Can Trump Assert Executive Privilege over His Conversations with Corey Lewandowski?

Andrew C. McCarthy

President Trump’s former campaign adviser Corey Lewandowski is scheduled to testify this afternoon before the House Judiciary Committee. The White House is not objecting to his appearance but has reportedly instructed him not to answer questions about his communications with the president. (See the letter of White House counsel Pat Cipollone to House Judiciary Committee chairman Jerrold Nadler.) This raises an interesting question: May the president assert executive privilege to shield disclosure of his communications with people who are not part of the White House staff and the broader executive branch?

Lewandowski was not a government official in June and July 2017, when, according the Mueller Report, the president instructed him to convey a directive to then–attorney general Jeff Sessions. The directive was for Sessions to narrow his recusal from the Russia investigation so that he could limit then–special counsel Robert Mueller’s jurisdiction — such that Mueller could investigate only to prevent Russian meddling in future elections. That is, Mueller would end his probe of Kremlin interference in the 2016 campaign, on the rationale that Trump had done nothing wrong. Sessions was to add that he had been with Trump for nine months on the campaign and therefore knew that “there were no Russians involved with him.”

The last claim was an overstatement. We now know that the Trump organization was involved in negotiations for Trump Tower Moscow throughout the 2016 campaign. Moreover, while there is no evidence that candidate Trump himself was informed about the matter, his top campaign officials (his son Don Jr., his son-in-law Jared Kushner, and his then–campaign manager Paul Manafort) met in June 2016 with a lawyer they understood to be a Kremlin emissary (Natalia Veselnitskaya, with an entourage of Russians in tow) in the expectation (unfulfilled) of receiving campaign dirt on Hillary Clinton. (Ironically, as I further detail in Ball of Collusion, Veselnitskaya obtained the materials she presented from Fusion GPS, the same outfit that was working for Clinton to scrounge up campaign dirt on Donald Trump from Russian sources.)

My purpose here, though, is to focus not on questions about the president’s credibility, which congressional Democrats have every right to highlight. Let’s stick with executive privilege.

Some knee-jerk Trump opponents urge that any privilege claim is invalid because Lewandowski was not a government official, much less a member of the president’s staff. That is not the right way to look at it. The privilege attached to presidential communications, which the Supreme Court recognized in United States v. Nixon, is rooted in separation of powers and the weighty responsibilities of the presidency.

Let’s take Trump out of the equation (since he seems to have a strange effect on the analytical powers of usually sensible people). If some future Democratic president phoned Henry Kissinger to consult on China policy or the most efficient structure of the State Department, I believe those communications would be covered by executive privilege even though Dr. Kissinger is not a government official.

This is an issue of substance, not form: the nature of the communication, not the status of the presidential adviser. We want the president to be able to have candid conversations with worthy advisers in and out of government in order to make the best decisions for the country. Moreover, our system is based on separation of powers, so Congress should not intrude on communications the president has in furtherance of exercising his legitimate authority.

Separation of powers implies reciprocity. Members of Congress do a great deal of consulting with non-government experts and lay people in the course of legislating. It would be wrong, for example, for the Justice Department (the executive branch’s law-enforcement arm) to subpoena a member of Chairman Nadler’s staff or, hypothetically, a law professor Nadler has consulted on the ins and outs of impeachment. The political branches are supposed to respect each other’s duties, including the benefit to the country of their being able to consult knowledgeable people in carrying those duties out.

Of course, the salient issue is the ambit of the president’s duties. If a president used the presumed confidentiality of his communications with advisers for something other than the execution of his duties — specifically, for some illegitimate or criminal purpose — then executive privilege should not apply.

Here, we come to a continuing controversy in the Russia investigation: What is the proper application of obstruction principles to the president?

As we’ve noted repeatedly, there was a divergence of views between the Mueller team and Attorney General Barr regarding whether a president may be criminally liable for obstruction of justice based on his exercise of Article II powers. The attorney general, who obviously runs the Justice Department (and was, some years back, the head of DOJ’s Office of Legal Counsel), believes that if a president is carrying out his official duties he must be presumed by federal prosecutors (including special counsels) to be carrying them out for a legitimate purpose — i.e., it is not the place of subordinate executive officials to second-guess the chief executive. This does not mean there is no check on the president; it means the constitutional check is Congress (e.g., the impeachment power), not the Justice Department (which works for the president). By contrast, Mueller’s team claimed that ostensibly legitimate exercises of presidential power may subject a president to criminal liability under the obstruction statutes if a federal prosecutor decides they were undertaken for a corrupt purpose — i.e., no action of the chief executive is above second-guessing by subordinates.

I am with Barr on this one (and would be regardless of who the president was). But however you come out, you can see why it’s important. Most of us can agree that it was foolish for the president to consult with Lewandowski for the purpose of pressuring Sessions to take actions that would have been politically disastrous even if they were legally defensible. But for constitutional purposes, the president had the power to shut down the Mueller investigation entirely, and thus to direct his subordinates to limit it. (The fact that Trump’s directives were never carried out is a separate issue.)

To the contrary, if you subscribe to the Mueller team’s obstruction theory, Trump could be liable, even though the president has authority over the special counsel, if his purpose in seeking to limit Mueller was corrupt.

How you come out on the question about the scope of obstruction should determine how you come out on the question of executive privilege. If Trump was acting within his legitimate powers, even if he was doing so wrongheadedly, his communications are privileged. If the legitimacy of his actions is deemed vitiated by a potentially corrupt intent to impede the investigation, then his communications facilitate a crime and are not privileged.

Another important point: executive privilege is different in the context of a congressional investigation than in a legal case. The jurisprudence deriving from the Nixon case involves judicial subpoenas for evidence in criminal investigations conducted by the executive branch. A congressional investigation is significantly different.

On the one hand, Congress does not need a penal crime in order to impeach or to conduct legitimate examinations of executive-branch conduct. On the other hand, Congress also does not need the courts in order to pressure executive-branch compliance with legislative demands for information — Congress, for example, can impeach the president (regardless of whether the president believes he is in the right in withholding information), or it could refuse to fund government operations the president wants to conduct, or refuse to confirm presidential appointees (though the House would need the Senate’s cooperation for that), and so on.

Naturally, Congress would prefer to have a judicial determination that a president’s privilege claim is legally invalid. But courts wisely tend to stay out of disputes between the political branches that do not implicate judicial process (such as judicial subpoenas in criminal investigations). The Framers gave Congress and the president the arsenals necessary to pressure each other and work out their own disputes. And almost invariably, underneath all the noise, they do work things out: Note, for example, that the White House has not tried to block Lewandowski from appearing, nor has it made a blanket refusal to cooperate with congressional demands for information.

Finally, this all may be a tempest in a teapot, more interesting as an academic exercise than as it will play out in the hearing. That is because, as the Mueller report relates, Lewandowski wrote down the instructions he got from the president. He gave them to the special counsel, and prosecutors have published them in their report (see pages 90–94 of the Mueller Report, Vol. II).

This is less about high constitutional principle than low political theater. We all know what President Trump told Corey Lewandowski to do. We also know the Democrats are not going to impeach the president over it — regardless of where we come out on whether it comes close to an impeachable offense. To be sure, Democrats who control the House are entitled to use their power this way. But let’s be clear that today’s hearing is about the 2020 campaign. It is not a serious impeachment inquiry.

If Democrats were serious about impeaching Trump, the House would vote to convene an impeachment inquiry. Instead, Nadler’s committee, on a party-line vote, has approved “investigative procedures offered by Chairman Jerrold Nadler.” The chairman is not a real impeacher . . . he is just playing one on TV.

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