In Response to Contempt Threat, Barr Will Recommend Trump Assert Executive Privilege

U.S. Attorney General William Barr is prepared to recommend that President Donald Trump assert executive privilege if House Democrats continue down the path of contempt proceedings as planned on Wednesday. It seems Democrats have every intention of doing so.

Barr did not comply with a subpoena of the full Mueller report and underlying with evidence issued by the House Judiciary Committee. The Department of Justice says that it’s not going to be compelled by Congress to do something illegal (like releasing grand jury information) and they aren’t going to release underlying evidence that could affect a number of ongoing criminal cases, therefore Barr will recommend that Trump assert executive privilege — as former Barack Obama AG Eric Holder did when threatened with contempt. Holder recommend asserting executive privilege in 2012 and the ensuing struggle over Fast and Furious documents lasted for years.

While Democrats claim that privilege was waived long ago, White House counsel Emmet Flood recently penned a letter to say the opposite. Former White House counsel Don McGahn has also agreed to defy a subpoena from House Democrats. Why?

“The committee seeks to compel Mr. McGahn to produce White House documents the executive branch has directed that he not produce,” McGahn’s lawyer William Burck responded. “Where co-equal branches of government are making contradictory demands on Mr. McGahn concerning the same set of documents, the appropriate response for Mr. McGahn is to maintain the status quo unless and until the committee and the executive branch can reach an accommodation.”

That’s a long way of saying, we’re just going to sit this one out until Barr and the Democrats come to an understanding.

A letter from Assistant Attorney General Stephen Boyd late Tuesday said that Democrats are being “unreasonable” and warned that Barr will recommend executive privilege if he is held in contempt.

“If the committee decides to proceed in spite of this request, however, the Attorney General will advise the President to make a protective assertion of executive privilege,” the letter said, adding that “accommodations” were proposed by the DOJ and were rejected by Democrats.

One of the “further accommodations” was an offer to “expand the number of staff members who may review the minimally redacted report”; allow lawmakers who have reviewed that version of the report to “discuss the material freely among themselves”; to allow lawmakers to take and retain notes after reviewing the minimally redacted report.

The DOJ said that complying with the demands from Democrats “would force the Department to rise violating court orders and rules in multiple ongoing prosecutions, as well as risk the disclosure of information that could compromise ongoing investigations.” The DOJ called demands for access to grand jury information you;d “force the Department to ignore existing law.”

House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) offered an ominous response.

“The Department’s decision reflects President Trump’s blanket defiance of Congress’s constitutionally mandated duties. In the coming days, I expect that Congress will have no choice but to confront the behavior of this lawless Administration,” Nadler said. “The White House waived these privileges long ago, and the department seemed open to sharing these materials with us earlier today. The department’s legal arguments are without credibility, merit, or legal or factual basis.”

[Image via Win McNamee/Getty Images]

Matt Naham is managing editor of Law&Crime. He formerly worked as news editor and weekend editor at Rare.

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