Image Credits: Photo: Jim Lo Scalzo/epa-EFE.
Wikipedia is far from perfect, but I find it works surprisingly well for finding accurate information about most people and topics. I use it all the time to get a first-pass on something I’m curious about. Today I wanted to refresh my memory on the role of the White House counsel. Here’s what the entry had to say about how executive privilege applies to this executive branch position:
Although the White House Counsel offers legal advice to the President, the Counsel does so in the President’s official capacity, and does not serve as the President’s personal attorney. Therefore, controversy has emerged over the scope of the attorney–client privilege between the Counsel and the President, namely with John Dean of Watergate notoriety. It is clear, however, that the privilege does not apply in strictly personal matters. It also does not apply to legislative proceedings by the U.S. Congress against the President due to allegations of misconduct while in office, such as formal censures or impeachment proceedings. In those situations the President relies on a personal attorney if he desires confidential legal advice.
Is this true? Was it true in the past but now in question? How does it fit with the White House’s instruction that former White House Counsel Don McGahn not comply with congressional subpoenas? What does it mean in light of this?
The current White House counsel, Pat Cipollone, instructed the House Judiciary Committee to redirect to the White House its requests for the records, which relate to key episodes of possible obstruction of justice identified by Robert S. Mueller III, the special counsel. His move was certain to enrage Democrats who are increasingly at odds with the Trump administration over access to witness and records that they say they need to conduct legitimate investigations.
“The White House provided these records to Mr. McGahn in connection with its cooperation with the special counsel’s investigation and with clear understanding that the records remain subject to the control of the White House for all purposes,” Mr. Cipollone wrote in a letter to the committee’s chairman, Representative Jerrold Nadler, Democrat of New York. “The White House records remain legally protected from disclosure under longstanding constitutional principle, because they implicate significant executive branch confidentiality interests and executive privilege.”
I consider it my job to find the answers to these question so I can provide them to you. But solid answers are hard to find because this administration is challenging all norms and precedents. Officially, the president is not considered a “client” of the White House counsel. Historically, there is no executive privilege granted to requests involving congressional inquiries of presidential wrongdoing. Ordinarily, any claim to executive privilege would be waived with respect to matters where the White House counsel has already cooperated and provided information. When I add this all up, the effort to prevent McGahn from cooperating with Congress seems both wrong on the merits and doomed to failure in the courts.
But these norms and precedents were established in the past before a hard conservative majority controlled the Supreme Court. They developed before the Department of Justice was headed by a man determined to run interference for a criminal president.
So, I can’t really say for sure how this will ultimately shake out. What I can say is that the House of Representatives will have a better case in court if they can unambiguously argue that they are seeking this information because it applies to “legislative proceedings by the U.S. Congress against the President due to allegations of misconduct while in office, such as formal censures or impeachment proceedings.”
So, if they want the information, they should start a formal impeachment inquiry.