President Trump is asserting a claim of Executive Privilege to bar the release of an unredacted, or at least less redacted, version of Special Counsel Robert Mueller’s report to Attorney General Barr, thus setting up yet another showdown with Congress in what is quickly becoming a pattern and practice on the Administration’s part:

WASHINGTON — President Trump asserted executive privilege on Wednesday in an effort to shield hidden portions of Robert S. Mueller III’s unredacted report and the evidence he collected from Congress.

The assertion, Mr. Trump’s first use of the secrecy powers as president, came as the House Judiciary Committee is expected to vote Wednesday morning to recommend the House of Representatives hold Attorney General William P. Barr in contempt of Congress for defying a subpoena for the same material.

“This is to advise you that the president has asserted executive privilege over the entirety of the subpoenaed materials,” a Justice Department official, Stephen E. Boyd, wrote Wednesday morning, referencing not only the Mueller report but the underlying evidence that House Democrats are seeking.

Mr. Barr released a redacted version of the special counsel’s 448-page report voluntarily last month. But Democrats say that is not good enough, and they have accused the attorney general of stonewalling a legitimate request for material they need to carry out an investigation into possible obstruction of justice and abuse of power by Mr. Trump.

The House Judiciary Committee prepared to vote Wednesday morning to hold Mr. Barr in contempt, despite a threat issued late Tuesday night from the Justice Department that it would ask the president to invoke executive privilege over the materials the Democrats are demanding.

Committee Democrats did not take kindly to the department’s threat.

“In the coming days, I expect that Congress will have no choice but to confront the behavior of this lawless administration,” Representative Jerrold Nadler of New York, the committee’s chairman, said late Tuesday.

“The committee will also take a hard look at the officials who are enabling this cover-up.”

The White House press secretary, Sarah Huckabee Sanders, released a blistering statement:

“The American people see through Chairman Nadler’s desperate ploy to distract from the President’s historically successful agenda and our booming economy. Neither the White House nor Attorney General Barr will comply with Chairman Nadler’s unlawful and reckless demands,” she wrote.

The Washington Post has more details about the nature and scope of the assertion of the privilege and the likely Congressional response:

President Trump formally asserted executive privilege over special counsel Robert S. Mueller III’s report Wednesday, his first use of the executive authority in the escalating confrontation with Congress.

Assistant Attorney General Stephen E. Boyd wrote in a letter to Congress that Trump had “asserted executive privilege over the entirety of the subpoenaed materials.” Boyd argued that Judiciary Committee Chairman Jerrold Nadler’s push to hold Attorney General William P.Barr in contempt had “terminated” their negotiations over what materials lawmakers would be allowed to view from Mueller’s investigation.

“As we have repeatedly explained, the Attorney General could not comply with your subpoena in its current form without violating the law, court rules, and court orders, and without threatening the independence of the Department of Justice’s prosecutorial functions,” Boyd wrote. 

The White House assertion of privilege represents the latest collision between Trump and House Democrats, who have seen their

investigations of the president blocked at every turn. Some legal experts argued the White House and Attorney General were simply stalling, making a dubious claim of privilege over the Mueller report they have intensively reviewed to put off a fight in court. 

Democrats assailed Trump officials and accused the White House of trying to hide the truth from the public, embracing secrecy for a report that the president repeatedly said had exonerated him. 

“This decision represents a clear escalation in the Trump administration’s blanket defiance of Congress’s constitutionally mandated duties,” Nadler said, later adding: “As a coequal branch of government, we must have access to the materials that we need to fulfill our constitutional responsibilities in a manner consistent with past precedent.”

The White House move came shortly before the House Judiciary Committee met to vote to hold Barr in contempt for failing to provide the full Mueller report.  The likely move against Barr represented just the second time in history that a sitting attorney general would be held in contempt of Congress; the Republican-led House admonished Attorney General Eric Holder in 2012 over his failure to provide documents to Congress.

Barr released a redacted, 448-page version of the Mueller report on April 18 that found no conspiracy between the Trump campaign and Russia, which interfered in the 2016 election. The report also identified 10 instances of possible obstruction of justice by Trump.

House Democrats have pressed for the full, unredacted report and the underlying evidence, arguing that Mueller did not make a decision on whether Trump obstructed justice and left the matter to Congress. In order to determine what happened — and whether they should impeach Trump — they panel said it needs access to all of Mueller’s material.
Democrats moved to reprimand Barr for ignoring their congressional subpoena. And during the Wednesday contempt hearing, they cast the White House claim of privilege as bogus, arguing the administration waived privilege by allowing aides to testify before Mueller — and Barr to release the report to the public.

(…)

The assertion of privilege was broad — covering all of the underlying materials from Mueller’s investigation, such as reports of interviews and notes of witnesses, as well as the entire, unredacted Mueller report.
The Justice Department considered it important for the White House to assert executive privilege before the House vote on contempt because, in their view, doing so would effectively invalidate the citation, a person familiar with the matter said.

The Justice Department believed that Barr could not be legitimately held in contempt for withholding materials over which the president had asserted executive privilege, the person said. Democrats, countered, that that was not the case and redoubled their efforts.

(…)

Barr sent a written request to Trump Wednesday morning asking him to assert privilege because the Judiciary Committee had “declined to grant sufficient time” for the Justice Department to review the Mueller materials, which included law enforcement information, information about intelligence sources and methods and grand jury material that would be illegal to release.

“In these circumstances,” Barr wrote, “you may properly assert executive privilege with respect to the entirety of the Department of Justice materials that the Committee has demanded, pending a final decision on the matter.”

The most famous Executive Privilege case and one of the few times that the courts have actually spoken on the issue is United States v. Nixon, which involved President Nixon’s attempt to withhold the recordings made in the Oval Office from the Watergate Special Prosecutor. In that case, the Court rejected President Nixon’s assertion of a full and unqualified privilege, thus ordering him to turn over the tapes which led Nixon to resign 15 days later after it was revealed that included among those tapes was evidence of Nixon’s involvement in covering up the Watergate break-in. The Nixon Court, however, did not say that there was no Executive Privilege at all and, ever since that decision was handed down in 1974 the Executive Branch and Congress have struggled more than once over the boundaries of the privilege and the question of what the President may and may not withhold.

Essentially, what the Nixon case, along with legal developments beforehand, tells us is that there are two kinds of Executive Privilege. The first kind of Executive Privilege is generally referred to as the “Presidential Communications Privilege” and covers communications between the President and his advisers. The Vice-President also has this privilege which he can assert on his own if necessary. This privilege is recognized as being rooted in the Constitution, the Separation Of Powers, and the idea that a President must be able to receive candid advice from his advisers. In order for this privilege to be invoked, though, it must involve direct communications between the President and his advisers. The second kind of Executive Privilege is generally referred to as the “Deliberative Process Privilege” and it covers certain kinds of internal communications inside the agencies of the Executive Branch. This privilege is much weaker than the Communications Privilege in that it is rooted in Common Law rather than the Constitution. The exact extent of this privilege hasn’t been heavily litigated so it’s rather unclear what is and isn’t covered, and when the interests of Congress in performing its Constitutional role of overseeing the operations of Executive Branch agencies would override it. At the very least, though, it is accurate to state that the Deliberative Process Privilege is much weaker and far smaller in scope than the Presidential Communications Privilege.

Based on all of the available information, it seems fairly apparent that the White House’s invocation of privilege in this particular case is meant to invoke the Deliberative Process Privilege, largely because it doesn’t appear that this assertion of the privilege is related to any communications in which the President or the Vice-President were involved. Therefore, to the extent that the White House is claiming privilege in this matter, the claim is going to be weak and may only be limited to specific categories of documents. Moreover, since the Deliberative Process Privilege is not absolute, it is possible that any claim of privilege will be overridden by the public interest in investigation and oversight by Congress.

With that in mind, what exactly can we say about the Administration’s invocation of privilege in this case?

The answer to that question is likely going to require extensive litigation in the Federal Courts, and the outcome is by no means clear. In his letter to House Judiciary Committee Chairman Jerrold Nadler, Assistant Attorney General Stephen Boyd cites a number of Justice Department policies regarding the release of information regarding both ongoing and concluded criminal investigations. In support of that assertion, Boyd cites memoranda on the issue that days back to the Administration of Franklin Roosevelt and includes materials as recent as those connected to the Fast and Furious investigation conducted by Congress during the Obama Administration. It was during the course of this investigation, of course, that the House Oversight Committee chose to hold Attorney General Eric Holder in contempt for his refusal to turn over documents that the Obama Administration ultimately claimed were covered by Executive Privilege. For various reasons, most of these disputes between the White House and Congress were never fully litigated so we don’t really have a record of how courts might interpret the Nixon precedent in light of claims of Executive Privilege such as this.

To be sure, there are going to be some parts of the full Mueller Report and the Special Counsel’s investigation files that should be held confidential. This includes some material submitted to or generated by the Grand Jury(ies) utilized by Mueller during the course of his investigation, the identity of certain witnesses, and the identity of persons who may have been investigated who were never charged and are not presently being investigated. Additionally, to the extent that any of the information that Mueller’s investigation obtained is being used in other investigations within the Department of Justice by U.S. Attorney in Washington D.C. and/or New York City, that material should properly be kept confidential until those investigations are concluded. With those exceptions out of the way, though, it strikes me that there is no legal basis to withhold the full version of the Mueller Report from Congress. This would be especially true if the committee were to agree to receive certain parts of the report with the understanding that they cannot be discussed outside Executive Sessions and cannot be disclosed to the public absent further agreement between Congress and the White House. There does not, however, appear to be a basis for the broad assertion of Executive Privilege that the Trump Administration is asserting in this case. Because of that, the Judiciary Committee and other committees on Capitol Hill are necessarily going to be compelled to take this matter to the courts.

I’m embedding three documents below. The first is a letter from Assistant Attorney General Stephen Boyd to House Judiciary Committee Chairman date May 1, 2019 which outlines the Department of Justice’s legal argument regarding release of the full Mueller report. The second is a letter from Attorney General William Barr to President Trump dated May 8, 2019 asking him to invoke Executive Privilege with regard to the release of the full Mueller Report. The third is a letter from Stephen Boyd to House Judiciary Committee Chairman Jerrold Nadler dated May 8, 2019 invoking Executive Privilege with respect to the release of the full Mueller Report:

Boyd Letter to Nadler Regar… by on Scribd

Barr Letter to Trump Regard… by on Scribd

Boyd Letter to Nadler Invok… by on Scribd