House Judiciary Committee Chairman Rep. Jerrold Nadler (D-N.Y) has announced that Special Counsel Robert Mueller will not be testify as preliminary planned on May 15. The real news is that Nadler also threatened the subpoena Mueller.
“He will come at some point. If it’s necessary, we will subpoena him,” he said.
It remains to be seen if President Donald Trump will attempt to assert executive privilege, as he did in response to subpoenas of former White House counsel Don McGahn and the full Mueller report.
Trump may claim executive privilege precludes Mueller testimony if not narrowly tailored (see excerpt from AG Holder's memo to Pres. Obama re exec priv and law enforcement info). I expect Mueller would respect privilege invocation pending court review. Contempt for Mueller? pic.twitter.com/aQR6ZCXo4y
— Ross Garber (@rossgarber) May 10, 2019
CNN legal analyst and attorney Ross Garber said that Trump may try to claim executive privilege to prevent Mueller from testifying unless that testimony is “narrowly tailored.” Garber speculated that Mueller would respect an executive privilege claim pending a court review.
Then he asked the question, “Contempt for Mueller?”
We are, of course, getting ahead of ourselves a little here. First we need to see how Trump and/or Mueller chooses to respond. If Trump asserts executive privilege and Mueller goes along with that then the ball will be back in the court of House Democrats. They’ve held Attorney General William Barr in contempt for refusing to comply with a subpoena of the full Mueller report and underlying evidence. Could Mueller be next?
“So far the House is moving very, very cautiously on issuance and enforcement of subpoenas. It’s unclear if and when it will hold anyone in contempt,” Garber told Law&Crime. “I expect there will continue to be negotiations between the administration and the Judiciary Committee over possible Mueller testimony.”
It is notable that on the same day Barr was held in contempt the case against then-president Barack Obama‘s Attorney General Eric Holder was settled. Holder once recommended that Obama assert executive privilege when faced with a Fast and Furious probe. Holder was subsequently cited for contempt. That was in 2012.
Seeing as the case was only just settled, this provides some perspective on how long these kinds of fights can drag out.
It’s also a notable case because the privilege claim Trump may make could mirror the excerpt Garber shared above, on Assertion of Executive Privilege in Response to Congressional Demands for Law Enforcement Files.
Holder argued that “information about ongoing criminal prosecutions” are protected by privilege. That would certainly mean, in this context, that Mueller is not permitted to discuss redacted information that Democrats have attempted to get from Barr. The issue is how much a privilege claim would extend to anything Mueller might say about the rest of the now-public report. Some have argued that Trump doesn’t have a claim on that.
Democrats may also be interested in asking Mueller about his private interactions with Barr, plus the letter he sent Barr airing concerns about the rollout of the Mueller report.
[Image via Alex Wong/Getty Images]