Executive privilege cases favor Trump in dispute with House Democrats

Joe DiGenova and Victoria Toensing:

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Executive privilege is not specified in the Constitution, yet courts have consistently ruled that presidents have the right to withhold certain documents and information from the other branches. Two of those categories are the “deliberative process” — materials that reveal how government decisions are made — and the “confidentiality of presidential communications.”

In an interview last month discussing the House subpoena for an unredacted Mueller report, Nadler claimed that President Trump cannot use “executive privilege” to hide behind anything in the report, citing the Supreme Court’s 9-0 decision in the Nixon tapes case. If Nadler reads that case, he will learn that the court ruled the White House had to produce evidence (tapes, not testimony) subpoenaed for a criminal trial, not for a congressional hearing. Even then, the court ruled that executive privilege had to be given deference, such that the tapes be provided in camera so the trial court would provide only material that was relevant.

House Democrats have argued that because Attorney General William Barr publicly released a redacted Mueller report, the White House waived any claim of executive privilege to the full report and all its underlying documents. There is another case Nadler should read: The D.C. Circuit decided the seminal post-Nixon tapes case, which set a high standard for compelling evidence from the White House.

The facts involve President Clinton’s agricultural secretary, Michael Espy, who was criminally charged by the independent counsel with taking things of value for favorable business decisions. The White House counsel had carried out its own investigation of Espy’s conduct and issued a report. The independent counsel, a la Nadler, subpoenaed all the underlying documents and notes of any meetings regarding the released Espy report. Clinton claimed executive privilege.

The court refused the independent counsel’s request. Because the deliberative process exists to aid decision-making, it would not infer waiver for anything but the already released report (and one document given to defense counsel), ruling: “[R]elease of a document only waives … privileges for the document or information released.”

Significantly, the D.C. Circuit also held that an entity subpoenaing executive privilege information also must demonstrate that the evidence “is important to the ongoing grand jury investigation and why [it] is not available from another source.” No grand jury here. Only a House committee hearing.

If Nadler read relevant case law, he would understand that courts have set a standard for Congress to question witnesses. Over six decades ago, the Supreme Court overturned a misdemeanor conviction for a witness who refused to answer questions before the Committee on Un-American Activities about whether specific people he knew were communists. The witness was not a member of the executive branch — but the judicial standard applies to Nadler’s subpoena of McGahn.

The court faulted the House for having vague authorizing language, which stated that the committee may investigate the “extent, character, and objects of un-American activities in the United States” and such activity “instigated from foreign countries … .” Thus, the court observed, the witness could not ascertain what questions were pertinent to the congressional investigation in order to determine which ones he could refuse to answer. “Protected freedoms should not be placed in danger in the absence of a clear determination by the House or Senate that a particular inquiry is justified by a specific legislative need.”

If Nadler had read this case he might not have framed the subpoena’s purpose as “touching matters of inquiry committed to said committee … .” What is the legislative purpose?
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There is more.

Nadler appears frustrated by the failure of Mueller to provide evidence of Russian collusion so he is going on a fishing expedition looking for other excuses to attack the President.  The bad faith of the Democrat leadership since the 2016 election is unending despite a lack of evidence to support their claims.  Their arguments about obstruction are illogical.