The Executive Privilege Puzzle: The Co-Equal Branch of Government

As I noted during the summer, DOJ did two things in close succession.

On July 21, it rolled out the contacts policy that codifies that, “the Justice Department will not advise the White House concerning pending or contemplated criminal or civil law enforcement investigations or cases unless doing so is important for the performance of the President’s duties and appropriate from a law enforcement perspective.” At least from that point forward, Joe Biden would learn no details of the investigation into his predecessor unless absolutely necessary.

On July 26, DOJ wrote Jeffrey Rosen and several other former senior DOJ officials — including Jeffrey Clark —  informing them that DOJ was waiving privilege for interviews the House and Senate wanted to conduct on, “any efforts by President Trump or any DOJ officials to advance unsubstantiated allegations of voter fraud, challenge the 2020 election results, stop Congress’s count of the Electoral College vote, or overturn President Biden’s certified victory.” As the letter from Bradley Weinsheimer laid out, this permission arose from a balancing of Legislative and Executive branch interests and determining that the Legislative interest was so significant as to warrant the waiver.

After balancing the Legislative and Executive Branch interests, as required under the accommodation process, it is the Executive Branch’s view that this presents an exceptional situation in which the congressional need for information outweighs the Executive Branch’s interest in maintaining confidentiality.

The letter continues by explaining that DOJ consulted with the White House Counsel’s Office to get their approval for waiving Executive Privilege.

Because of the nature of the privilege, the Department has consulted with the White House Counsel’s Office in considering whether to authorize you to provide information that may implicate the presidential communications privilege. The Counsel’s Office conveyed to the Department that President Biden has decided that it would not be appropriate to assert executive privilege with respect to communications with former President Trump and his advisors and staff on matters related to the scope of the Committees’ proposed interviews, notwithstanding the view of former President Trump’s counsel that executive privilege should be asserted to prevent testimony regarding these communications. See Nixon v. Administrator of General Servs., 433 U.S. 425, 449 (1977) (“[I]t must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.” see also id. (explaining that the presidential communications privilege “is not for the benefit of the President as an individual, but for the benefit of the Republic”) (internal citation omitted).

These events seems to have set up the series of developments — including Trump’s lawsuit to attempt to prevent the Archives from turning over documents to Congress, and aborted attempts by Jeffrey Clark, Steve Bannon, and Mark Meadows, among others, to shield their own testimony by invoking Executive Privilege.

As was laid out in the DC Circuit hearing the other day, this put the Executive Branch and the Legislative Branch in agreement that the documents Congress requested from the Archives should be released.

You’ve got Biden insulated from investigative details, making decisions about Executive Privilege for an investigation being conducted by a coequal branch of government.

Which is one of the reasons why I find Adam Schiff’s comments from the other day so interesting. When asked if he wanted DOJ to be more aggressive, Schiff did not assent. Instead, he said that “it is certainly possible” Congress’ effort to “expose the malefactors” “will inform the Justice Department of other facts that they may not yet be aware of yet.”

We are now trying to expose the full facts of the former President’s misconduct, as well as those around him. It is certainly possible that what we reveal in our investigation will inform the Justice Department of other facts that they may not yet be aware of yet. And so we will pursue our role in this, which is to expose the malefactors, to bring about legislation as a result of our investigation, to protect the country. But we will count on the Justice Department to play its role.

There’s a high likelihood the January 6 Commission will discover things DOJ has not found on its own. After all, Biden is waiving privilege for their inquiry, not for DOJ’s criminal investigation. So the Jan 6 is (or soon will be) examining a set of materials that are — as far as we know — otherwise inaccessible to DOJ. But, Schiff assures us, if they find something that DOJ doesn’t know about, they’ll inform DOJ.

As I’ve noted and as Schiff knows well, Mueller relied on the Intelligence Committee investigations for key evidence in his investigation. But here, it seems like the dual investigations provides a way to free up otherwise privileged materials involving Trump without having Biden violate contact rules prohibiting him learning about the ongoing criminal investigation.

40 replies
  1. Mister_Sterling says:

    I believe Schiff has something incredible. Maybe he can’t bring down Trump. But that little central Californian turd who sets next to him on the Judiciary Committee might have to worry about his freedom. And I suspect other House members are in serious shit. Schiff’s finest hour was two years ago. And while he failed to convict the president in a very strong case, Schiff might yet get his revenge over some in the GOP.

  2. DrFunguy says:

    “ So DOJ is examining a set of materials that are — as far as we know — entirely inaccessible to DOJ”

  3. Glen Dudek says:

    Why couldn’t Biden/White House Counsel’s Office have made a similar specific waiver of privilege to DOJ without knowing the details of any DOJ investigations, and if they had, how would we learn of it?

  4. Bay State Librul says:

    Part II of Mueller vs Trump vs Barr?

    Another day in court.

    Can we have a ceremonial book burning of Mueller Part I

    From the news wires…

    The Justice Department is in the process of reviewing an “alternative” version of the Mueller report that’s been kept under wraps, according to a new court filing.

    The Manhattan US attorney’s office notified District Judge Katherine Polk Failla on Thursday that the department has “located and begun processing” the document, which is sometimes referred to as the “Alternative Mueller Report.” Politico first reported the news.

    Andrew Weissmann, a longtime former federal prosecutor who served as one of special counsel Robert Mueller’s top deputies during the FBI’s Russia investigation, revealed the existence of the report in his book, “Where the Law Ends: Inside the Mueller Investigation.”

    Weissmann expressed deep dissatisfaction with the final report that was released to the public in April 2019 and accused Mueller of having let down the public.”

    • drouse says:

      The Mueller Report – the director’s cut, where we find out just what was left on the cutting room floor. I couldn’t help notice that in the search that I did, the clear majority of the results were from right wing sites that leaned heavily on the scare quotes around the word alternative.

  5. Peterr says:

    The firewall between DOJ and the White House is a good thing, but given the current foreign policy mess with Russia over Ukraine, I can easily imagine a very appropriate scenario where the DOJ gives the WH a heads up about possible charges around Russia. The president absolutely needs to be aware of the (at this point hypothetical) possibility of charges involving Trump campaign connections with Russian assets.

    What I am more interested in, however, is how things work between the WH and Congress. The Iran-Contra investigation got completely hammered by the manner in which the congressional hearings (with grants of immunity) derailed the work of Lawrence Walsh to hold various executive branch officials accountable. My WAG is that Schiff is well aware of this history, and determined not to repeat it.

    This is a real dance, and the DOJ and Congress damn well better get it right.

    • timbo says:

      On the other hand, Schiff may also be aware of pricely how little will happen if some idiot GOP President gets back into power in 2024, let alone the J6 Committee gets shutdown if the GOP hacks retake the House in 2022. Therefore, it may be that some forms of immunity may be offered so as to get to the bottom of exactly who and why things happened the way they did on Jan 6 and leading up to if (from at least April 2020). Be prepared for immunity offers to go out when and if that is necessary.

      As a reminder, Zoe Lofgren (also D-California on the J6 Committee) was there back during Watergate so she’s well aware of when and how immunity offers have occurred in the past, etc.

  6. JohnForde says:

    Maddow tonight reporting that the DOJ letter drafted by Jeff Clark pressuring GA to send alternate electors is not merely the work of Clark but also carries metadata showing involvement of the White House Communications agency.

    • Rayne says:


      EDIT: Adding Maddow’s two-tweet thread —

      EDIT-2: This observation by John Dean is really critical to understanding the context of this metadata —

      Dean adds in a second tweet:

      This information tells me Clark’s letter was known and circulated within the White House, on WHAC’s secure system, and likely sent to others outside the White House who logged on to the secure system. This makes it more likely Trump was aware of it. Clearly it got out of DOJ!

      Even more obvious why Clark and Eastman both planned on asserting the Fifth Amendment for at least part of their testimony.

      • bmaz says:

        Cannot listen to Maddow anymore, but who is this Forde person? Is he new here? May have to investigate!…..

      • timbo says:

        This sounds like a big no-no vis Hatch Act. Should give the J6 Committee significant more standing in court struggles over information and documents one would think…

    • Hika says:

      Who was in the WH Comms Office after Grisham walked back over to Melania’s side of the building in April 2020 after signally failing to communicate with anyone other than the right-wing noise machine?

      • Rayne says:

        Apparently I have been lax following your Twitter feed. o_0

        EDIT: Thinking about the way in which the Ukraine-quid pro quo transcript was ratholed in the NSC Intelligence Collaboration Environment where code-word classified content was stored. What’s the chances there’s documentation squirreled away in there as well?

      • earlofhuntingdon says:

        One more proof that a DPhil from Ann Arbor on the Isis ain’t the same thing as a PhD from Michigan.

      • timbo says:

        Bummer. On the otherhand, this sort of thing will no doubt ramp up the investigative journalism juices at the big media companies a notch or two… if we’re lucky?

      • madwand says:

        There are times when watching Maddow that I think you guys are acting in concert, whether by accident or design. But if I were Maddow I would be a fly on the wall of this blog.

        • Rayne says:

          We probably should have kept count over the history of this site how many times something Marcy wrote was picked up and reported as if breaking news/original reporting.

  7. JohnForde says:

    Now both Jeff Clark and sedition legal theoretician John Eastman are BOTH pleading the fifth. White House Communications Agency is a part of DOD.
    Will Kash Patel be the next player to take the fifth?

      • Rugger9 says:

        Too bad HIPAA precludes demanding proof of the “medical” condition because I think Clark hasn’t finished his training for his testimony (“I take the 5th, I can’t recall, etc.”) because these mantras take time. However, in spite of this the Committee had been looking at other evidence tied to Jeffrey which might wall off a few otherwise plausible deniability.

      • Leoghann says:

        The poor man! He can’t seem to get his head out of his ass. Surgery may be required. (I’m sure the Jan 6 Committee will be happy to tear him a new one, if necessary.)

    • bmaz says:

      Any competent defense attorney would have been telling these folks to do just that, and shut up in the meantime.

        • timbo says:

          It’s a right if what you would testify to might directly incriminate yourself. As a right, you can do this and not be disbarred…if there is a legitimate chance that you would be incriminating yourself by testifying. If not then, yeah, disbarment certainly gets a lot closer.

        • klynn says:

          Thank you! That leads me to ask: So he can take the 5th and bypass any state bar required duty to disclose breaking the law?

          This seems very chicken v egg – which came first, type of circular thinking. I mean won’t the evidence lead to his being disbarred? Isn’t this the dance that led Colson to change his course during Watergate?

        • ducktree says:

          I also am not a lawyer, but it goes without saying that with or without both of their testimony – the shot-calls were coming from inside the White House. Res ipsa loguitor, mebbe.

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