Executive privilege is back in the news, this time more controversial than at any time since the Watergate scandal that led to President Richard M. Nixon’s resignation. President Trump has made what the White House calls a “protective assertion of executive privilege” in an attempt to prevent Congress from getting access to the full Robert Mueller Report.
Executive privilege is a recognized power of the president to withhold documents or testimony from those with compulsory power — congressional committees or a special counsel. At times presidents have secrecy needs. Demands for access to executive branch information occasionally may have to yield to those needs.
But executive privilege is a limited presidential power and one that is balanced by the needs of the other branches of the government. Congress and special counsels need access to information to properly conduct their responsibilities. Presidents cannot simply prevent information from coming out by uttering the words “executive privilege” at any time. There must be some underlying rationale for the claim of privilege.
Nixon’s attempts to conceal wrongdoing by claiming executive privilege failed when the U.S. Supreme Court ruled that he must turn over the incriminating White House tapes. The court made it clear that executive privilege is a legitimate power of the presidency, but that sometimes the needs of the other branches are more compelling. In an investigation of alleged crimes, the need for evidence outweighs a claim to secrecy.
House Judiciary Committee Chair Jerry Nadler calls the current situation a “constitutional crisis,” recalling the language of the Watergate era. Attorney General Bill Barr refuses to testify and the president in asserting executive privilege is making a sweeping claim that he can prevent any information about the Mueller Report from going public.
Whether a real “crisis” yet, Trump’s executive privilege stand is not the only controversial one since Watergate. President Bill Clinton unsuccessfully tried to use executive privilege to conceal testimony and other evidence in the scandal that resulted in his impeachment. George W. Bush had multiple executive privilege controversies. Perhaps most similar to today, nearly seven years ago, President Barack Obama made an executive privilege claim after the House had held his attorney general in contempt for not providing documents related to the Fast and Furious controversy.
Where does the present controversy go from here? With the House Judiciary Committee holding Barr in contempt the next step is for the entire House to vote. If approved, enforcement falls on the U.S. attorney in the District of Columbia who will likely decide not to act. The House will then be forced to file a civil lawsuit against Barr. There is little likelihood of a quick resolution if the dispute reaches the courts. Only recently did the Department of Justice and House of Representatives reach a settlement in the Fast and Furious lawsuit.
Trump’s executive privilege claim cannot provide an absolute bar for the Department of Justice to release all or parts of the redacted sections of the Mueller Report. “Protective assertion” means that the privilege claim gives the president (or the Justice Department) time to review the materials in order to determine if they should be released.
Information being withheld actually might not be protected under an executive privilege claim. Instead, numerous federal laws protect the disclosure of information, including the Federal Rules of Criminal Procedures and Freedom of Information Act. Disentangling what can and cannot be disclosed based on federal laws, and what can only be protected based on privilege is not always clear.
Although there are many ways to overcome an executive privilege claim, a credible allegation of corruption or other wrongdoing is the strongest basis for doing so. Other justifications that can overcome executive privilege claims include a congressional committee fulfilling its oversight or lawmaking functions; a previous waiver of privilege; and the existing release of the information by other means such as White House staff talking to the media.
Taking a step back, there is no doubting that the House has a right to investigate and ask questions related to the potential influence a foreign power had with a presidential campaign. That includes calling witnesses and seeking documents related to the special counsel’s investigation that sought to determine if there were connections between Trump’s presidential campaign and Russia. There must be more than a claim of executive privilege by the president in order to prevent the legitimate constitutional oversight functions of Congress from occurring.