Trump's executive privilege claims over the Mueller report are as preposterous as Nixon's during Watergate

The president's lawyers seem to believe that taking the same actions as Nixon will have different results.
Image: President Donald Trump walks to Marine One from the White House on May 8, 2019.
President Donald Trump has invoked executive privilege in trying to withhold the testimony of every witness cited in the Mueller report. Saul Loeb / AFP - Getty Images
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By Michael Conway, Former counsel, U.S. House Judiciary Committee

President Donald Trump borrowed from President Richard Nixon’s failed Watergate playbook on Wednesday by invoking a sweeping claim of executive privilege, seeking to withhold from Congress the unredacted report of special counsel Robert Mueller and its underlying evidence.

Trump’s legally flimsy privilege claim was asserted as a justification for Barr’s noncompliance with the House Judiciary Committee’s subpoena for the report and evidence. But history suggests that it won’t work.

First, if challenged in court, Trump’s belated invocation of executive privilege after several of his key aides had already testified in Mueller’s probe is doomed to failure because aspects of their testimony are already public in the redacted Mueller report.

And executive privilege, according to the Supreme Court, is designed to protect candid, private conversations between the president and his advisers; prior to taking office, Trump was not the president, and the Mueller report covers a significant period of time before his inauguration.

Furthermore, Trump’s privilege claim seeks to withhold the testimony of every witness cited in Mueller’s report. But the footnotes in Mueller’s redacted report identify multiple witnesses who never worked in the administration, including: Henry Oknyansky, a Florida-based Russian who claimed to have derogatory information on Hillary Clinton; Andrei Rozov, chairman of a Russian real-estate connected to the proposed Trump Tower Moscow project; Dimitri Simes, the president of Center for the National Interest (a U.S. think tank with Russian ties); Richard Burt, a board member of CPI; Petr Aven, chairman of Russia’s largest commercial bank, Alfa-Bank; former Trump Organization lawyer Michael Cohen; and former campaign adviser George Papadopoulos.

Is Trump really asking Congress to believe that he had confidential official communications with all these witnesses — including the Russian financiers and two people convicted of criminal offenses whom he has disavowed — during his presidency? Of course not. But that alone reveals the frailty of his executive privilege invocation.

In light of that, the Judiciary Committee voted (along party lines) on Wednesday to recommend that the full House hold Barr in contempt for noncompliance with the subpoena.

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Trump’s team this week also touted a sweeping, de facto executive privilege claim to prevent former White House counsel Donald McGahn from producing documents subpoenaed by the House Judiciary Committee. McGahn was a central witness in Mueller’s investigation outlined in the second section of the report, addressing accusations that Trump directed McGahn to fire Mueller — something McGahn says he refused to do.

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Trump’s current White House counsel Pat Cipollone, in a letter Tuesday, ordered McGahn not to comply with a Judiciary Committee subpoena for documents. For justification, Cipollone’s letter alluded to the doctrine of executive privilege without formally invoking it.

Trump’s efforts parallels Nixon’s ultimately unsuccessful effort to prevent his White House lawyer, John Dean, from being questioned by congressional investigators as well as his efforts to avoid releasing tapes of his conversations that were subpoenaed by the special prosecutor.

Those bogus claims of executive privilege were ultimately Nixon’s undoing — and Trump’s may not end up any better for him.

Like Nixon, Trump is trying to use an omnibus claim of executive privilege as leverage to constrain the scope of congressional questioning. In a March 11, 1973, Oval Office meeting — a year before the impeachment investigation began — Nixon predicted that the Senate would question his claim of executive privilege if Dean were required to testify. If that occurred, Nixon said “we’ll let it go to the [Supreme] Court. Fight it like hell.”

However, his White House advisers worried that public opinion would turn against Nixon if he appeared to stonewall congressional subpoenas. On March 22, 1973, H.R. Haldeman, Nixon’s chief of staff, referring to the anchor of the "NBC Nightly News" at the time, warned Nixon about “the guy sitting at home listening to John Chancellor say ‘the president is covering this up’” by invoking the “widest exercise of executive privilege in American history and all that. He says, ‘What the hell’s he covering up?'”

Nixon took note and modified his strategy to assert only a limited waiver of executive privilege as part of a bargaining ploy with Senate investigators. According to the House Judiciary Committee’s final report “the president discussed ways to use executive privilege to negotiate with the committee for a compromise on conditions governing staff appearances and the bounds of the committee’s investigation.”

It didn’t work: In televised hearings, Senate committee questioning disclosed the existence of the White House taping system and Dean’s detailed accusations about the Watergate cover-up.

And then Nixon’s executive privilege claim was unanimously rejected in July 1974 by the Supreme Court, which ordered him to produce White House tapes subpoenaed by the special prosecutor.

Nixon’s lawyers first told the court that communications between the president and his advisers were absolutely privileged and courts were powerless to order their disclosure. The Supreme Court was unimpressed, holding, “We therefore reaffirm that it is the province and duty of this Court ‘to say what the law is,’” citing the seminal 1803 opinion in Marbury v. Madison.

After confirming its authority to rule on Nixon’s executive privilege claim, the Supreme Court found that executive privilege did not supersede Nixon’s duty to comply with the subpoena issued by Special Prosecutor Leon Jaworski. Following the 8-0 ruling, Nixon had to produce the “smoking gun” tape recording that he had tried to conceal under the cloak of executive privilege.

The House Judiciary Committee’s final report also faulted Nixon’s claim of executive privilege, concluding that they were “without merit.”

In that report, the committee declared: “If a generalized presidential interest in confidentiality cannot prevail” to defeat a trial subpoena in a criminal case, “neither can it be permitted to prevail over” the needs of Congress for all relevant facts in the impeachment process.

More damaging was the committee’s assessment that Nixon’s 1973 invocation of executive privilege to limit the scope of his former aides’ testimony evidenced his personal involvement in the Watergate cover-up.

“President Nixon’s efforts to cover up the facts of Watergate included an effort to narrow and divert the [Senate committee’s] investigation," the report stated. “He attempted to extend executive privilege to former aides and attempted to invoke the doctrine to prevent their testimony.”

Trump’s lawyers seem to believe that taking the same actions as Nixon will have different results for their client. The courts and the House, though, may have other ideas.