Executive privilege and the Mueller report: A battle of constitutional proportions

It’s been almost a month since the Justice Department released a highly redacted version of Special Counsel Robert Mueller’s long-awaited report. The report contains official findings on the in-depth investigation into Russian interference in the 2016 presidential election, including possible links to the Trump campaign, as well as possible obstruction of justice by the president himself.

However, the report has raised more questions – and controversy – than it settled. And the circumstances surrounding its redacted release have fueled backlash among Democrats and pointed criticism by Mueller.

The Barr Summary

Mueller delivered his 448-page report to Attorney General William Barr on March 22. Two days later, Barr released a 4-page summary of the report. In his summary, Barr revealed that the investigation did not find evidence of Russian collusion within the Trump campaign.

What about Trump’s possible obstruction of justice? Barr stated that the Special Counsel “ultimately determined not to make a traditional prosecutorial judgment.” Barr then went on to claim that it was up to him – along with Deputy Attorney General Rod Rosenstein – to make the final determination on Trump’s alleged obstruction of justice.

Wait. What?

Was it really the duty of an attorney general – one who was appointed by a president who was the subject of the investigation – to make that call? Lest anyone forget, Barr had “auditioned” for the role of AG by sending an unsolicited 19-page letter to the Trump administration which ripped into the legitimacy of the Mueller investigation and argued that a United States president cannot legally be deemed to have obstructed justice.

Or did Mueller indicate – possibly within a redacted portion of the report – that Congress should make that determination? Given that the Department of Justice refuses to turn over the unredacted report to Congress, despite a subpoena from the House Intelligence Committee, we don’t know.

In any event, Barr’s summary quickly came under fire. And political opponents weren’t the only ones to speak up against it. Mueller himself criticized the adequacy of the summary, stating in a letter to the AG that it failed to “fully capture the context, nature and substance” of his report.

Mueller’s Executive Summaries

It became apparent that Mueller’s team had prepared executive summaries of the report – summaries that had been condensed and carefully written so that they could be shared with the public, without redaction. And yet AG Barr chose not to immediately share those summaries, withholding them until April 18 – more than three weeks after the release of his own summary.

Why the delay? And why did it take urging from Mueller’s team and outcry from Democrats, as well as a tense phone call and strongly worded letter from Mueller to Barr, to make that release happen?

AG Barr would likely have never released the summaries because they paint a very different picture than Barr’s summary and statements. It appears that the Mueller report is much worse for Trump than Barr’s summary would indicate.

One line from Mueller’s summary in particular seems to indicate what he thought the next step would likely be upon the release of his report: “The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.”

Constitutional Crisis?

On May 8, the House Democrats on the Judiciary Committee voted to hold AG Barr in contempt of Congress for failing to provide them with the unredacted Mueller report and supporting evidence. That same day, in response to the contempt resolution against Barr (and at Barr’s urging), President Trump claimed executive privilege over the Mueller report and its underlying evidence.

Executive privilege is a somewhat murky doctrine dating back to the Watergate era. It potentially shields presidents from having to disclose candid conversations with advisors, much like attorney-client privilege. Both are meant to foster frank and open discussion.

The contours of executive privilege, however, aren’t well-defined. And numerous legal experts have cast doubt on whether it even applies in this context – much less whether it has the sweeping scope claimed by the Trump administration.

It seems we’re headed toward a full-blown constitutional crisis. The issues at hand are foundational to our system of democracy. For example, how does the broad exercise of executive privilege fit within a system of checks and balances? More specifically, how can a president claim that a report on an investigation – involving allegations of his own wrongdoing – cannot be seen by Congress, which is a critical check on the president of the United States?

The outcome may shape the balance of power in our nation for a long time to come.