On Mueller Report, Barr Says No Executive Privilege Redactions. But Look for Assertion Later.

While others digest and analyze the substantive revelations in this redacted version of the Mueller report, I want to touch briefly on Congress’ access to further information related to the Special Counsel’s investigation going forward.

During his press conference this morning, Attorney General William Barr indicated that White House counsel reviewed the redacted version of the Mueller report and that President Trump elected not to assert executive privilege. Further, Barr asserted that “no material has been redacted based on executive privilege.” That’s because the redactions mean the White House didn’t have to make final decisions about whether to assert it yet.

Rather, the Department of Justice coded four categories of redactions: 1) grand jury materials, 2) harm to ongoing criminal matters, 3) personal privacy, and 4) investigative techniques or other secret sources and methods of U.S. government information collection.

Under traditional Department of Justice Office of Legal Counsel doctrine, each of those four categories of information in which the executive branch maintains a confidentiality interest could constitute a component of an assertion of executive privilege. As such, Barr appears to be using the term “executive privilege” as shorthand for two of its components: those designed to protect presidential communications and executive branch deliberations (whether or not they involve the president).

A few points:

First, because the report has now been publicly released, the Trump administration by default waives executive privilege for all unredacted information in it.

Second, executive privilege has not been formally waived with respect to any of the material beneath the redactions by virtue of the Mueller report’s redaction process. If Congress insists on receipt of an unredacted version of the Mueller report, and that dispute were to escalate to a subpoena fight, the issue of executive privilege will come back with a vengeance. Under practices dating back at least to the Clinton administration, a presidential assertion of executive privilege does not ripen until Congress schedules a vote to hold an executive branch official in contempt — here, likely Attorney General Barr. That would be the moment the President would decide whether to assert privilege formally.

Third, the planned opportunities for in-person review for certain members of Congress of unredacted portions of the report at the Department of Justice will affect, but not resolve, executive-legislative information tussles. Barr has indicated a limited number of members of Congress will be afforded an opportunity to review — in camera — the material underneath all of those redactions except those marked as grand jury information. That is a fairly common executive branch accommodation offer, designed to restrict — and maintain some control over — information flow.

Fourth, early indications suggest that an in camera review will be unsatisfactory to the majority in Congress. I would anticipate Congress will engage in the review, while reserving its rights to compulsory production of the unredacted report, with an eye toward issuing subpoenas thereafter.

But one cautionary note to Congress: Any court that ultimately rules on a claim of executive privilege will balance the strength of legislative need for the information against the strength of the executive branch’s need for confidentiality. Under that balancing test, Congress’ access to documents in camera will lessen Congress’ legal argument that its information needs are stronger than any executive branch confidentiality. In other words, by offering the information confidentially to Congress, the executive branch will have successfully weakened, to a degree, Congress’ argument that the full report must be released in order to fulfill its duties.

Fifth, Congress may still seek to hear from Mueller and his team directly. At his morning press conference, Barr indicated he does not object to Mueller testifying. The investigating committees also may seek the investigative files, including the FBI witness interview memoranda (called “302s”).

Finally, the Mueller report presents a roadmap for investigating committees to conduct independent interviews with identifiable witnesses. Grand jury secrecy only shields information about the grand jury process itself — not the underlying intrinsic information about, say, Russian interference, Trump campaign activities, or White House activities vis-à-vis the investigation.

Now released, the redacted Mueller report will only continue to generate a significant amount of congressional investigative activity from here.

IMAGE: U.S. Attorney General William Barr speaks in advance of the release of the redacted version of the Mueller report as U.S. Deputy Attorney General Rod Rosenstein (R) and U.S. Acting Principal Associate Deputy Attorney General Ed O’Callaghan listen at the Department of Justice April 18, 2019 in Washington, DC. (Photo by Win McNamee/Getty Images)

 

About the Author(s)

Andy Wright

Senior Fellow and Founding Editor of Just Security, Partner at K&L Gates, former Associate Counsel to the President in the White House Counsel’s Office. Follow him on Twitter (@AndyMcCanse).