WASHINGTON — President Donald Trump has invoked executive privilege over special counsel Robert Mueller’s unredacted report and the underlying evidence just before the House Judiciary Committee is set to vote on holding Attorney General William Barr in contempt of Congress for refusing to comply with the committee’s subpoena for the materials.
The Justice Department informed House Judiciary Chairman Jerry Nadler Wednesday morning in a letter that the “President has asserted executive privilege over the entirety of the subpoenaed materials.”
While this is only a “protective assertion” of executive privilege, according to the letter, it is a dramatic escalation in the ongoing battle between the Department of Justice and Democrats on Capitol Hill after negotiations over the report went nowhere for weeks.
Barr sent a letter dated Wednesday to the President, requesting he make a protective assertion of executive privilege with respect to the documents the House committee subpoenaed.
Assertions of executive privilege are often used to shield materials held within the executive branch from production to another branch of government or the general public. The Mueller report was already made public by the Justice Department last month, but the underlying investigative files were not.
In his letter to the President, Barr explained that “although the subpoenaed materials assuredly include categories of information within the scope of executive privilege,” they may not all be protected by the privilege, and that ultimate determination will likely be for a federal judge to decide.
In the meantime, the real question will be whether the House can successfully proceed with calling witnesses involved in the investigation.
“Faced with Chairman Nadler’s blatant abuse of power, and at the Attorney General’s request, the President has no other option than to make a protective assertion of executive privilege,” White House press secretary Sarah Sanders said in a statement.
Nadler set Wednesday’s Judiciary Committee vote to hold Barr in contempt after the attorney general did not agree to comply with a subpoena for the documents by Monday’s 9 a.m. ET deadline.
During Wednesday’s meeting, Nadler said the Justice Department was heading in the wrong direction with its “dramatic step” in asking Trump to invoke protective assertion of executive privilege.
“Besides misapplying the doctrine of executive privilege—since the White House waived these privileges long ago, and the Department seemed open to sharing these materials with us just yesterday—this decision represents a clear escalation in the Trump Administration’s blanket defiance of Congress’s constitutionally mandated duties,” Nadler said in his opening statement.
Last month, the Justice Department released a redacted version of the Mueller report to the public, and a version with fewer redactions to a limited number of members of Congress.
Barr redacted four types of information from the Mueller report: grand jury material, classified information, material tied to ongoing investigations, and information that could harm “peripheral third parties.”
The Justice Department offered on Tuesday to allow more staffers to view the less-redacted version that was made available to select congressional leaders, but Democrats rejected the department’s offer.
Instead, they requested that the Justice Department commit to working with the committee to go to court to obtain grand jury material — or at least not oppose the committee’s effort to do so, according to a committee spokesman.
Democrats have said they are entitled to view grand jury material, but Barr has maintained he’s not legally allowed to provide that material to Congress. They also requested a meeting this week to discuss providing the committee access to Mueller’s evidence and that the full membership of the judiciary and intelligence committees should be able to view the less-redacted report.
Democrats have said they need Mueller’s evidence, specifically citing in a letter last week the FBI’s witness interviews and contemporaneous notes that witnesses provided to the special counsel’s team, which is cited throughout the report.
Trump’s assertion of protective executive privilege over subpoenaed documents has no direct bearing on Mueller testifying before the House, according to a Justice Department official.
From a practical standpoint, however, whether a legal battle over the underlying documents affects Mueller’s testimony remains to be seen.
The official further disagreed with Nadler’s assertion that the President waived executive privilege by providing materials to Mueller in the first place, saying there is past precedent for providing materials to law enforcement.