President Donald Trump tees up the strangest test yet of executive privilege

Bart Jansen

WASHINGTON – President Donald Trump teed up what could become the weirdest test yet of what communications a president can keep secret from Congress. It could still end up being a defining test of presidential power.

Trump took the rare move last week of asserting executive privilege to keep secret the millions of pages of evidence that special counsel Robert Mueller gathered in his investigation of Russian interference in the 2016 election, in addition to portions of the final report that were blacked-out in the version made available to lawmakers and the public.

That claim set the stage for a legal showdown with Congress over the president's power to keep secrets. Lawmakers had demanded access to the full report and Mueller's underlying evidence. When they didn't get it, Democrats on the House Judiciary Committee voted to hold Attorney General William Barr in contempt. The full House could vote within days to approve a contempt finding and send the dispute to court.

But the looming legal battle – a constitutional showdown over a secrecy doctrine the Supreme Court recognized in a key Watergate decision – is an unusual one. 

For one thing, it's not clear that lawmakers are after the kind of smoking-gun evidence that was behind the big legal fight in which the court recognized executive privilege. In that case, the White House was trying to hide the secret tapes that eventually drove President Richard Nixon from office. This time, lawmakers are seeking to fill in gaps in a document that is posted online. And the Justice Department has offered to show select lawmakers some of the material that it now says is privileged. 

Another oddity is that Trump’s blanket assertion of executive privilege was meant as a way to give officials more time to review the materials Congress requested to see whether any could be released. After the materials are scrutinized, Barr said the final decision might cover “some or all of the subpoenaed documents.”

Plus, Trump waived executive privilege two years ago to allow his aides to cooperate with Mueller's investigation. And the White House didn't try to block the release of Mueller's report, which recounted conversations between the president and some of his closest advisers.

House Democrats have said they are determined to pursue it anyway. Rep. Jamie Raskin, D-Md., said Trump ordered "that a curtain be pulled down over the executive branch."

Exactly how that will work is far from clear. Federal courts have wrestled with executive privilege before, but have never decided exactly what a president can keep secret, or whether he can assert a privilege after waiving it, or even after offering to give lawmakers some of the secret information. 

“Once the cat is out of the bag, you can’t put the cat back in,” said Daniel Medwed, a law professor at Northeastern University School of Law. “But the question is: is all of the cat out of the bag, or just the tail?”

President Donald Trump

What is executive privilege?

Executive privilege is the authority of the president to keep conversations or memos from advisers secret so they can give him candid advice.

Presidents have fought with Congress almost since the United States' founding over access to information. But it wasn't until 1974 that the Supreme Court formally recognized executive privilege as a basis for refusing some requests for information, saying it was necessary for the "effective discharge of a president's powers." 

In that case, a special prosecutor sought access to Nixon's White House tapes. The justices ruled that executive privilege was a basis to keep presidential communications private, but ordered Nixon to release them anyway because prosecutors' need for the information was so great. Nixon resigned two weeks later. 

Since then, presidents of both parties have haggled with lawmakers over the breadth and strength of privilege claims. The federal cases have often been settled before judges spelled out in black and white what was protected and what wasn’t.

Most recently, a nearly seven-year court battle over a flawed gun-trafficking investigation called Operation Fast and Furious ended last week without a clear resolution. Both the Justice Department and Congress agreed to drop their appeals rather than keep fighting over lower-court rulings. The committee disagreed with conclusions in August 2014 and January 2016 that the president's deliberative process could be privileged. And the executive branch disagreed with the conclusion that the committee had standing and cause for its lawsuit.

That case ended the same day Trump invoked executive privilege for unreleased portions of the Mueller report and its underlying evidence. House Judiciary Committee Chairman Rep. Jerrold Nadler, D-N.Y., and House Speaker Nancy Pelosi, D-Calif., have said they will ask federal courts to order the documents released. 

Speaker of the House Nancy Pelosi, D-Calif., meets with reporters May 9, 2019, the day after the Democrat-controlled House Judiciary Committee voted to hold Attorney General William Barr in contempt of Congress.

What can a president keep secret?

Executive privilege is commonly thought of as a way to keep secret a president's discussions and memos with his aides. Presidents have asserted it over subjects ranging from the development of environmental regulations to the replacement of U.S. attorneys.

But it doesn't protect everything and it isn't an absolute shield. Even if a court finds that communications could be privileged, the secrecy must be balanced against the need for a prosecutor or the general public to learn the information.

“Even if executive privilege applies, it is not absolute,” said Erwin Chemerinsky, dean of the law school at University of California, Berkeley. “The court would have to decide: does the executive privilege apply here and is there an overriding interest that would justify release of the documents.”

The Supreme Court ruled in the Nixon case that whether a president can keep information secret depends in part on how badly someone else needs it. For example, the high court said that privilege would be stronger for military or diplomatic communications, which weren’t at stake in the Nixon case. The court ruled that the privilege had to be weighed against a prosecutor’s need for information in a criminal case. 

The court hasn't fully spelled out which interests are sufficient to outweigh a president's claim to secrecy. The court suggested in 1974 that prosecutors might have a greater need than Congress or people pursuing civil lawsuits. 

Where that leaves a potential challenge to Trump is unclear.

“The upshot is that we’re in a lengthy mud fight,” Medwed said. “At the end of the day, it’s going to be up to our courts, and most likely the Supreme Court, to decide.”

The Fast and Furious case illustrated the difficulty of asking federal courts to referee. The House committee subpoenaed documents about the investigation that sent thousands of weapons to traffickers in Mexico. Then-Attorney General Eric Holder released some documents, but withheld others under executive privilege. The committee found him in contempt and filed a lawsuit in August 2012. Documents dribbled out for years before both sides essentially gave up.

“I think the scope of executive privilege is something that will be litigated and called into question. It's unclear," said Tara Grove, a professor at William & Mary Law School. "Most of these cases, even if they go to court, we don’t get a final judicial ruling on exactly what is the scope of your executive privilege."

Attorney General Eric Holder testifies June 12, 2012, on Capitol Hill in Washington.

Trump's blanket assertion

Trump began by making the broadest possible assertion of privilege.

Barr redacted four categories of material in the Mueller report dealing with grand-jury evidence, information about pending cases, intelligence material and information infringing on the privacy of people who weren’t charged. The underlying evidence spans millions of pages of classified and unclassified documents bearing on two dozen criminal cases, some of which are ongoing, Barr told Trump in a two-page letter urging him to invoke executive privilege.

“In these circumstances, 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,” Barr said. The department has taken that view before, largely as a way to buy time during congressional investigations. 

Justice officials must now comb through the report and underlying evidence to determine what they think deserves secrecy. Legal experts questioned whether privilege applied at all because Mueller wasn’t a Trump aide. But parts of the investigation dealt with attempts to thwart the special counsel probe, and relied on Trump's aides' accounts of their private conversations, some of which could be privileged. 

Experts said the administration's claim to secrecy seems thin.

“Executive privilege seems inapplicable here,” Chemerinsky said. “There’s no way you can say the entire Mueller report is protected by executive privilege – only those parts that would reveal advice to the president.”

U.S. Attorney General Janet Reno testifies before the

Public then, secret now?

Another wild card in the fight is whether the president can invoke executive privilege after he waives it. 

Trump himself repeated Thursday that he initially waived privilege so his aides could cooperate with Mueller. Don McGahn, then the White House counsel, spent 30 hours with Mueller's investigators. "I didn't have to," Trump said. "I have presidential privilege. I could have stopped everything." 

The White House didn't try to block Mueller's report from becoming public. And the Justice Department had offered to let lawmakers see some of the material – other than grand-jury evidence. At least one, Rep. Doug Collins, R-Ga., accepted and reviewed some of the blacked-out parts of Mueller's report.

Now, though, the White House says that material is privileged – at least for now. And Trump has threatened to use privilege to block McGahn from testifying before Congress. 

“I hope that the department will think better of this last-minute outburst and return to negotiations,” Nadler said. “This is information we are legally entitled to receive and we are constitutionally obligated to review.”

More about President Donald Trump, executive privilege and the Mueller report:

Donald Trump asserts executive privilege over Mueller report as House panel debates holding attorney general in contempt

In rare move, House panel votes to hold Attorney General Barr in contempt over Mueller report

'Slow-motion constitutional car crash': Trump, Congress battle over investigations with no end in sight

This article originally appeared on USA TODAY: President Donald Trump tees up the strangest test yet of executive privilege