The White House may try to block portions of Special Counsel Robert Mueller’s final report from being shared with Congress and the public in a fight that could end up before the Supreme Court.
Mueller may submit his findings on Russian interference in the 2016 presidential campaign to the Justice Department as early as February, according to one U.S. official. After that, things could get messy.
Democrats who now control the House have said they’ll demand that the department hand over the report — and that they intend to make it public. The White House may counter by asserting executive privilege to prevent key findings from being turned over, according to people familiar with internal deliberations.
Under the federal regulation that authorizes special counsels, Mueller is required only to submit his report to department leaders. There’s no mandate that any part of Mueller’s findings be provided to Congress or the public.
What happens next would be decided by Acting Attorney General Matthew Whitaker or by William Barr, Trump’s nominee for attorney general, if he’s confirmed by the Senate by then. In the past, both have criticized Mueller’s investigation into whether anyone around Trump colluded in the Russian meddling and whether the president sought to obstruct the probe.
Trump and his lawyers expect to get an advance look at the report if there’s a chance it will be shared beyond the Justice Department. They may assert executive privilege to withhold any information related to Trump’s time in the White House or during the transition, depending on what’s included.
“We will look at it and see if the president thinks there is a valid claim and if there is, do we want to make it,” said Trump’s lawyer Rudy Giuliani. “We reserve the right. We don’t know if we have to, but we haven’t waived it.”
Giuliani said the White House would be willing to fight in court to preserve material it considers privileged.
Executive privilege is the long-disputed doctrine used by a number of presidents who have argued that they must be able to keep internal deliberations private to protect their ability to get candid advice from aides.
It’s an option that Trump’s team has intentionally kept open, the people familiar with White House deliberations said. The White House voluntarily turned over tens of thousands of pages of records to Mueller’s investigators, avoiding a subpoena fight with the special prosecutor.
The lawyers believe that preserved the president’s option to assert later that the information can’t be shared outside of the executive branch. Had Mueller subpoenaed the documents and won, the White House would have lost the ability to block their public release.
The White House could base an assertion of executive privilege on a 2008 opinion by Attorney General Michael Mukasey, under which information was withheld from Congress concerning the investigation into the leaking of CIA officer Valerie Plame’s identity. The White House also might try to cite former President Barack Obama’s use of the privilege to prevent the release of documents related to the “Fast and Furious” gun-walking scandal, although a district judge rejected the argument.
Democratic Representative Jerrold Nadler of New York, the new chairman of the House Judiciary Committee, predicted any effort to suppress Mueller’s report “will not hold up in court.” He said a claim of “executive privilege can always be pierced by a specific and legitimate criminal or congressional inquiry.”
John Dean, who was White House counsel to President Richard Nixon — and became a witness against him in the Watergate scandal — said it would be an “absurd” legal strategy for the White House to claim executive privilege after having turned over material to Mueller.
Still, Dean said it could be a successful “stalling tactic” that could “tie it up in the lower courts for a couple of years.”
Mueller’s findings also could be embroiled in controversy over the protection of intelligence sources and methods and legal requirements to withhold grand jury and other sensitive law enforcement information.
U.S. intelligence agencies probably would seek to redact material in the report that relates to classified matters, another official said. Mueller and Justice Department lawyers also are required to withhold information that pertains to grand jury proceedings or ongoing sensitive law enforcement operations, the official said.
It’s possible that Mueller has anticipated that White House lawyers will try to suppress his findings and has moved — or will move in coming weeks — to outflank their efforts, this official said. Mueller could do so by having a grand jury make a presentment, which is a public report without a criminal charge, the official said. Mueller also could seek to indict Trump, although the Justice Department has a standing policy that a president can’t be indicted while in office.
Trump’s lawyers also have a backup plan in case Mueller’s report ultimately is made public and is damning for the president: They’ve been working for months on their own report to counter any findings that paint Trump in a negative light, as they echo Trump’s frequent assertions that there was “no collusion” and no laws were broken.
Trump lawyer Jane Raskin has led the effort to write the rebuttal.
Lawmakers, too, have options they could exercise. If Mueller’s findings aren’t made public, they could call him to testify before Congress, where he’d be pressed to disclose what he discovered.
“Trump can’t stop Mueller from going to Congress and talking about everything that’s in his report,” said Dean, the former Nixon counsel.
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