The White House has been fighting or simply ignoring several efforts by House Democrats to investigate various issues related to President Donald Trump, with a new report saying that the administration is trying to keep White House aides from testifying regarding possible obstruction efforts by the president that were discussed in Special Counsel Robert Mueller‘s report. As it turns out, the law may be on Trump’s side, even regarding individuals like former White House counsel Don McGahn, who already spoke to Mueller’s team.
It all comes down to an issue that has been discussed a fair amount during Trump’s presidency: executive privilege. This is the idea that certain private communications can be protected if the president invokes the privilege. Now, one might think that the fact that McGahn has already talked to Mueller’s office, plus Trump’s own stated consent to the Mueller report’s public release would waive that privilege, but according to CNN legal analyst Ross Garber, neither of these things matter.
I expect WH will claim executive privilege to block McGahn testimony, and as to waiver
1. McGahn interviews w Mueller were not a waiver See OLC opinion https://t.co/d6V2FMJ6oe
2. OK’ing release of Mueller Report waived privilege only as to Report itself https://t.co/B28jZWu7gt
— Ross Garber (@rossgarber) April 23, 2019
Garber cited a Justice Department Office of Legal Counsel opinion that addressed this very issue in 2008. That opinion said that just because a White House employee discussed executive branch communications with a special counsel’s office, that doesn’t mean the information from those communications are beyond the protection of executive privilege. That opinion came from then-Attorney General Michael Mukasey, who advised President George W. Bush to assert executive privilege when a House committee subpoenaed FBI reports of interviews that Vice President Dick Cheney and other senior White House officials had with Special Counsel Patrick Fitzgerald.
Garber also said that while President Trump’s remarks about consenting to the Mueller report’s release may have waived privilege regarding the report, it did not waive it as to any other disclosure or discussion of his conversations with McGahn or other White House officials.
Now, the Washington Post reports, McGahn’s attorney is trying to help him navigate the difficult situation of being pulled by two branches of the federal government.
“He doesn’t want to be in contempt of Congress,” a source close to McGahn told the Post, “nor does he want to be in contempt of his ethical obligations and legal obligations as a former White House official.”
[Image via Saul Loeb-Pool/Getty Images]