Executive Privilege Can’t Bury Mueller’s Report

If the Special Counsel issues a report implicating Donald Trump in criminal or impeachable conduct, will Trump be able to keep the report’s findings and conclusions hidden from Congress and the American people?

Not likely. 

At least not for long.  And almost certainly not under the banner of executive privilege.

To be sure, the legal framework under which the Special Counsel operates doesn’t guarantee public disclosure.

Under Department of Justice regulations, at the conclusion of his investigation Mueller is required to provide the Attorney General with “a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” The Attorney General must, in turn, provide Congress with an explanation for each action taken by the Special Counsel. Significantly, the regulations don’t say that the AG must provide the Special Counsel’s report itself to anyone . To the contrary, describing the Special Counsel’s report as “confidential” suggests that he/she doesn’t have to. The AG also has wide discretion over what, if anything, should be disclosed to the public.

That’s an awfully low bar, but in today’s real world the odds that a Trump-appointed Attorney General would be able, all alone, to bury the findings and conclusions of the Special Counsel for long are even lower.  Political pressure, congressional opposition, and leaks will almost certainly win out over an excessively compliant Attorney General.

So Trump’s going to need a bigger gun. 

He’s hoping to find it in the courts. 

According to the Washington Post and other outlets, Trump has recently hired 17 new lawyers to “strongly assert the president’s executive privilege.”  One of their goals is to prevent public disclosure of the Special Counsel’s report.

Maybe all those lawyers are going to lock arms and form a human chain.  Short of that, they’re not going to be able to block disclosure of Mueller’s findings and conclusions.  At least not by claiming executive privilege.

The “executive privilege” doctrine provides that certain confidential communications within the executive branch are constitutionally protected from compelled disclosure to its co-equal branches, Congress and the courts. 

For present purposes, understand this to mean that witnesses can’t be required to testify about what the President said in their presence if the President successfully asserts a claim of executive privilege.

[Those of you who want to dig deeper into the derivation and history of executive privilege might look at a Lawfare “Primer on Executive Privilege.”  The Lawfare “Primer,” in turn, contains a link to a lengthy “History of Refusals by Executive Branch Officials to Provide Information Demanded by Congress.” Those of you not enthusiastic about being dragged into law school can skip it and still get the drift.]

I find it almost inconceivable that the Supreme Court would block disclosure of the information contained in the Mueller report on the ground of executive privilege.

First, it is unlikely that the executive privilege doctrine would even apply to disclosure of the report.  There are very few relevant court decisions, but every dispute over executive privilege since the Supreme Court recognized it some 45 years ago has focused on one single issue: Can Congress or the courts compel witnesses to provide testimony or documents revealing confidential conversations with the president or others within the executive branch.

Disclosure of Mueller’s findings and conclusions would have absolutely nothing to do with any attempt to compel witnesses to provide testimony or documents.  The report would simply disclose to a wider audience testimony that witnesses have already provided without any claim of executive privilege having been asserted.  

This is what I call “Executive Privilege Once Removed.”  It is once removed because the privilege claim wouldn’t seek to block any witness from giving testimony (that’s already happened), but to block the government from using that testimony, even though no executive privilege claim was asserted at the time it was given.

Judicial recognition of Executive Privilege Once Removed would be a huge stretch, an unprecedented expansion of the doctrine.  It would make little sense under the constitutional reasoning that has guided executive privilege jurisprudence in the past. 

Executive privilege is grounded in part on the Constitution’s separation of powers between the three branches of government.  The theory is that the constitutional authority given to one branch should not be lightly invaded or impinged upon by the other two branches.

To the extent that executive privilege is grounded in separation of powers, protecting disclosure of testimony already provided to the legislative and judicial branches would make no sense at all.  Once the testimony has been given to the other two branches, any invasion has already taken place.  Nothing in the doctrine of separation of powers prohibits disclosing to the public information that is already in the possession of all three branches of government.

But the rationale for executive privilege is not grounded entirely in separation of powers.  It is grounded also in the Supreme Court’s more general reasoning about what is required to permit the executive branch to fulfill its constitutional purposes and functions.  When the Court formally recognized executive privilege in its 1974 decision in U.S. v Nixon, its decision was largely based on the president’s general interest in preserving the confidentiality of sensitive communications.

Even under this broader rationale, it’s hard to see how the executive privilege doctrine could apply to testimony about presidential communications that has already been given to both the legislative and judicial branches of the government.  Such communications are, by definition, no longer held confidential exclusively within the executive branch. 

Viewed from another angle, by freely allowing testimony about such communications to be given without any assertion of executive privilege, the courts would likely conclude that the privilege, if it existed in the first place, had been waived.

But assume for the sake of argument that the Supreme Court might expand the doctrine of executive privilege to include Executive Privilege Once Removed.  Trump and his army of lawyers would still be a long way from using the doctrine to block disclosure of Mueller’s findings.

Application of an executive privilege analysis to any specific case doesn’t necessarily mean that the privilege claim will be upheld.  All it means is that the court will conduct a balancing test weighing the interests of executive confidentiality against other constitutionally protected interests. 

Simply stated, assertion of executive privilege gets you a ticket to a legal debate, but it doesn’t mean you’re going to win it.

That debate will be framed by the Supreme Court’s landmark decision in U.S. v. Nixon.  In that case, President Nixon tried to quash a subpoena compelling him to produce recordings and documents relating to his conversations with aides and advisors who had been charged with conspiracy and obstruction of justice.  The trial court refused to quash the subpoena, and Nixon appealed to the Supreme Court.

The Supreme Court upheld the lower court’s decision requiring Nixon to produce the subpoenaed materials.  It recognized, for the first time, the existence of an executive privilege, but made it very clear that the privilege is “not absolute.”  Instead, it ruled that the president’s generalized interest in confidentiality had to be weighed against other constitutionally protected interests, including “the fair administration of criminal justice.” 

The Court found that allowing Nixon to withhold evidence highly relevant to a criminal trial “would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.”

Long story short, Nixon had to comply with the subpoena.  The Court determined that his generalized claim of executive privilege had to “yield to the demonstrated, specific need for evidence in a pending criminal trial.”

The ruling was unanimous, 8-0 (Justice Rehnquist took no part in the decision).

As discussed above, I seriously doubt that Trump would even be able to get a ticket to the debate based on a novel Executive Privilege Once Removed theory.

But even if he gets to the debate, he’s unlikely to fare any better than Nixon did.

Trump, like Nixon, would be making what the courts call a “generalized” claim of privilege.  That means that the claim would be based on protecting the confidentiality of presidential discussions in principle, not because the subject matter of those discussions requires judicial protection.  As the Court in U.S. v Nixon held, such generalized interests must yield to the more specific need for evidence in a criminal (or, by logical extension, impeachment) proceeding.  

In contrast, of course, assertion of a highly specific privilege claim to prevent disclosure of, say, national security or military secrets would receive a much warmer judicial welcome.   

Suffice it to say that discussions that might show that Trump was complicit in efforts by a foreign government to interfere with a presidential election, or that he obstructed justice by interfering with investigations or by covering up his complicity with lies and misdirection, have nothing to do with protecting legitimate military or national security secrets.

On the other hand, suppressing that evidence in connection with a criminal investigation of illegal election tampering and obstruction of justice would, to say the least, “cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.”

Odds are Trump will lose that argument every time.