Executive privilege case law favors Trump, not Nadler

After subpoenaing former White House counsel Don McGahn, the House Democrats became heady with visions of former White House counsel John Dean’s congressional testimony damning President Nixon dancing in their heads. But House Judiciary Chairman Jerry Nadler (D-N.Y.) should read some case law.

The committee’s subpoena requires McGahn’s testimony on May 21, and documents and communications “referring or relating to” 36 specified incidents produced by May 7. All 36 describe executive privilege information, such as the “resignation or termination of Michael Flynn,” “reversing … Jeff Sessions’s recusal,” “Presidential pardons” and the “termination of James Comey.” 

{mosads}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?

Nadler should know that courts view congressional investigations differently than criminal investigations. The D.C. Circuit refused to direct the White House to turn over to a Senate committee the same Nixon tapes that the Supreme Court had ordered be produced to the Watergate special prosecutor as evidence in the criminal case. After transcripts of the Nixon tapes had been released, the Senate Select Committee on Presidential Campaign Activities pursued the release of the entire tapes, sans redactions and in audio, claiming the committee needed to discern any conflicts in testimony and to hear inflections in tone. The court found a “clear difference between congressional legislative tasks and a grand jury … .” It held that the committee needed to show that the “subpoenaed evidence is demonstrably critical to the responsible fulfillment of the committee’s functions.” Reforming the electoral system did not pass the test.

In an unprecedented decision, President Trump did not assert executive privilege for any document or testimony throughout the special counsel’s investigation. Thus, McGahn was allowed to be interviewed for more than 30 hours, exposing all the rants and frustrations of a man falsely accused of a crime he did not commit. One has to wonder what rantings President Clinton, who asserted executive privilege a record 14 times, expressed during the Monica Lewinsky investigation. Unlike Trump, Clinton did not release any of his lawyers to be interviewed.

A member of Nadler’s Judiciary Committee, Rep. David Cicilline (D-R.I.), has claimed Congress has an “inherent right” to enforce subpoenas by whatever means at its disposal. That must mean going to court. If the Democrats read the case law, they will learn they will lose.

Victoria Toensing is a former deputy assistant attorney general in the Department of Justice and former chief counsel to the Senate Select Committee on Intelligence. Joseph diGenova is a former U.S. attorney for the District of Columbia and a former independent counsel for the Justice Department. They are married and founding partners in the Washington law firm of diGenova & Toensing.