- The Washington Times - Thursday, January 25, 2018

The White House’s increasingly aggressive threat to invoke executive privilege to keep current and former aides from answering questions in the competing Russian election meddling probes could work in the short term but set up President Trump for some bigger headaches down the road.

While a constitutional battle over what advice and conversations a president can effectively wall off may delay congressional probes and special counsel Robert Mueller’s investigation in the short term, legal analysts warn that the strategy risks dragging the toxic politics of the controversy into the heart of the midterm elections, which are just 10 months away.

With Mr. Mueller’s investigation, particularly, inching ever closer to a confrontation with Mr. Trump, legal scholars are divided over how Mr. Mueller may try to counter a potential White House claim of executive privilege and how quickly the courts can mediate any disputes.

“Executive privilege is an amorphous concept,” said William Banks, a professor at the Syracuse University College of Law and a former special counsel to the Senate Judiciary Committee. “It has never been tested the way it could soon be tested.”

The two sides will clash if Mr. Mueller moves to subpoena testimony from the president or if Mr. Trump voluntarily agrees to an interview — a development that could happen as early as next month.

Executive privilege protects the confidentiality of presidential decision-making by allowing the president, and at times his staff, to keep certain information from the courts, Congress and the public. The concept is not mentioned in the Constitution, but since the presidency of George Washington the concept has emerged from the founders’ doctrine of a separation of powers giving the executive, legislative and judicial branches their separate spheres.

Uttam Dhillon, the White House’s lead attorney on the congressional Russia investigations, instructed attorneys for former White House chief strategist Steve Bannon to decline to answer questions related to his time in the presidential transition and the White House posed by the House Permanent Select Committee on Intelligence. He said the White House might assert down the road that such information was privileged.

White House attorneys reportedly were in touch by phone throughout the day with Mr. Bannon’s legal team during testimony this month weighing in on what Mr. Bannon should decline to discuss.

White House spokeswoman Sarah Huckabee Sanders said the president and his attorneys were determined to protect the rights that all presidents needed if they were to carry out the job.

“This White House is following the same practice that many before us have, that have gone back decades,” Mrs. Sanders told reporters after Mr. Bannon’s testimony. “We encourage the committees to work with us to find the appropriate accommodation in order to ensure Congress obtains all the information that they’re looking for.”

Last summer, during testimony before the Senate Select Committee on Intelligence, Attorney General Jeff Sessions, National Security Agency Director Mike Rogers and Director of National Intelligence Dan Coats also cited the practice when refusing to answer certain questions about their conversations with the president.

Democrats have predictably blasted the invocation of executive privilege, arguing that it amounts to an improper effort to block Congress’ legitimate oversight duties.

“If the White House is permitted to maintain that kind of a gag rule on the witness, no congressional investigation would ever be effective,” Rep. Adam B. Schiff of California, the top Democrat on the House intelligence committee, told reporters after Mr. Bannon’s 10 hours of testimony this month.

Mr. Trump has yet to formally invoke executive privilege to block Mr. Mueller’s or Capitol Hill’s investigations, although several of his aides have clammed up, saying he might do so.

Mr. Sessions told lawmakers last year that he was declining to answer certain questions in case the president — who is legally the only one who can assert the right — chose to consider certain conversations they had privileged and not for public release.

“Once the Trump camp clearly asserts executive privilege, Mr. Mueller will absolutely change his tactics,” former federal prosecutor Caleb Mason told The Washington Times.

There is also an inherent tension between the assertion of executive privilege and the power of a special prosecutor to investigate illegal activity.

Courts have said there has to be a balance between a president’s need for candid, confidential advice and the need to obtain evidence in grand jury proceedings or criminal trials.

The prosecutor vs. the president

The real clash could come if a White House assertion of executive privilege is met by a move on Capitol Hill to cite Mr. Trump or his aides for contempt of Congress.

Neither the House nor the Senate committees where the White House tested executive privilege as a defense has taken that step. But Mr. Mueller’s office, which has greater prosecutorial powers than the congressional committees, could challenge the privilege claim more aggressively.

Mr. Mason, who has written widely on the concept, said that since the Mueller team began working roughly seven months ago, lawyers have noted their “sophisticated, unusual and aggressive tactics.”

The special prosecutor’s office, for example, threatened to compel the attorney for Mr. Trump’s former campaign chairman, Paul Manafort, to testify before the grand jury. The tactic was revealed in Mr. Manafort’s 12-count criminal indictment and supported with an opinion from Chief Judge Beryl A. Howell.

Mr. Mason explained that targeting attorney-client privilege — a cherished legal concept — was a warning shot to the Trump legal team of what Mr. Mueller was prepared to do to carry out his investigation.

A battle between Mr. Trump’s right to executive privilege and the special counsel’s efforts to learn what was being protected would enter a “constitutional gray area,” given that Mr. Mueller could argue that because of the nature of the investigation and the charge that a foreign power tried to corrupt a presidential election meant that national security was at risk. The challenge could quickly land right in the U.S. District Court for the District of Columbia.

For Mr. Trump and his advisers, the legal problem is compounded by the political one. The longer the Mueller and congressional investigations drag on, the more they overshadow the midterm elections — a campaign Republicans had been hoping would be focused on the strong economy and the package of tax cuts enacted last year.

Another drawn-out legal battle could center on the legitimacy of the special counsel’s office and whether Mr. Mueller’s investigators had stayed within their mandate.

Law professor Steven G. Calabresi, a co-founder of the conservative Federalist Society, said in an interview that he “strongly opposed the special prosecutor law both” as it has recently been used against Presidents Reagan and George H.W. Bush in the Iran-Contra affair, in addition to how it was used by Kenneth W. Starr against President Clinton.

“I think assigning a special prosecutor to go after one named person with a staff that has signed up to ‘get’ that person is, in effect, a bill of attainder, which the Constitution forbids,” Mr. Calabresi said.

• Dan Boylan can be reached at dboylan@washingtontimes.com.

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