President Trump asserted executive privilege over special counsel Robert S. Mueller III’s report Wednesday, his first use of the executive authority in the ongoing constitutional clash with Congress that the courts ultimately may resolve.
“We have talked for a long time about approaching a constitutional crisis; we are now in a constitutional crisis,” House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said moments after the contempt vote. “Now is the time of testing whether we can keep this type of republic, or whether this republic is destined to change into a different, more tyrannical form of government.”
Democrats have been hoping to review Mueller’s findings — and determine whether they should impeach the president — by examining the underlying evidence the special counsel gathered and hold congressional hearings with key witnesses Mueller interviewed. But the Justice Department has refused to relinquish much of that information, despite a congressional subpoena.
Trump and Republicans have cast Democrats as overzealous and unwilling to accept Mueller’s report, which did not establish a conspiracy between the Trump campaign and Russia, which interfered in the 2016 election.
“The American people see through Chairman Nadler’s desperate ploy to distract from the president’s historically successful agenda and our booming economy,” said White House press secretary Sarah Sanders. “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.”
The White House’s invocation of the presidential secrecy prerogative stood in stark contrast to Trump’s frequent boast of “total exoneration” from the Mueller report. Democrats have argued that if Trump truly had nothing to hide, he and Barr wouldn’t be blocking so many of their investigations — including Mueller’s complete findings.
“He has never acted like a person with nothing to hide,” said Rep. Katherine M. Clark (D-Mass.), a member of House Democratic leadership. “I mean, everything he does is trying to escape and stonewall and delay!”
Democrats could vote as early as next week on the Barr contempt citation, according to an individual familiar with internal discussions who spoke on the condition of anonymity because the timeline has not been finalized. That vote would enable House counsels to take Barr to civil court and try to persuade a judge to force him to release Mueller’s evidence, one of many high-stakes legal fights between the executive and legislative branches.
Democrats are also preparing to sue the Trump administration for refusing to turn over Trump’s tax returns and potentially former Trump aides like ex-White House counsel Donald McGahn if they refuse to comply with subpoenas. McGahn was a key witness in Mueller’s probe, but the White House has said it would assert privilege to bar his testimony.
Trump’s lawyers called Congress’s demands for his tax returns flatly unconstitutional Wednesday in another lawsuit, this one filed by Trump and his businesses urging a federal judge in Washington, D.C., to block a House Oversight Committee subpoena to his accounting firm for years of his financial statements.
Trump’s legal team said Congress has no “legitimate legislative purpose” in investigating his past personal dealings. Even if it did, legislation demanding his tax returns and similar proposals “to regulate the President’s finances would be unconstitutional. Congress cannot interfere with the Executive’s execution of his duties, or add qualifications for President,” wrote Trump’s attorneys, led by William S. Consovoy of Arlington, Va.
Trump’s no-cooperation stance creates a conundrum for Democrats as their investigations stall and they face the reality that court proceedings could drag on for months or years.
Some Democrats are losing patience, and increasingly several investigators are talking about using their “inherent contempt” authority under the Constitution that would enable them to fine officials who refuse to cooperate or seek other immediate punishments to force compliance.
House Speaker Nancy Pelosi (D-Calif.) said Wednesday that Trump is “becoming self-impeachable” because of all his efforts to fight congressional investigations, though she has remained firm in her resistance to initiate impeachment proceedings ahead of the 2020 election.
“The point is that every single day, whether it’s obstruction, obstruction, obstruction — obstruction of having people come to the table with facts, ignoring subpoenas . . . every single day, the president is making a case — he’s becoming self-impeachable,” Pelosi said at a Washington Post Live event.
In a lengthy statement after the contempt vote, Justice Department spokeswoman Kerri Kupec said Barr “could not comply with the House Judiciary Committee’s subpoena without violating the law, court rules, and court orders, and without threatening the independence of the department’s prosecutorial functions” and asserted that Nadler “short-circuited” negotiations with the contempt vote.
“It is deeply disappointing that elected representatives of the American people have chosen to engage in such inappropriate political theatrics,” Kupec said.
The White House’s assertion of privilege was broad — covering all of the underlying materials from Mueller’s investigation, such as reports of interviews and notes of witnesses, as well as the entire, unredacted Mueller report. Some legal experts argued the White House and attorney general were simply stalling, making a dubious claim of privilege over the Mueller report they have intensively reviewed to put off a fight in court.
The Justice Department considered it important for the White House to assert executive privilege before the House voted on contempt because, in its view, doing so would effectively invalidate the citation, the person familiar with the matter said. It believed that Barr could not be legitimately held in contempt for withholding materials over which the president had asserted executive privilege, the person said.
But if anything, Barr’s move only redoubled Democrats’ insistence to press ahead with contempt. During a day-long hearing, Democrats criticized the use of privilege as illegitimate because much of the Mueller report has already been made public — and because Trump allowed his aides to cooperate with the special counsel months ago.
“Executive privilege is not a cloak of secrecy that drapes across our nation’s capital from the White House to the Justice Department,” said Rep. Ted Deutch (D-Fla.). “Yet, last night, the attorney general threatened a blanket privilege claim over materials that he knows are not privileged as retribution for the markup we are holding right now.”
Barr released a redacted, 448-page version of the Mueller report on April 18. House Democrats have pressed for the full report because Mueller did not make a decision on whether Trump obstructed justice, and some legal analysts have said he appeared to leave the matter to Congress.
The move to hold Barr in contempt represented just the second time in history that a sitting attorney general would be held in contempt of Congress; the Republican-led House admonished Attorney General Eric H. Holder Jr. in 2012 over his failure to provide documents to GOP investigators.
During the Judiciary panel session, Republicans used their time to defend Barr’s name and tried to divert the conversation to the origins of the Russia investigation, accusing the FBI of being guided by anti-Trump bias.
“I think it’s all about trying to destroy Bill Barr because Democrats are nervous that he’s going to get to the bottom of everything,” said Rep. Jim Jordan (R-Ohio).
Rep. Douglas A. Collins (Ga.), the top Republican on the committee, argued the Barr contempt citation was premature, noting that Republicans waited much longer to hold Holder in contempt than Democrats had with Barr. “Why this rush?” he asked. “Without any valid legislative or administrative reason, we can only assume Democrats, led by the chairman, have resolved to sully Bill Barr’s good name and reputation.”
Barr sent a written request to Trump on Wednesday morning, asking him to assert privilege because the Judiciary Committee had “declined to grant sufficient time” for the Justice Department to review the Mueller materials, which included law enforcement information, information about intelligence sources and methods and grand jury material that would be illegal to release.
“In these circumstances,” Barr wrote, “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.”
Republicans seemed to seize on that reasoning at the hearing Wednesday to discuss the citation.
“You cannot be in contempt for failing to produce what would be illegal to produce without a court order,” said Rep. Louie Gohmert (R-Tex.).
Democrats responded that they were not asking Barr to break the law at all. They had implored him for months to join them in going to a court to get permission from a judge to release grand jury information protected under the law, as was done during the Watergate scandal and for Kenneth Starr’s report on President Bill Clinton.
Barr, however, refused.
The immediate effects of the White House move to claim executive privilege over the report were not entirely clear for Congress. House Democrats had plans to subpoena key witnesses mentioned in Mueller’s report, and some wondered whether such a claim could undermine their bid to receive documents and testimony.
Nadler, in an interview on CNN Wednesday, indicated that he was less confident that Mueller would testify to Congress: “I think the president will try to stop Robert Mueller.”
A Justice Department official, who spoke on the condition of anonymity to disclose private deliberations, said that the assertion of executive privilege Wednesday has “no direct bearing on Special Counsel Mueller’s testimony,” the date and terms of which are still being discussed. But the move could limit what Mueller can say indirectly, by putting particular subject areas off limits.
While Mueller has completed his report, the Republican-led Senate Intelligence Committee is continuing its probe.
The panel has issued a subpoena to Donald Trump Jr., the president’s son, seeking additional closed-door testimony as part of its inquiry, according to people familiar with the summons.
Trump Jr. has been a focus of several probes over his involvement in a June 2016 meeting at Trump Tower with a Russian lawyer who allegedly promised dirt on the Hillary Clinton campaign. Congressional Democrats believe that, during his previous turns on Capitol Hill, Trump Jr. may have lied to investigators about that meeting and whether he told President Trump that the meeting would take place.
On Tuesday, House Intelligence Committee Chairman Adam B. Schiff (D-Calif.) also stepped up his panel’s demands to see the full Mueller report by issuing a subpoena to the Justice Department for its unredacted contents — arguing that because the grand jury information relates to foreign intelligence and counterintelligence, there is no legal requirement that a court intervene before they are able to view the materials.
“The fact that evidence and information may have been gathered during a criminal investigation, including through the grand jury process, and may be unclassified in no way diminishes its nature as foreign intelligence or counterintelligence information that must be provided to the committee,” Schiff wrote in the letter.
Schiff gave the department a deadline of May 15 — the same date Nadler has said lawmakers hope to bring Mueller in for testimony. The subpoena follows letters he sent to the Justice Department demanding access to the full Mueller report that were co-signed by panel ranking Republican Rep. Devin Nunes (Calif.). The subpoena was issued by Schiff alone.
Karoun Demirjian and Ashley Parker contributed to this report.