Tag: Jerrold Nadler

The President’s Privilege

 

The political winds are howling in Washington. The Democrats in the House of Representatives led by Representative Jerrold Nadler, Chairman of the House Judiciary Committee, are forging forward with a contempt citation against President Trump’s Attorney General William Barr. The charge: the failure to turn over to the House Committee a full and unredacted version of the Mueller report, along with the evidentiary record that Mueller compiled. The objective: to breathe new life into the obstruction charge on which Mueller declined to exonerate the President.

In a previous column, I argued that that the obstruction charge against Trump was relatively weak. Following the Nadler offensive, President Trump claimed that executive privilege covered all documents and witness testimony that formed the basis of the Mueller report. This broad claim of executive privilege has brought forth a torrent of protest from the president’s many detractors. For example, Michael Conway, former counsel to the House Judiciary Committee during the impeachment of Richard Nixon in 1974, proclaimed that “Trump’s executive privilege claims over the Mueller report are as preposterous as Nixon’s claims during Watergate.”

It is of course difficult to predict whether Trump’s claim of executive privilege will prevail in whole or in part. Attorney General Barr surely seems on strong ground, wholly without any appeal to executive privilege, in insisting that he cannot release material contained in the redacted reports that he is legally required to keep confidential. In addition, as Professor Jack Goldsmith of Harvard has pointed out, the Clinton Justice Department’s regulations governing all independent special counsels, Mueller included, give to Barr, as Attorney General, “ultimate responsibility for the matter and how it is handled.” Barr’s basic obligation under the law was to “notify” Congress of the receipt of the Mueller report, and to release to Congress those portions of it that he “may determine” would be consistent with the public interest, so long as he complied “with applicable legal restrictions.” All of Mueller’s investigatory work ended with the submission of his report on March 22, and his public criticism of Barr in his letter of March 27, insisting that his summary of the report “did not fully capture the context, nature, and substance of this Office’s work and conclusions,” were outside the scope of his original charge, as White House Counsel Emmet Flood pointed out in his powerful rebuttal letter of April 19.