White House lawyers expect to have an opportunity to review whatever version of Robert Mueller’s report Attorney General Bill Barr submits to Congress before it reaches lawmakers and the public, multiple sources familiar with the matter said, setting up a potential political battle over the hotly anticipated document.
The attorneys want the White House to have an opportunity to claim executive privilege over information drawn from documents and interviews with White House officials, the sources said.
The White House’s review of executive privilege claims are within its legal purview, but could set up a political battle over the perception President Donald Trump is trying to shield certain information from the public about an investigation that has swirled around him since the first day of his presidency.
Justice Department lawyers could advise him against certain assertions if they don’t feel it’s legally defensible. If Trump does assert executive privilege, the decision could be litigated in court if it’s challenged, which Democrats would almost certainly do.
“There’s always tension between what looks best politically and what represents the interests of the institution – the office of the presidency,” one source close to the White House said. “Preserving executive privilege trumps political optics.”
While Trump’s personal attorney Rudy Giuliani suggested privilege could be used to keep parts of the report from public view, the issue is up to the White House, not the President’s personal attorneys.
The Justice Department and White House declined comment.
As the White House is bracing for Mueller’s investigation to conclude, some officials describe a sense of anxiety at the contents of the report, even as they welcome the probe’s end.
A person close to the President’s legal team offered some caution in a sign of the level of anxiety about how closely held Mueller has kept his investigation.
“Let’s get the airplane on the runway and see what we got,” the source said.
But Trump, who spent part of this weekend lambasting Mueller on Twitter, does not plan to be blindsided by what the Justice Department possibly discloses to Congress and the public of the report. Instead, his lawyers expect the contents will be viewed first by them.
White Houses under Republican and Democratic presidents have asserted executive privilege to prevent certain information from being disclosed to Congress, and attorneys representing the White House and Trump have personally indicated they could assert that privilege over information that would be disclosed to Congress and the public.
During his confirmation hearing last year, Barr said while he did not “have a clue as to what would be in the report,” he said “someone might raise a claim of executive privilege” if there is “material to which an executive privilege claim could be made.”
Barr has wide discretion under existing regulations to decide what to share or not share with lawmakers – but the issue could ultimately be subject to extended legal battles.
Transparency questions
Democratic and Republican lawmakers alike have repeatedly stressed the importance of transparency in the release of the conclusions of the two-year investigation stemming from Russian interference in the 2016 elections.
Last Thursday, the House overwhelmingly approved a resolution urging the release of Mueller’s report.
A source close to the President’s legal team said the White House allowed interviews with White House officials with the understanding that claims of executive privilege could later be raised. The White House produced more than a million documents to the special counsel’s office, but not all of that material would be subject to executive privilege, nor would documents from the campaign.
“The White House shouldn’t advise the attorney general on what it should share and not share. That’s up the attorney general and he’s independent on this one,” said Mark Tuohey, a former prosecutor who has been involved in past special counsel investigations.
“The report by the special counsel, which could be the subject of a summary by the AG, focuses on potential conduct of the President of the United States and his aides and staff. That is not a matter to be discussed with the White House before the matter is sent to Congress,” he said.
But Tuohey said it would be appropriate for the Justice Department to give the White House counsel’s office the opportunity to weigh in on specific pieces of information that could be subject to executive privilege protections.
Mueller’s confidential report to Barr is expected to happen any day now.
The impending release of the report has led some aides to the President to conclude Mueller was dropping his demand for a sit-down interview with Trump, which would be a win for the White House and its legal team.
Indeed, many of Trump’s aides view the conclusion of Mueller’s tenure – which has symbolically consumed all but a few months of the administration – as a positive development that could allow the President and his team to move forward.
That appeared to be Trump’s optimistic view on Monday when he tweeted his belief that the report would reveal itself to be a sham.
“Very few think it is legit! We will soon find out?” he wrote.
Mueller’s ripple effect
Of course, the ramifications of Mueller’s investigation are far from over, including the various ancillary probes that were launched as a result of what his team uncovered. The Southern District of New York is still pursuing investigations into matters linked to the President and Democratic lawmakers plan to pursue a series of investigations after Mueller’s investigation concludes.
Most White House aides are siloed off from issues relating to Mueller and are preparing to move Trump’s agenda beyond the border wall fight and North Korea summit that together consumed the first part of the year.
Whatever issues the administration pursues next, however, will play out against the backdrop of a brewing fight over disclosures from the Mueller report.
One White House aide said Trump’s team is hitting the “reset button” after plowing through rancorous budget negotiations and North Korea talks.
Emmett Flood, the White House lawyer tasked with handling the White House’s response to the Mueller probe, and officials have held meetings to game out the White House’s response to whatever becomes public, a senior White House official said.
Officials have prepared the outlines of how the White House would react to different scenarios, based on the extent of Barr’s disclosure to Congress and whether the findings are exculpatory or damaging to the President, the official said. Those efforts have largely been undertaken by Flood and his team, rather than by officials in the White House press shop, which has sought to keep its distance from the Mueller investigation.
While the White House has tried to avoid commenting on the probe, that could change once the Mueller report emerges, particularly if it is exculpatory, a senior White House official said. The White House has repeatedly directed reporters to the President’s legal team on questions related to the investigation, but White House officials have mulled a response to the report from the President or White House press secretary Sarah Sanders depending on the outcome.
The investigations by Democrats are picking up pace and the White House is grappling with how to be both perceived as compliant with the requests while handing over a minimum of potentially privileged documents, aides said.
“This White House will do everything legally in its power to work with the Democrats and the House to get them information that they need,” a senior White House official said. “But it has to be legal, it has to be right and it has to be fair.”
As White House officials discuss the official response to Mueller’s conclusion, aides are also mindful their plans could go awry in moments with a tweet from Trump, who has repeatedly taken to Twitter to assail the Mueller investigation as a “witch hunt.”