WASHINGTON — The White House formally asserted executive privilege over special counsel Robert Mueller’s report Wednesday, President Donald Trump’s first use of the executive authority in the latest confrontation with Congress.
Assistant Attorney General Stephen Boyd wrote in a letter to Congress that Trump had “asserted executive privilege over the entirety of the subpoenaed materials.” Boyd wrote that Judiciary Committee Chairman Jerrold Nadler’s push to hold Barr in contempt had “terminated” their negotiations over what materials lawmakers would be allowed to view from Mueller’s investigation.
“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,” Boyd wrote.
The White House assertion of privilege represents the latest collision between Trump and House Democrats, who have seen their investigations of the president blocked at every turn.
“This decision represents a clear escalation in the Trump administration’s blanket defiance of Congress’s constitutionally mandated duties,” Nadler said, later adding: “As a co-equal branch of government, we must have access to the materials that we need to fulfill our constitutional responsibilities in a manner consistent with past precedent.”
The White House move came shortly before the House Judiciary Committee planned to vote to hold Attorney General William Barr in contempt for failing to provide the full Mueller report.
Mueller released a redacted, 448-page report on April 18 that found no conspiracy between the Trump campaign and Russia, which interfered in the 2016 election. The report also identified 10 instances of possible obstruction of justice by Trump.
Amid a clamor from some Democrats to impeach Trump, House Democrats have pressed for the full, unredacted report and the underlying evidence. They moved to reprimand Barr for ignoring a congressional subpoena for the report.
“The president has stated that his Administration will oppose all subpoenas, and, in fact, virtually all document requests are going unsatisfied; witnesses are refusing to show up to hearings,” Nadler said at the start of the session. “This is unprecedented. If allowed to go unchecked, this obstruction means the end of congressional oversight.”
The 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. A person familiar with the matter said the Justice Department had asked for such an expansive invocation because of the speed with which House Democrats had pressed ahead with contempt proceedings. Department lawyers, the person familiar with the matter said, did not have time to review all of the underlying materials and determine if any could be released.
Trump asserted executive privilege to shield the entirety of the subpoenaed materials, a protective assertion of privilege to let the president make a final decision after reviewing the materials with his lawyer.
The White House move will not have a direct impact on possible testimony from Mueller, though it could limit what he can say indirectly, by putting particular subject areas off limits.
Nadler, in an interview on CNN on Wednesday, indicated that he was less confident that Mueller would testify to Congress despite negotiations between Democrats and representatives for the special counsel.
“I think the president will try to stop Robert Mueller. Whether he will succeed is another question,” Nadler said.
Trump, however, tweeted last weekend that he did not want Mueller to testify, worrying Democrats who hoped to get Mueller on television talking about why he explicitly refused to exonerate Trump on questions of obstruction.
The immediate effects of the White House move to claim executive privilege over the report were not entirely clear for Congress. House Democrats, for example, had plans to subpoena key witnesses mentioned in Mueller’s findings, as they had already done with White House counsel Donald McGahn. Some Democrats mused that such a claim — though they did not feel it was valid — could make it harder to receive documents and testimony from others who cooperated with Mueller.
The Justice Department previewed the news on Tuesday evening. In a late-night letter to Nadler, Boyd argued that the Justice Department had tried to accommodate Democrats’ demands for the release of the full Mueller report, which the Judiciary panel subpoenaed for its investigation into the president.
But Boyd said that Democrats — who made a counteroffer to the Justice Department in a last-ditch negotiation session to stave off a scheduled contempt vote for Barr on Wednesday morning — “has responded to our accommodation efforts by escalating its unreasonable demands.”
“Such unreasonable demands, together with the Committee’s precipitous threat to hold the Attorney General in contempt, are a transparent attempt to short-circuit the constitutionally mandated accommodation process and provoke an unnecessary conflict between our respective branches of government,” Boyd wrote.
He later added: “In the face of the Committee’s threatened contempt vote, the Attorney General will be compelled to request that the President invoke executive privilege with respect to the materials subject to the subpoena.”
Boyd’s letter followed an 11th-hour negotiation session between Justice and Judiciary on Tuesday, as both parties tried to calm tensions. The Justice Department, which has allowed only 12 senior lawmakers to have access to a fuller version of Mueller’s report, agreed to allow those lawmakers to take notes of what they read and bring in additional staff to assist.