The Mueller Investigation and Waiving Presidential Communications Privilege

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INSIGHT: The Mueller Investigation and Waiving Presidential Communications Privilege

BY EMILY M. LOEB AND ZACHARY BLAU and seeks an injunction ordering McGahn to testify to those matters as well. Two days before former Special Counsel Robert Mu- eller testified before two House committees, he was Why the Committee Has The Better Argument Three warned by the Justice Department that ‘‘any testimony key cases from the U.S. Supreme Court and D.C. Cir- must remain within the boundaries of your public re- cuit indicate that, if the court reaches the privilege port because matters within the scope of your investiga- question, the committee has the better argument: the tion were covered by executive privilege.’’ presidential communications privilege was likely Although it remained in the background during last waived as to any documents or testimony provided to month’s hearings, the months-long dispute between the the Special Counsel. House and the DOJ over executive privilege has moved The DOJ letter to Mueller claimed that several sub- into a new phase with the filing of a lawsuit to force for- sets of executive privilege may apply to materials pro- mer White House Counsel Don McGahn to testify be- vided to Mueller, namely ‘‘law enforcement, delibera- fore the House Judiciary Committee. tive process, attorney work product, and presidential The House Judiciary Committee issued its subpoena communications privileges.’’ to McGahn shortly after the Mueller report was made Our analysis focuses on the latter, because, as the public, and seeks documents and testimony provided to D.C. Circuit has explained, ‘‘congressional or judicial the Special Counsel’s Office. The White House has negation of the presidential communications privilege claimed that McGahn, as a former White House official, is subject to greater scrutiny than denial of’’ executive is absolutely immune from testifying before Congress. privilege rooted in common law rather than the Consti- If the courts reject the administration’s immunity tution. See In re Sealed Case (Espy). claim, just as Judge John Bates did in 2008 with regard Thus, if the presidential communications privilege to President George W. Bush’s White House Counsel has been waived, it follows that so too have the lesser Harriet Miers, see Committee on Judiciary, U.S. House varieties of executive privilege. of Representatives v. Miers, the legal dispute would Before jumping into the waiver analysis, what exactly then turn on the President’s assertion of privilege is the presidential communications privilege? (President Trump has not yet formally invoked execu- According to the Supreme Court in United States v. tive privilege). Nixon, the ‘‘privilege of confidentiality of Presidential Media coverage of the lawsuit has so far focused on communications in the exercise of Art. II powers . . . the immunity claim, with little or no discussion of the derive[s] from the supremacy of each branch within its strength of the privilege claim. The DOJ is not claiming own assigned area of constitutional duties.’’ privilege over material within the unredacted portion of By protecting the president’s ‘‘conversations and cor- the Mueller report. respondence,’’ it protects ‘‘the public interest in candid, The critical question is now whether executive privi- objective, and even blunt or harsh opinions in Presiden- lege claims were waived over all information provided tial decisionmaking.’’ After all, the president ‘‘and those to the Special Counsel, even if that information was not who assist him must be free to explore alternatives in included in the report. The committee argues that it was the process of shaping policies and making decisions.’’

Interpreting Nixon 23 years later in Sealed Case, the privilege should not extend to staff outside the White D.C. Circuit explained that the presidential communica- House in executive branch agencies.’’ tions privilege is much broader than the deliberative Moreover, the privilege ‘‘should never serve as a process privilege in that it applies ‘‘to documents in means of shielding information regarding governmen- their entirety, and covers final and post-decisional ma- tal operations that do not call ultimately for direct deci- terials as well as pre-deliberative ones.’’ sionmaking by the President.’’ Under this reasoning, However, like any other privilege, the presidential disclosures to the Special Counsel would waive the communications privilege can be waived by the holder, privilege because the Special Counsel is neither in the whether explicitly and deliberately or not. As we will White House nor a part of ‘‘advising the President on see, the confidentiality requirement is critical. official government matters.’’ In 1997, the D.C. Circuit decided a dispute between Indeed, more recently, in Judicial Watch v. Depart- the Clinton White House and the Office of Independent ment of Justice, the D.C. Circuit rejected the DOJ’s ar- Counsel over the presidential communications privi- gument for extending ‘‘the presidential communica- lege. tions privilege to communications of persons in the Jus- Allegations had been made that the Secretary of Ag- tice Department who are at least twice removed from riculture, Mike Espy, had unlawfully accepted gifts; this the President, among and between the Offices of the prompted the appointment of an independent counsel, Pardon Attorney and the Deputy Attorney General, as an investigation by the White House Counsel’s Office, well as other agencies.’’ and Secretary Espy’s resignation. Importantly, like the information McGahn provided The White House Counsel’s Office produced a report to the Special Counsel, those communications ‘‘were which was made public, and the Independent Counsel never received by immediate White House advisers in then issued a grand jury subpoena for all documents the Office of the President.’’ ‘‘that were ‘accumulated for, relating in any way to, or Given these precedents, any assertion of the presi- considered in any fashion, by those persons who were dential communications privilege over materials or tes- consulted and/or contributed directly or indirectly to all timony provided by the White House to the Special drafts and/or versions’ of the’’ report. Counsel likely fails, even for material that was left out Although the White House complied with the sub- of the four corners of Mueller’s report. poena, it withheld 84 documents as privileged. The In- The Special Counsel was an ‘‘inferior officer’’ within dependent Counsel challenged that designation, argu- the DOJ, see In re Grand Jury Investigation (Miller), not ing that release of the report, among other White House a presidential advisor within the White House. His statements, had waived the privilege. tasks, as enumerated in the Acting Attorney General’s The D.C. Circuit held that, in contrast to the ‘‘all-or- order appointing him, did not include assisting the nothing approach’’ to attorney-client privilege, the ‘‘lim- president ‘‘in the process of shaping policies and mak- ited approach’’ to the presidential communications ing decisions.’’ See U.S. v. Nixon. privilege meant that the public release of the White House Counsel’s Office report did not constitute waiver Thus, D.C. Circuit case law regarding the scope of the as to the underlying documents. presidential communications privilege indicates that But, it found that ‘‘the White House ha[d] waived its confidential presidential communications to or from claims of privilege in regard to the specific documents White House officials that were provided to the Special that it voluntarily revealed to third parties outside the Counsel are arguably no longer confidential—waiving White House,’’ including Secretary Espy’s counsel. In any previously protectable privilege. other words, presidential privilege was waived when This column does not necessarily reflect the opinion the document were no longer kept confidential. of The Bureau of National Affairs, Inc. or its owners. The DOJ will likely argue that the presidential communications privilege applies to materials shared with the Special Counsel that did not make it into the now- Author Information public Mueller report. After all, the argument would go, executive privilege was maintained because Mueller, as Emily M. Loeb is a partner at Jenner & Block and a Special Counsel, was within the DOJ. former associate counsel in the Office of the White House Counsel. She has broad experience representing D.C. Circuit Has Not Been Persuaded . . . Twice The companies and institutions facing multifaceted govern- D.C. Circuit has weighed similar assertions twice, and ment investigations and provides strategic advice for both times it was not persuaded. In Sealed Case, the clients through each stage of an investigation and adja- court held that the privilege extends to ‘‘presidential ad- cent litigation. She also counsels entities and individu- visers in the course of preparing advice for the Presi- als involved in hearings and investigations before the dent . . . even when these communications are not made U.S. Congress, including preparing witnesses, defend- directly to the President,’’ and even to ‘‘communica- ing depositions and interviews, and managing the re- tions authored or received in response to a solicitation sponse to information requests. by members of a presidential adviser’s staff.’’ Zachary Blau is an associate in Jenner & Block’s Liti- However, the court was careful to note that not every- gation Department and a former Judiciary Committee one who ‘‘plays a role’’ can ‘‘qualify’’: ‘‘In particular, the counsel to Sen. Patrick Leahy (D-Vt.).