The head of the House Judiciary Committee on Tuesday said news that White House lawyers plan to get special counsel Robert Mueller’s report prior to its release to Congress and redact portions to protect internal White House communications is “unacceptable.”
House Judiciary Chairman Jerrold Nadler, D-New York, said Tuesday that the White House plan to review the report and redact information using a claim of executive privilege would be outside of the bounds of what is allowed under the special counsel law.
“There is no provision in the regulations for White House review, and it would be unacceptable for President Trump — the subject, if not the target of the Special Counsel’s work — to edit the report before it goes public,” Nadler tweeted.
The Washington Post reported in January that the White House had hired 17 lawyers to handle any question of executive privilege dealing with both Mueller’s report and a recent request by Congress Democrats for documents from 81 people, institutions and corporations connected to President Donald Trump.
The question of whether the president can use executive privilege is not a new one. Presidents from George Washington to Barack Obama have moved to keep internal communications from the eyes of both the court and Congress.
What is executive privilege and how can a president use it? Here’s a look at what Trump may be claiming when it comes to the Mueller report and Congress' inquiry.
What is executive privilege?
Executive privilege means the president and certain other officials of the executive branch can claim the right to withhold certain information sought by Congress or a court. They are able to keep communications private if they can show that making those conversations public would disrupt the functions of the executive branch.
However, the privilege does not extend to every conversation the president has with his advisors. For instance, he could not claim executive privilege for a conversation about criminal activity.
Is executive privilege guaranteed in the Constitution?
No, executive privilege is not outlined in the Constitution.
How do presidents use executive privilege, then?
Presidents all the way back to Washington have claimed executive privilege even though it is not outlined in the Constitution. They have, instead, relied on the courts to reaffirm that power.
Through the years, courts have not only reaffirmed the power, but they have defined just what falls under executive privilege.
The Supreme Court famously weighed in on the right of executive privilege in the case of the U.S. vs. Nixon. In 1974, the court ruled against Nixon’s use of executive privilege in his attempt to keep private internal White House conversations. While the court said Nixon as president had the power to use executive privilege, that power does have limits.
The court ruled that "neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, … can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances."
The decision that Nixon would have to release certain White House communications led to his resignation.
Would executive privilege apply to conversations Trump had during the 2016 campaign?
No, the privilege would not exist in that circumstance.
Can the president’s detractors do anything about a claim of executive privilege?
If Trump decides to assert executive privilege, Democrats will likely challenge his use of it and that challenge could end up in court.