Did Trump Waive Executive Privilege over McGahn’s Congressional Testimony?

The House Judiciary Committee served former White House Counsel Don McGahn with a subpoena, available here, to produce several documents on May 7, 2019 and appear for sworn testimony on May 21, 2019. The topics primarily relate to McGahn’s knowledge and comments detailed in the Meuller Report’s obstruction-of-justice section. The HJC no doubt wants to explore McGahn’s presidential conversations in more detail.

The Washington Post reported that the White House would assert executive privilege to prevent McGahn’s testimony. According to the New York Times, HJC Chairman Jerrold Nadler said that this assertion would “represent one more act of obstruction by an administration desperate to prevent the public from talking about the president’s behavior.” The White House did not back down—yesterday, April 28, 2019, Counselor to the President Kellyanne Conway told CNN that asserting privilege over McGahn’s testimony was “always an option.”

But has the President already waived executive privilege such that the HJC has no boundaries when it questions McGahn (if it ever does)? Some law professors, as quoted in this Associated Press report, think so, but precedent from the Nixon, Clinton, and Bush43 administrations cautions against immediate conclusions.

McGahn Testified—Waiver?

McGahn provided 30 hours of testimony to investigators during the Mueller investigation, and the Mueller Report contains portions of that testimony. The President, as confirmed in this tweet, allowed McGahn to voluntarily appear for the interviews with no restrictions on his testimony.

Barr Confirms Non-Assertion of Executive Privilege—Waiver?

After General Barr sent Congress his Mueller Report summary, available here, but before releasing the Mueller Report, he gave a short press conference. Barr confirmed that More…

Two Trump Lawyers and a NYT Reporter Walk Into a Bar …. 1

Okay, it was a DC steakhouse, not a bar, and this is no joke.

Two of President Trump’s personal lawyers—Ty Cobb and John Dowd—ate lunch at BLT Steak on a recent Tuesday and discussed differing legal strategies for responding to Director Mueller’s Russian-related document requests.  They dined and debated with no knowledge that New York Times reporter Ken Vogel sat at an adjacent table secretly taking notes of the lawyers’ conversation.

Photo: @kenvogel Twitter

What does this episode mean for President Trump’s potential invocation of executive privilege?  What lessons can all lawyers derive from this inside-the-beltway faux pas?  Let’s discuss.

“Every Washington Reporter’s Dream”

In a recent NYT article, ‘Isn’t that the Trump Lawyer?’: A Reporter’s Accidental Scoop, Vogel provided a blow-by-blow account of his encounter with the two Trump lawyers.  He met a source at BLT Steak for lunch and, shortly after ordering, the restaurant seated Messrs. Dowd and Cobb at a table directly behind Vogel. More…

General Sessions and Executive Privilege

Over the last 24 hours, senators, reporters, and political pundits have generated lots of commentary over Attorney General Jeff Sessions’ refusal to reveal his communications with President Trump during testimony before the Senate Intelligence Committee.  Mr. Sessions cited, but did not invoke, the executive privilege as grounds for refusing to testify.

The Washington Post published this analysis quoting lawyers and law professors’ views on executive privilege.  In this online article, CNN reported on Mr. Sessions’ specific testimony and identified two 1982 DOJ memoranda from President Reagan’s administration as support.  The Wall Street Journal had this brief report on Mr. Sessions’ privilege assertion, and the L.A. Times, in this article, reported on Mr. Sessions’ exchanges with Senators Heinrich and King.

You may see Attorney General Sessions’ privilege assertion in response to Senator Heinrich’s questioning in this video clip from PBS NewsHour.

And you may see his explanation for refusing to reveal his communications with President Trump in this video clip from PBS NewsHour.

Mr. Sessions essentially stated that, although President Trump has not specifically invoked executive privilege, he was not at liberty to answer questions until the President had an opportunity to consider the question and then determine whether to invoke the privilege.

Commentators have raised several questions about the executive privilege’s application to Sessions’ testimony, stating that the requested testimony did not involve national security issues or pertain to an ongoing investigation.  And they question whether the Attorney General may refuse to answer questions when the President has not invoked the privilege.

So, let’s examine these issues from a legal, not political, perspective.

First, as explained in my recent post titled Trump, Comey, and Executive Privilege, the “executive privilege” is a broad phrase that encompasses various subcategories of privilege covering military secrets, grand-jury testimony, law-enforcement investigations, agencies’ deliberative processes, and presidential communications.

As with Director Comey’s testimony, Mr. Sessions’ potential testimony revealing his conversations with President Trump fall within the presidential communications privilege.  The presidential-communications privilege protects from disclosure communications that the President and/or his top advisors made in the performance of the President’s responsibilities.  The privilege is qualified and may be overcome upon a sufficient demonstration of need and that this evidence is not available from alternative sources.

Second, the President holds the presidential communications privilege and only he can waive it. Think of the attorney–client privilege analogy: the client, not the lawyer, holds the privilege and only the client can waive it.  If one asks a lawyer to reveal what her client said in a private meeting, the lawyer would state that she cannot answer unless her client authorizes disclosure.

Here, while Mr. Sessions does not hold the privilege and cannot officially invoke it, he cannot reveal his conversations with the President unless authorized to do so—meaning that the President has decided to waive the privilege.  According to Mr. Sessions, the President has not broadly invoked the presidential communications privilege regarding the testimony, but also has not considered the privilege with respect to the specific questions raised during the hearing.

Third, what is the process for procuring Mr. Sessions’ testimony now that he has refused to answer?  The Senate Intelligence Committee could (1) work with the Trump administration to determine whether he plans to invoke the privilege and, if not, bring Sessions back to answer the questions; or (2) challenge Sessions’ refusal to testify in court and seek a ruling on whether the privilege even applies.

As noted in my earlier post, and my Law360 article, the latter option presents a long, time-intensive process with no quick resolution.  Commentators who claim that a court will not uphold the privilege may be right, or they may be wrong.  The truth is that we will not know until the matter is actually litigated.