Attorney Rudy Giuliani is treading on dangerous ground by threatening the White House may claim executive privilege to block parts or all of special counsel Robert Mueller’s eventual report on his Russia-related investigation.
Giuliani, who is President Trump’s personal attorney rather than an official counsel for the White House, has absolutely no responsibility or authority to assert privileges that may adhere to the office of the president. He represents his client individually, not as president. An assertion of executive privilege is, at least in theory, an assertion of the legal rights of the presidency as an institution on behalf of the public, not to provide personal legal protection for whoever is the current inhabitant of the Oval Office.
Giuliani’s actual job description is only part of the problem with his threat. The substance of the threat also is problematic. It is well-established (as noted by the Nolo plain-English Law Dictionary) that executive privilege “does not extend to information germane to a criminal investigation.”
Granted, as National Review’s Andrew McCarthy has repeatedly noted, the Russia probe began as a counter-intelligence investigation, not a criminal inquiry. The story doesn’t end there, however. The order appointing Mueller specifically said the special counsel “is authorized to prosecute federal crimes arising from the investigation of these matters.” Numerous indictments and convictions already have resulted from the investigation, so obviously the report will focus heavily on criminal matters.
Withholding anything that reports on those matters would be unjustified. President Richard Nixon infamously asserted a near-absolute right of executive privilege during the Watergate investigation, but the Supreme Court of course shot him down, unanimously, in U.S. v. Nixon.
Claims of executive privilege are strongest, of course, when they involve presidential discussions about national security — about how to protect the United States from foreign powers. In this case, though, any assertion of privilege presumably would, in effect, do the opposite. It would not protect the American public from Russia, but rather would protect Russia from having its perfidy clearly outlined to the American public.
Giuliani himself backtracked later on Monday, downplaying the strength of his earlier statements about executive privilege by telling Fox News, “We prefer that as much of the report as possible is public.” Good. Yet this isn’t the first time the former New York mayor has pushed an executive privilege claim to protect Trump from possible charges of obstruction of justice. He did the same thing in November when discussing whether Trump would answer any of Mueller’s questions pertaining to possible obstruction.
This is self-service by Trump, not public service. An American president should be leading the charge to expose and counteract any foreign attempts to monkey with American representative democracy, not try to bury evidence thereof. After suffering more than two years of sturm und drang about the Russia investigation, the American public deserves to know everything possible about Mueller’s findings unless it directly releases state secrets whose airing will harm national security.
To do otherwise would not amount to protection of a justifiable privilege; it would amount to a tawdry cover-up. No such cover up should be tried or accepted.
