every entry and he decided it wasn’t worth the effort. He’s still lurking but doesn’t miss all the drama at all.

        2. Enigma says: “As reason has no hope of penetrating the walls of loyalty to someone who doesn’t give a damn about you. I’m allowing you all your moment.”

          I posted this elsewhere in an exchange with Anon. Fast forward thru the intro’s and watch the video starting about 7 minutes in. Trump gives the mic to ex-cons to speak from the heart. It’s inspiring.

          https://www.pscp.tv/w/1zqKVOdWaNPGB?t=18m3s

          1. And if you watch this and still believe Trump ‘doesn’t give a damn’….well, then…listen to Van Jones talk about it sometime…and he’ll tell you about the good things Trump is doing that Obama never even tried to do…(I know….I know….you actually believe that Obama gave a damn about you…and I’m sorry to shock you…but no…he didn’t…not even a little bit).

            1. Obama didn’t even give a damn about his own party….he left it in shambles….and then rode off to live his lifestyles of the rich and famous and hang with his celebrity pals on billionaire’s yachts in the South Pacific…and now he’s making movies for Netflix…yeah, the man really gives a damn about you….that’s sarcasm, btw…

      2. Cindy Bragg,
        You have a very poor attitude; we are here to irritate the hell out of HIM, not the other way around.
        Get with the program ,will ya?

      3. Cindy,

        Enigma in Black is one of my sock puppets, and I use his persona to represent a typical black person, lost in a miasma of unreasoning resentment, confusion, and unquestioning loyalty to the Democratic Party. I designed “Enigma” to be unable to live in 2019, but instead to mired to the 1940s and 1950s, and totally oblivious to the racial realities of the 21st Century. “Enigma” will not only NOT realize that blacks can now sit anywhere on the bus they wish, but he will also NOT notice that blacks can not walk anywhere they wish in their own neighborhood, lest they be on the wrong block, and get a cap popped off in them. “Enigma” is also designed to be oblivious to the 77% illegitimate birth rate among blacks, and the harm caused by the large numbers of illegal immigrants to the job chances, and low pay of similarly situated low-skilled/no-skilled blacks. Instead, “Enigma” will always blame White People for every problem in the black community. In short, my “Enigma” creation is about 2 or 3 pickles shy of a full jar.

        Squeeky Fromm
        Girl Reporter

        PS: Keep this to yourself.

          1. Kewl. I almost named “Rufus T. Jones”, and thought about making him an ex-pimp who found Jesus, but I thought that would be harder to pull off. Plus, I am not good with Ebonics, so I made him a newspaper man instead.

            Squeeky Fromm
            Girl Reporter

          2. There was a rumor here a couple of years ago that there was a ”’Squeevana”, a moonlighting Squeeky who worked one of those racing 900 phone lines with a Russian accent.
            As there was no solid evidence to prove that rumor, I quit spreading it; I probably shouldn’t have started it in the first place.
            She never fessed up to being Squeevana and the matter was dropped; I hadn’t thought about it since until she mentioned sock puppets.

  4. Well, it looks like JT jumped the gun with his “Trump’s noble moment” Today Trump said, ” to be honest with you, we have to get rid of judges” He was talking about the border. I think, well ya never know………..

    2. Certain judges have been frequently overturned by higher courts so perhaps it is time to get rid of them.

  5. in other news, watch the lovely and eloquent Tulsi Gabbard on Jimmy Dore show

    https://www.youtube.com/watch?v=rEMBmoW3dAk

    her hair is gorgeous! wow.

    the Democrats will not let her win. Kamala has the establishment nod. good news for Trump, he would not do as well against Tulsi. Most of all lucky for Trump that Biden is toast.

    1. Thanks for the clip. With regard to it’s contents, private businesses have become pretty neurotic with regard to “criminal” records. President Obama admits that he spent the better part of a year on cocaine. I commend him for admitting it. And it didn’t influence my vote. But if a police officer had been around for any of that, apparently his life is ruined. Such is the state of our criminal justice system. One way around this is automatic expungement after a period of say 7 years if you are not let out early on probation for a serious offense. And I mean complete deletion of files. But good luck getting the government to delete anything. It’s like pulling teeth.

  6. I would think there needs to be a fuller discussion of the Russian indictments including Gucifer 2.0 and the DNC “hack.” By the Intelligence community’s own assessment on all aspects of this, not just the “hack,” this was a “best guess.” Not like the “high degree of confidence” the intelligence community had about weapons of mass destruction.

    I would think a defense lawyer could make mince meat out of this. Does not a “high degree of confidence” correlate with beyond a reasonable doubt? And does “best guess” even amount to a preponderance of the evidence? “Best guess” probably does not amount to a preponderance of the evidence. The intelligence community is reluctant to publicly state that they have no idea what happened even when they have no idea what happened. “Best guess” is about the lowest they go — particularly in a high profile matter.

    On top of that the intelligence community’s “best guess” applied to a “suspicious” organization — not specific individuals.

    The whole idea that an ethical prosecutor worth his salt who was being serious would bring an indictment against specific individuals in this matter is preposterous.

    This was a publicity stunt.

    And I can assure you, there is an AMPLE number of people at the DNC who had motivation to disseminate this information.

    1. Steve J.
      The Russians indicted for hacking don’t seem to be willing to show up for trial for some reason😉.
      So we’re never likely to see how a defense attorney and expert witnesses would counter the hacking charges.
      That’d probably be an interesting trial, but unless there’s a decision to try them in absentia, it’ll never happen.

      1. Well I’m pretty sure that was in the minds of team Mueller when they initiated this stunt.

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