Heartburn spread across Washington after the President’s lawyer Rudy Giuliani suggested that the White House might assert executive privilege as a way to bury at least parts of Special Counsel Robert Mueller’s much-anticipated report at the end of his investigation. The way ahead for that report is, to be sure, uncertain. Worrying—especially right now—about an assertion of executive privilege seems premature and misplaced. Worrying, however, about whether that full report will see the light of day is entirely well placed—but that’s due to a broader set of reasons, most of which do not involve executive privilege. It’s time to focus on where the real threat to Mueller’s report reaching the public may arise. The assertion of executive privilege is not it.

How did we get here? A recent New Yorker piece told us that Giuliani anticipates President Trump will invoke executive privilege to prevent full public disclosure by Acting Attorney General Rod Rosenstein of Mueller’s final report. But something is wrong with this picture. A Presidential executive privilege claim should play no part in the eventual decision by Rosenstein (or whoever is serving as Attorney General for these purposes at that time) about whether to release publicly, in whole or in part, the confidential report that Mueller prepares.

Rather, when the question whether to release Mueller’s report to the public eventually arises, Rosenstein will have to decide if such a disclosure is “in the public interest” and consistent with law. That determination would clearly appear to be something that the Attorney General’s boss – the President – could weigh in on and could even bind the Attorney General through an official order. All of this could be done without any resort to purportedly applicable evidentiary privileges. The reason there’s any talk about assertion of privileges perhaps arises from President Trump’s failure to grasp that he is the head of the Executive Branch and therefore can issue direct orders to the members of that branch, and that he is accountable for whatever decisions and actions either he or officials in his branch of government take.

To understand this point and to realize why executive privilege should have practically no relevance, it is necessary to look first at the carefully crafted Justice Department regulations governing the appointment and operation of a Special Counsel such as Mueller.

Attorney General Janet Reno promulgated these regulations in 1999, during the Clinton Administration. They came about after Congress let lapse the statutory authority that had set up an Independent Counsel scheme. That scheme (under which various Independent Counsels – such as Ken Starr – operated) had become highly controversial and viewed by many as a policy failure (even though its constitutionality had been upheld by the Supreme Court in Morrison v. Olson).

It is important to keep in mind that the Reno Special Counsel regulations were not promulgated under a specific instruction and authorization by Congress to implement regulations governing Special Counsels appointed to investigate conduct by high-level Executive Branch officials. They were instead issued under the general “Housekeeping Statute” that governs all federal agencies and under statutes generally defining the role of the Attorney General. That’s significant because it provides a fuller understanding of the extent to which the President has power to exercise control in this space.

Unsurprisingly, the Special Counsel regulations nowhere mention or discuss the President, and thus say nothing about the relationship between the President and his Attorney General or any Special Counsel. They do provide that the Attorney General may appoint a Special Counsel, and that such an officer has the power and independent authority of United States Attorneys (all of whom report to the Attorney General). A Special Counsel must comply with the rules, regulations, procedures, practices, and policies of the Justice Department. Significantly, the Attorney General may request that a Special Counsel explain to him any of the Special Counsel’s investigative or prosecutorial steps, and the Attorney General may even override the Special Counsel, if he concludes that the Special Counsel’s actions are inappropriate or unwarranted in light of DOJ practices. (If the Attorney General does override a decision by a Special Counsel, that action triggers an eventual limited confidential reporting requirement to a select few Congressional leaders.) The Attorney General may also fire a Special Counsel for violating DOJ policies or other good cause.

Of particular relevance to Giuliani’s remarks, the DOJ regulations provide that, at the conclusion of his work, a Special Counsel shall deliver to the Attorney General a confidential report explaining his prosecutorial decisions. The Attorney General may then determine that public release of a Special Counsel’s report is in the public interest, as long as such disclosure complies with applicable legal restrictions.

Finally, there’s the question of how these regulations interact with potential judicial review of these procedural decisions. The DOJ regulations state that they do not create, and cannot be relied upon to create, any rights for any person or entity enforceable in court in any criminal, civil, or administrative proceeding – as is typical for such regulations governing structures and processes within a department or agency.

In sum, under the legal regime in which Mueller and Rosenstein operate, a Special Counsel is a creature of the Justice Department, appointed by the Attorney General, whose decisions may be overruled by the Attorney General, and who may be fired by the Attorney General.  Whenever Mueller concludes his work, he will hand the then-Attorney General a confidential report, which the Attorney General may disclose if he decides that doing so is in the public interest, likely without any judicial review of that decision.  (If the Attorney General decides against full or partial disclosure, Congress might issue a subpoena for Mueller’s full report, and individuals could seek access through Freedom of Information Act requests; the possible outcomes of such actions raise their own complex legal issues, with uncertain results.)

As previously noted, the applicable DOJ regulations place no restrictions on the President, including on his relationship with the Attorney General.  The Attorney General is a principal officer under Article II of the Constitution, who serves at the pleasure of the President, and is thus subject to the direction and orders of the President. Alexander Hamilton explained in Federalist Paper No. 70 that the Executive Branch is to be headed by a single individual so that this branch can operate energetically and efficiently, as well as in a way that is accountable to the people of the United States. The President is thus meant to be responsible for anything the Executive Branch and its officials do, and – perhaps even more importantly – to be held responsible as such by the American people.

President Trump’s many tweets and other statements, particularly those regarding the Attorney General and the Justice Department, suggest that he either doesn’t fully understand how our Constitution vests him with the ultimate decision-making authority as the chief executive, or he is avoiding that constitutional fact because with such recognition comes responsibility. In deciding whether the public interest calls for public release of Mueller’s final report, the Attorney General will be subject to the direction and control of the President. At that point, the relationship between the Attorney General and the President cannot be described as truly adversarial, because the President can direct the Attorney General at will and can remove him at will, and the President is ultimately responsible to the American people for any and all actions the Attorney General takes.

Properly understood, it simply makes no sense to speak of invocations by the President of executive privilege or any other litigation privileges against his own Attorney General. It is beyond the scope of this piece, but I should add that it would be most unfortunate for a President to involve himself in the domain of criminal prosecutorial discretion. Such action would seriously undermine public confidence in the criminal justice system, and provide potential defenses for defendants who could raise due process and selective prosecution claims.

In the final analysis, talk of executive privilege in this context is a distraction. It suggests that experts should be debating the legal basis on which Trump might try to bury Mueller’s report. But the President’s power, properly understood, means that executive privilege is a red herring at this point, and, indeed, a potentially dangerous distraction insofar as it pushes our public discourse toward debating the relevance and legality of the privilege’s assertion. Whether Mueller’s report is hidden from the public is, simply put, a choice for the President to make. It’s the type of choice for which the American public is entitled to hold the President responsible. And, if the President makes the dangerous and foolish decision to keep Mueller’s work from the American people, outrage should be directed not at legal doctrines involving executive privilege, but at a President who will have made a most regrettable decision.

Of course, it’s entirely possible that actions taken by the President toward the Attorney General concerning the Mueller investigation might meet the definition of obstruction of justice in certain circumstances. But that’s a very thorny and difficult issue quite separate and apart from whether the President can or should be asserting litigation privileges against his own Attorney General in the context of deciding whether to release a confidential Special Counsel report. And it is also an issue distinct from whether burying the report by, for example, ordering the Attorney General to do so on threat of being fired would be a dereliction of the Presidential duty to take care that the laws are faithfully executed.

Some might think that the Supreme Court’s decision in United States v. Nixon tells a different story about how possible assertions of executive privilege by President Trump against Acting Attorney General Rosenstein should be understood. But that decision dealt with a thoroughly different factual scenario and tells us very little about the current situation. In that case, the Court was operating in the context of an ongoing federal criminal prosecution against various individuals, brought about by a grand jury indictment. That indictment mentioned President Nixon as an unindicted co-conspirator. A pre-trial, third party subpoena had been issued to Nixon by the trial court at the behest of the then-Special Prosecutor, and Nixon made a broad assertion of executive privilege so that he would not have to provide materials to the court and the prosecutor.

The Special Prosecutor scheme at that time, described in detail by the Nixon Court, was very different from the one governing Mueller. The Nixon-era model provided for an appointment of a Special Prosecutor whose decisions and actions would not be countermanded by the Attorney General. What’s more, the Justice Department regulations at that time expressly relied upon an assurance from the President to the Attorney General that he would not exercise his constitutional powers to fire the Special Prosecutor or limit his independence. And the Special Prosecutor could not be fired unless the President first notified Congressional leaders and obtained their consensus about removal or interference with the Special Prosecutor.

Faced with these particular circumstances, the Supreme Court held that – in an opinion that emphasized it was narrow and situation-specific – the President could assert executive privilege in an attempt to have the district court withdraw the subpoena for Presidential materials. The Court nevertheless ruled that, in the context of an ongoing criminal prosecution and the absence of any indication from the President of military, diplomatic, or other national security concerns with the subpoena, President Nixon had not made a sufficient showing to justify refusing to cooperate with an active criminal prosecution of other people, for which his materials were relevant.

Nothing in the Nixon ruling calls into doubt the conclusion that the very discussion, let alone an assertion, of executive privilege by President Trump makes no sense with respect to Rosenstein’s ultimate determination whether the public interest favors disclosure of Mueller’s report. In short, the notion that executive privilege applies in this space is a category mistake. Quibbling over Nixon’s relevance is not where our attention should be focused. It should be on a decision that President Trump alone will face: Will he exercise the authority he possesses to intervene and stop the American people from seeing Mueller’s critical conclusions?


[Editor’s note: Readers may also be interested in Jessica Marsden and Andy Wright’s “Executive Privilege and the Public Interest: Why the President Can’t Block Release of the Mueller Report”]

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