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- Attorney General William Barr said this week that he will send the special counsel Robert Mueller’s report on the Russia investigation to the White House before the public sees it so they can redact privileged information.
- The development marks yet another unprecedented development in the Trump-Russia saga, in which the central figure in an investigation will have the chance to review a report of that investigation before the public.
- Typically, when the government obtains information that can be protected under privilege claims, it sets up a separate filter team to separate out that information before prosecutors see it. Justice Department veterans said they were surprised Barr chose to forego that option and send the report directly to the White House.
- Over a dozen current and former White House officials have given testimony and turned over documents to Mueller, and legal scholars say President Donald Trump’s team could theoretically assert executive privilege over all that information.
- The dilemma could put Barr in a difficult position, one former federal prosecutor pointed out: "Say Barr sends this report to the White House and tells them to pull out anything they think is privileged. What if the White House sent back one-third of the report and redacted the rest? What does Barr do with that? Does he just accept it and only release the parts that weren’t redacted, or if he feels like the White House is wrong or abusing their power, does he challenge them?"
Attorney General William Barr raised some eyebrows this week when he said the Justice Department will send a copy of the special counsel Robert Mueller’s report on the FBI’s Russia investigation to the White House before it becomes available to the public.
Barr’s revelation surprised Justice Department veterans and legal experts, and it marked yet another unprecedented development in the Trump-Russia saga.
"There’s nothing routine about this," said Patrick Cotter, a former federal prosecutor who worked at the Justice Department when Barr was acting attorney general in the 1990s. "There’s nowhere to look for a precedent to what Barr’s planning on doing here, because there’s never been a report issued under the special counsel statute Mueller’s operating under."
Barr told South Carolina Sen. Lindsey Graham he was sending the Mueller report to the White House to give them the chance to redact information they believe could be protected under privilege before the report makes it into the public eye.
‘I’m not sure why Barr felt this was the appropriate way to go’
Sait Serkan Gurbuz/AP
"I’m not sure why Barr felt this was the appropriate way to go about handling potentially privileged information," Cotter said.
Typically, when the government obtains information from an investigative target that could be subject to privilege claims, it sets up a "taint team," or a filter team that operates separately from prosecutors, whose job is to comb through the seized materials and take out any documents, communications, or testimony that could be privileged.
In this case, Cotter said, Barr could have set up a separate taint team at the Justice Department to review Mueller’s report and make a list of any information that could be privileged. The taint team could then present that list to the White House and ask it to go through and redact any information it did not want released to lawmakers and the public.
There are three main categories of information that could be subject to privilege as it relates to the president.
The first is communications between the president and his staff, or others in the government, that are directly related to him carrying out diplomatic duties or the duties of his office. This type of information is covered under executive privilege.
The second consists of communications the president claims are between him and someone from whom — in that communication — he was seeking or receiving legal advice. These interactions are covered under attorney-client privilege and can also be redacted if they are contained in Mueller’s report.
The third category includes information pertaining to US national security. This encompasses a broad range of matters (military operations, diplomatic concerns, intelligence findings, agency deliberations, and more), and US courts have a history of deferring to the executive branch when it wants to redact information on national security grounds.
Barr has also said he will go through the report and redact any information that pertains to matters that are currently pending before a grand jury, as well as information that went before a grand jury but did not result in criminal charges.
Graham told CNN on Wednesday that Trump does not plan to invoke executive privilege on the Mueller report. Graham added that Trump told him to "just release it."
White House ‘could be very narrow or very broad in how it understands executive privilege’
It’s unclear what information in the special counsel’s report could be protected under privilege, because Barr has given Congress and the public a very narrow window into Mueller’s findings.
The attorney general released a four-page summary on Sunday of Mueller’s report, in which he said Mueller did not find sufficient evidence to charge Trump or anyone on the campaign with conspiring with the Russian government. He also said prosecutors did not come to a conclusion one way or another on whether Trump obstructed justice, and that while they would not charge him with a crime, their findings did not "exonerate" him.
Barr and Deputy Attorney General Rod Rosenstein, however, ultimately determined that Trump did not commit an obstruction crime.
Jens David Ohlin, a vice dean at Cornell Law School, told INSIDER that the most relevant information that could be subject to privilege claims would involve testimony provided by Trump administration officials, including the former White House counsel, Don McGahn.
McGahn was a central figure in Mueller’s obstruction probe, given his knowledge of several key moments that made up the crux of the inquiry, including Trump’s decision to fire then FBI director James Comey; Trump’s repeated efforts to force then-Attorney General Jeff Sessions to reverse his recusal from the Russia probe; Trump’s reported attempts to fire Mueller; Trump’s knowledge of former national security adviser Michael Flynn’s actions before his forced resignation; and Trump’s decision to draft a letter laying out his reasons for firing Comey the weekend before he was fired.
McGahn voluntarily sat down for over 30 hours of questioning with Mueller’s team last year because he and his lawyer reportedly wanted to be as cooperative as possible with the sprawling investigation.
Several other current and former administration officials are known to have spoken with Mueller, including but not limited to:
- White House press secretary Sarah Huckabee Sanders
- Former deputy FBI director Andrew McCabe
- Senior adviser Jared Kushner
- Former White House chief strategist Steve Bannon
- Former communications director Hope Hicks
- Former acting attorney general Sally Yates
- Director of National Intelligence Dan Coats
- NSA director Mike Rogers
- Secretary of State Mike Pompeo
- White House adviser Stephen Miller
- Former chief of staff Reince Priebus
- Former White House press secretary Sean Spicer
Ohlin told INSIDER the White House "could be very narrow or very broad in how it understands executive privilege, so it is unclear whether they will be asking for minor, or major, redactions to the report." But theoretically, the White House could assert executive privilege over the testimony of all the officials noted above if they spoke to prosecutors about their conversations with the president and if that information is included in the final report.
Barr could be putting himself in a difficult position
This could also put Barr in a difficult position.
"Say Barr sends this report to the White House and tells them to pull out anything they think is privileged," Cotter said. "What if the White House sent back one-third of the report and redacted the rest? What does Barr do with that? Does he just accept it and only release the parts that weren’t redacted, or if he feels like the White House is wrong or abusing their power, does he challenge them?"
Legal experts say privileges, under US law, are meant to be a shield and not a sword.
"You shouldn’t be able to use it in a way that gives you an unfair advantage," Cotter said.
Barbara McQuade, a former federal prosecutor from the Eastern District of Michigan, echoed that view, telling INSIDER that executive privilege "is not absolute and must yield when a contrary interest outweighs it."
In United States v. Nixon, for instance, the Supreme Court held that executive privilege had to yield to a grand jury subpoena for tape recordings when the information in question was essential to a criminal investigation and could not be obtained from another source.
Some legal scholars argue that Trump automatically waived executive privilege when the White House made administration officials available for interviews with the special counsel and turned over documents pertaining to the Russia probe. Others say disclosing information to Mueller does not constitute a waiver because he is part of the executive branch.
But the White House has not yet seen the full report, and Trump’s lawyers have long maintained that they will not waive privilege until they’re given the chance to review Mueller’s report in its entirety. Trump’s lead defense lawyer, Rudy Giuliani, has also said they want a chance to "correct" information they believe to be inaccurate in the report, and to release a rebuttal report at the same time.
If the White House asserts privilege claims over a broad array of information contained in the report, it’s unclear if Barr would push back. But the Democratic-led House of Representatives has already begun to obtain a near complete copy of the Mueller report by next week. In the event that Congress doesn’t get the full report, congressional aides told INSIDER lawmakers are ready to take the dispute to court, including going all the way up to the Supreme Court.
- Prosecutors left a trail of breadcrumbs about Trump’s finances, and House Democrats are now digging deeper
- An overwhelming 84% of Americans — including 75% of Republicans — want Mueller’s report to be made public, according to a new poll
- The White House will get the Mueller report before the public does in case it wants to make redactions, Barr says