Trump asserts 'executive privilege' over Mueller report in fight with House Democrats

KEY POINTS

• President Donald Trump asserted executive privilege over materials used to assemble special counsel Robert Mueller's report in a dispute with House Democrats. However, officials left open possibility that assertion will not persist over some or all of the materials being sought by Congress.
• The move came as House Democrats continued to press for the Justice Department to turn over the full Mueller report and other background material used to put it together.
• "This is to advise you that the President has asserted executive privilege over the entirety of subpoeanaed materials," Assistant Attorney General Stephen Boyd wrote Rep. Jerry Nadler, D-N.Y., chairman of the House Judiciary Committee.

President Donald Trump on Wednesday asserted executive privilege over special counsel Robert Mueller's full, unredacted report and materials used to prepare it in a dispute with House Democrats, seeking to keep all those materials out of Congress' hands — at least for the moment.

Trump's "protective assertion" gives him the option to make a "final assertion" on whether to claim executive privilege over only some or all of the Mueller-related materials in the future, according to Attorney General William Barr.

The move came as House Democrats continued to press for the Justice Department to turn over the report materials, which detail Mueller's probe of Russian interference in the 2016 president election, the question of whether Trump campaign officials coordinated with Russians, and possible obstruction of justice by the president himself.

The decision to assert privilege was announced as the House Judiciary Committee, chaired by Rep. Jerry Nadler, D-N.Y., held a hearing on whether to hold Barr in contempt for failing to give Congress the materials that the panel has subpoenaed.

Nadler, in opening the committee hearing, said, "The administration has announced loud and clear that it does not recognize Congress as a coequal branch of government."

"No person ... can be permitted to flout the will of Congress and defy a valid subpoena" Nadler said.

Barr wrote Trump on Wednesday asking him to "make a protective assertion of executive privilege" for the subpoenaed documents. The attorney general said the requested materials include "law enforcement information, information about sensitive intelligence sources and information, and grand-jury information that the Department is prohibited from disclosing by law," according to Barr's letter.

Barr wrote that "you would be making only a protective assertion of executive privilege," which would "ensure your ability to make a final assertion, if necessary, over some or all of the subpoenaed materials."

White House press secretary Sarah Huckabee Sanders said, "The American people see through Chairman Nadler's desperate ploy to distract from the President's historically successful agenda and our booming economy."

"Neither the White House nor Attorney General Barr will comply with Chairman Nadler's unlawful and reckless demands," Sanders said. "Faced with Chairman Nadler's blatant abuse of power, and at the Attorney General's request, the President has no other option than to make a protective assertion of executive privilege."

In a letter to Nadler, Assistant Attorney General Stephen Boyd wrote, "This is to advise you that the President has asserted executive privilege over the entirety of subpoenaed materials."

"This protective assertion of executive privilege ensures the President's ability to make a final decision whether to assert privilege following a full review of these materials," Boyd wrote.

The letter also said, "We are disappointed that you have rejected the Department of Justice's request to delay the vote of" the Judiciary Committee.

Nadler, at his committee hearing, said no person, be they the attorney general or the president of the United States, "can be permitted to be above the law."

"The Trump administration, and its enablers, may brazenly try to cover up the misdeeds uncovered by the special counsel, but on this committee we will represent the American people and ensure the truth is known," Nadler said.

Read Sarah Huckabee Sanders's statement:

Read Attorney General William Barr's letter to President Donald Trump:

The Attorney General Washington, D.C.

May 8, 2019

The President

The White House

Washington, D.C. 20500

Dear Mr. President:

I am writing to request that you make a protective assertion of executive privilege with respect to Department of Justice documents recently subpoenaed by the Committee on the Judiciary of the House of Representatives. In cases like this where a committee has declined to grant sufficient time to conduct a full review, the President may make a protective assertion of privilege to protect the interests of the Executive Branch pending a final determination about whether to assert privilege. See Protective Assertion of Executive Privilege Regarding White House Counsel's Office Documents, 20 Op. O.L.C. 1 (1996) (opinion of Attorney General Janet Reno). The Committee has demanded that I produce the "complete and unredacted version" of the report submitted to me on March 22, 2019, by Special Counsel Robert S. Mueller, III, regarding his investigation of Russian interference in the 2016 presidential election. The Committee also seeks "[a]ll documents referenced in the Report" and "[a]ll documents obtained and investigative materials created by the Special Counsel's Office." The Committee therefore demands all of the Special Counsel's investigative files, which consist of millions of pages of classified and unclassified documents bearing upon more than two dozen criminal cases and investigations, many of which are ongoing. These materials include law enforcement information, information about sensitive intelligence sources and methods, and grand-jury information that the Department is prohibited from disclosing by law.

Consistent with paragraph 5 of President Reagan's 1982 memorandum about assertions of executive privilege, the Department requested that the Chairman of the Committee hold the subpoena in abeyance and delay any vote recommending that the House of Representatives approve a resolution finding me in contempt of Congress for failing to comply with the subpoena, pending a final presidential decision on whether to invoke executive privilege. See Memorandum for the Heads of Executive Departments and Agencies, Re: Procedures Governing Responses to Congressional Requests for Information at 2 (Nov. 4, 1982). The Department made this request because, although the subpoenaed materials assuredly include categories of information within the scope of executive privilege, the Committee's abrupt resort to a contempt vote—notwithstanding ongoing negotiations about appropriate accommodations—has not allowed sufficient time for you to consider fully whether to make a conclusive assertion of executive privilege. The Chairman, however, has indicated that he intends to proceed with the markup session scheduled at 10 a.m. today on a resolution recommending a finding of contempt against me for failing to produce the requested materials. In these circumstances, you may properly assert executive privilege with respect to the entirety of the Department of Justice materials that the Committee has demanded, pending a final decision on the matter. As with President Clinton's assertion in 1996, you would be making only a preliminary, protective assertion of executive privilege designed to ensure your ability to make a final assertion, if necessary, over some or all of the subpoenaed materials. See Protective Assertion of Executive Privilege, 20 Op. O.L.C. at 1. As the Attorney General and head of the Department of Justice, I hereby respectfully request that you do so.

Sincerely,

William P. Barr Attorney General

Read Assistant Attorney General Stephen Boyd's letter:

Dear Chairman Nadler:

U.S. Department of Justice

Office of Legislative Affairs

Washington, D.C. 20530

May 8, 2019

We are disappointed that you have rejected the Department of Justice's request to delay

the vote of the Committee on the Judiciary on a contempt finding against the Attorney General

this morning. By doing so, you have te1minated our ongoing negotiations and abandoned the

accommodation process with respect to your April 18, 2019, subpoena of confidential Department

of Justice materials related to the investigation conducted by Special Counsel Robert S. Mueller,

III. As we have repeatedly explained, the Attorney General could not comply with your subpoena

in its current form without violating the law, court rules, and court orders, and without threatening

the independence of the Department of Justice's prosecutorial functions. Despite this, we have

attempted to engage with the Committee in good faith in an effort to accommodate your stated

interest in these materials. Unfortunately, rather than allowing negotiations to continue, you

scheduled an unnecessary contempt vote, which you refused to postpone to allow additional time

for compromise.

Accordingly, this is to advise you that the President has asserted executive privilege over

the entirety of the subpoenaed materials. As I indicated in my letter to you last night, this protective

assertion of executive privilege ensures the President's ability to make a final decision whether to

assert privilege following a full review of these materials. See Protective Assertion of Executive

Privilege Regarding White House Counsel 's Office Documents, 20 Op. O.L.C. 1 (1996) (opinion

of Attorney General Janet Reno). Regrettably, you have made this assertion necessary by your

insistence upon scheduling a premature contempt vote