Trump’s noble moment: Waiving executive privilege on Mueller’s report
Attorney General Bill Barr sent a letter to Congress on Friday, stating that he intends to release a public version of special counsel Robert Mueller’s report in a matter of weeks. As with last Sunday’s release of a summary of the report, just two days after receiving it from Mueller, Barr’s handling of the report is the bureaucratic equivalent of Nascar speed.
However, the most notable line of Barr’s letter was largely overlooked. Indeed, from a historical perspective, it could prove to be one of the important lines of the entire Justice Department deliberation over the report.
Barr stated that “There are no plans to submit the report to the White House for a privilege review.” And that would constitute a total waiver of executive privilege — an act that is both commendable and unprecedented in its degree of transparency.
The waiver of executive privilege has gone with nary a mention in coverage, as has the impressive speed and scope of Barr’s disclosure in handling the report. Yet, for critics of executive privilege, this is a decision that is not only historic but good for our democracy.
Many of us have criticized Trump for inappropriate comments that undermine the integrity and dignity of his office. That will be a lasting and troubling part of his legacy. However, this will also be part of the record, too. While praise is only begrudgingly given to this president by a media he constantly (and offensively) labels as “the enemy of the people,” the decision to waive privilege is not just worthy of praise but could well eclipse his predecessors in yielding inherent powers to the public interest.
In his letter to Congress, Barr noted that “although the President would have the right to assert privilege over certain parts of the report,” he decided not to do so. It was an extraordinary moment not only for Trump but for Barr. As I explained to the Senate Judiciary Committee at Barr’s confirmation, he has a robust view of executive power and, over the course of his career, has established one of the most unyielding, consistent defenses of executive privilege.
That line means Barr will confine his redactions of the report to four well-recognized areas: classified information, privacy-protected information, information related to ongoing investigations, and grand jury information. Mueller reportedly is helping to decide what information to redact.
Trump could have claimed sweeping privilege and tied up the report in the courts for much of the remaining two years of his term. Although Democrats have threatened to subpoena the report, such fights over hundreds of pages and thousands of sources can be like invading Russia in winter, as courts try to comb out privileged, protected information.
While Trump consented to Mueller interviewing his close aides, the disclosures made to Mueller were not waivers of privilege because Mueller is part of Trump’s Justice Department. Conversely, the Trump team has preserved privilege claims in testimony before Congress.
Even before this decision to waive privilege, Trump allowed far greater transparency than his predecessors.
President Barack Obama was repeatedly criticized for his sweeping claims of executive privilege and refusal to comply with congressional oversight committee investigations. The “Fast and Furious” investigation was a classic example: The Bureau of Alcohol, Tobacco, Firearms and Explosives tried to track guns across the Southwest border, and one of those guns was used to kill a federal officer. The Obama administration stonewalled and slow-walked “Fast and Furious” document demands from Congress. The result was that former Attorney General Eric Holder was held in contempt of Congress, but the Justice Department refused to submit the case to a grand jury — a decision I heavily criticized at the time.
The same congressional Democrats now clamoring for disclosure on Mueller were conspicuously silent when President Obama refused clearly appropriate demands for disclosure in such investigations. District Judge Amy Jackson Berman rejected the executive privilege claims of the Obama Administration in the “Fast and Furious” case, noting that those were unsupported.
While Obama pledged to be the most transparent president in history, he immediately sought to prevent disclosures to the public and the media. The Associated Press documented the systemic denial of access to information by the Obama administration, which only became more hostile to press and public inquiries with each passing year.
If you separate his rhetoric from his actions, Trump’s record has been more limited in his claims compared presidents like Obama, who readily embraced notions of the “imperial presidency.” While Obama often voiced appealing sentiments of restraint and respect for constitutional authority, his record in the courts and Congress was breathtakingly extreme. Conversely, while Trump’s rhetoric is extreme and autocratic, his record is far more moderate on privileges claims.
Other presidents, such as George W. Bush, lost key court challenges to their own excessive claims of executive privilege. Bill Clinton invoked his inherent powers to refuse to testify and lost in spectacular fashion before the Supreme Court; his Administration also used privilege to stonewall Congress on investigative demands.
That is why Trump has been something of an enigma, legally.
None of this fits an easy narrative. It is hard to praise Trump for his restraint when he is rallying supporters in Michigan with ad hominem insults about “pencil-neck Adam Schiff” and attacks on the media. Yet, the more important measure historically is how presidents actually use their power and privileges.
Trump’s handling of the special counsel investigation and report reflects this anomaly. While Trump was unrelenting in his attacks on the special counsel, his actions stand in sharp contrast: He didn’t fire Mueller. He didn’t fire Deputy Attorney General Rod Rosenstein, who appointed Mueller and oversaw the investigation. He is not accused of destroying evidence or withholding resources from the investigation.
As for the report, Barr shocked Washington with the speed by which he released the summary of Mueller’s conclusions. He now is on track to release the public report in a fraction of the expected time for reviewing and redacting hundreds of pages, stating: “Everyone will soon be able to read it on their own. I do not believe it would be in the public’s interest for me to attempt to summarize the full report or to release it in serial or piecemeal fashion.”
That sounds a lot like transparency, and that is something we have not seen from a president in a very long time.
The irony is that the report does not, as Trump claims, “totally exonerate” him. The report is likely to be quite negative in its portrayal of Trump’s comments and conduct. Exoneration is not just a question of whether a president is a felon. We demand a bit more from our presidents than staying just short of the criminal code of conduct.
However, Trump has built an undeniable record of transparency during this investigation that could be cited for years by advocates as a gold standard for future investigations.
That’s right, Trump could have created a legacy here — and it does not involve an all-caps tweet.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.