The doctrine of executive privilege, which allows a president to keep secret various internal communications with his aides, dates back centuries

By Adam Carlson
May 08, 2019 02:17 PM
Olivier Douliery - Pool/Getty

On Wednesday, President Donald Trump claimed executive privilege to block Congressional Democrats from obtaining the un-redacted version of Robert Mueller’s Russia report as well as its underlying evidence.

This marks the first time Trump has asserted the privilege since he has been in office, according to the New York Times.

Democrats blasted the move, with Rep. Jerrold Nadler, chairman of the House Judiciary Committee, describing it as “a clear escalation in the Trump Administration’s blanket defiance of Congress’s constitutionally mandated duties.”

In a statement, White House Press Secretary Sarah Sanders described the Judiciary Committee’s subpoena for the Mueller materials as “unlawful and reckless.” She argued Democratic probes into the Trump administration amounted to a “redo” of the special counsel’s investigation after Mueller said he did not find Trump coordinated or conspired with the Russians in their election interference.

“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,” Sanders said in a statement.

Nadler spoke out in equally stark terms. “This is unprecedented. If allowed to go unchecked, this obstruction means the end of congressional oversight. As a co-equal branch of government, we should not and cannot allow this to continue,” he said in a statement Wednesday.

But what is executive privilege, exactly? What does it do, when is it applied and can it be challenged?

Here’s a breakdown.

The History of Executive Privilege

According to Reuters, the concept of executive privilege dates back centuries though it was not labeled as such until the ’50s. The Supreme Court detailed the doctrine further in a 1974 case involving Richard Nixon’s efforts to hide tapes of his interactions in the Oval Office.

The privilege is not enshrined in law or in the Constitution and its parameters fall into a “gray area,” as one expert put it to the Times in 2017.

Reuters cites President Thomas Jefferson declining to provide evidence against Aaron Burr, his former vice president, though a judge ultimately ordered otherwise.

What Does It Do?

Essentially, executive privilege is meant to allow the president to keep secret certain communications and documents between him and his advisers and inside his administration.

As Reuters explained: “The idea is that the White House operates more effectively if the president and his aides can have private, candid conversations, without worrying about public scrutiny.”

This need for privacy has been weighed against Congress’ ability to probe and oversee the executive branch.

In particular, any impeachment proceeding is widely believed to shred executive privilege. One law professor told Reuters that in that case, “Virtually no part of a president’s duties or behavior is exempt from scrutiny.”

Robert Mueller (left) and President Donald Trump
Alex Wong/Getty; Mustafa Yalcin/Anadolu Agency/Getty

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When Is Privilege Asserted?

Trump is far from the first president to try and shield himself in this way.

Predecessors including George W. Bush, Barack Obama and others have all invoked their executive privilege to hide certain conversations and documents from Congressional view.

In 2001, after President Bush asserted the privilege for the first time, the Times called it “one of the most ambiguous concepts in constitutional law. The Supreme Court has recognized that a president must be able to speak freely with advisers without fear that those conversations will be disclosed. Legal scholars have called it a qualified privilege.”

As with other claims of privilege — such as those between an attorney and their client — executive privilege can be waived if the secret communications are disclosed to a third party. Democrats have noted this in pointing to the Trump administrations cooperation with Mueller’s team, including allowing the White House counsel to be interviewed multiple times.

Can Privilege Be Disputed?

Yes, through the courts, though so far the matter has been left hazy.

“In practice, executive privilege disputes between the White House and Congress have often been resolved through deals to accommodate investigators’ needs without reaching definitive judicial rulings,” the Times reported in 2017.

House Democrats, including Rep. Nadler, will proceed with a vote on whether to hold Attorney General William Barr in contempt over the government’s refusal to fulfill their subpoena.

The Associated Press, in an article published last month, noted the Trump administration’s resistance to Congress “could lead to a messy, protracted legal fight.”

As one law professor told the AP: “This is all about delaying things. The strategy of every administration is to drag it out.”