Can President Trump shield the redacted portions of the Mueller Report, prevent former White House Counsel Don McGahn from turning over documents, or deny other information to Congress by claiming executive privilege? Like many other legal questions, the devil is in the details.
The Supreme Court has addressed executive privilege, but not to a great extent, and it has established general principles rather than clear rules. A few considerations are important.
- Presidents definitely possess a privilege to keep conversations and other communications with their aides confidential. As the Supreme Court recognized in a case involving Richard Nixon and Watergate, if presidents cannot keep their discussions private, the potential for public dissemination of their remarks may prevent the kind of frank discussions that are critical to an effective decision-making process.
- Executive privilege is not absolute. There are other important interests at stake. In the case of Nixon and Watergate, it was important for relevant evidence to be available in criminal trials so justice could be rendered, and the defendants could have their rights protected. With Trump, there is an important interest in having Congress be able to exercise its oversight and other checking and balancing roles.
- Whether executive privilege applies will depend on a balancing of the interests at stake. The more sensitive the information, the stronger the privilege. For example, discussions about foreign policy or national security have more protection than other kinds of information. Similarly, as the Supreme Court observed in a case involving secret meetings by an energy policy task force that former Vice President Dick Cheney chaired, the privilege is stronger when the need for disclosing the information weakens. Thus, for example, courts would consider how critical is the need for Congress to have the information that Trump doesn’t want to release from the Mueller investigation in light of the information in the Report that has been released.