Trump's executive privilege strategy could mean a messy battle

Since the time of George Washington, presidents have resorted to the privilege of the executive to oppose congressional investigations in the name of protecting the confidentiality of their decisions.

President Donald Trump last week threatened to widely claim the executive's privilege of preventing a number of past and present assistants from testifying, including some who cooperated with the investigation. Special advocate Robert Mueller in Russia. It's a strategy that could lead to a long and complicated legal battle, but even if the White House is finally defeated in court, the president and his allies could have the chance to stand for election at the polls. 2020.

"It's all about delaying things, the strategy of each administration is to drag on," said Saikrishna Prakash of the University of Virginia, expert in presidential power.

Trump in recent days complained that the Democrats in the House had stepped up their investigations as a result of the Special Advisor's investigation, which ended last month without concluding that the President had plotted with Russia or obstruction of justice.

"With all this transparency, we have finished" no collusion, no obstruction, "Trump told reporters on Friday at the White House. "Then I go out the first day they say," Let's do it again. "And I said:" That's enough. "

"So, if I'm guilty of something, it's that I've been an excellent president and the Democrats do not like it, which is a shame," he said. .

The privilege of the executive is the power of the president to retain information from the courts, the congress and the public to protect the confidentiality of the decision-making process of the Oval Office.

The privilege of withholding documents and prohibiting staff from testifying is based on the proposition that the President has an almost unparalleled need to protect the confidentiality of candid opinions in presidential judgments. The Constitution does not mention the privilege of the executive, but the Supreme Court held that this privilege stemmed from the capacity of the president to fulfill the obligations incumbent on the commander-in-chief under the Constitution.

It has become a flashpoint after Trump's administration reported that it was considering invoking the privilege of blocking Congress' attempt to subpoena it. the former White House lawyer, Don McGahn, a leading personality in the Mueller case investigation, to provide him with documents.

This reflects a change in legal tactics for Trump's lawyers. At first, they cooperated with Mueller's investigation for 22 months, encouraging officials to testify and providing more than a million documents. But starting last spring, the White House took a much more adversarial approach, questioning the integrity of the investigation and resisting certain demands.

The president's advisers, who are trying to portray the Democrats as guilty of excessive crimes fueled by supporters, want to carry out the investigation in a hurry. They think that a prolonged judicial fight could tire the patience of the voters and change the public opinion. If they hope the courts will support them, a legal battle that would lead to a defeat could approach the 2020 elections and allow Republicans to pretend more easily that the other party was interested in politics.

The haste with which House Democrats have issued more subpoenas and promises is in itself a sign that the time is on Trump's side, not Congress, Prakash said. "The speed with which we found ourselves in a stalemate is different" from the struggles of the past for documents and testimonies involving at least a semblance of negotiations, he said.

Courts do not have much to say about the privilege of the executive. But in the 1974 case of President Richard Nixon's refusal to publish the Oval Office's recordings in the Watergate Inquiry, the Supreme Court held that the privilege was not absolute. In other words, it may be more convincing to hand over documents or to authorize evidence than arguments in favor of non-disclosure. In this context, the court ruled 8-0 that Nixon had to return the cassettes.

With respect to the Watergate registrations, the Supreme Court stated that it had the last word and that the lower courts sometimes ruled in favor of resolving other conflicts. But the courts also made it clear that they preferred the White House and Congress to settle their disputes without judicial intervention, to the extent possible.

Judicial disputes over documents and testimonies can take years to resolve.

A potential hurdle for the White House: Trump has already allowed McGahn to speak to Mueller 's team, and Attorney General William Barr said the president had not invoked the privilege of letting him down. executive to prevent publication of part of Mueller's report.

"Given that, the White House has given up a lot of the privileges it could claim," said Steven Schwinn, a professor of constitutional law at the John Marshall Law School in Chicago.

Trump seems to argue that the risk that McGahn unveils the substance of the high-level conversations he's had with the president or other high-level councilors is high enough to keep him away from headquarters of the witness at a hearing in the Chamber, said Schwinn.

"But that's not how privileges work," he said. "You do not prevent someone from testifying entirely simply because you think that one of their responses may elicit communications with leaders.You raise a privilege in response to a question."

Recent presidents have relied on the approach. President George W. Bush used it to protect some sensitive information from Congress after the September 11 attacks. The Clinton administration used it to try and keep the private Hillary Clinton's answers during the investigation on Monica Lewinsky.

Republican Senator Lindsey Graham, Trump's ally and chairman of the Judiciary Committee, supports the president's efforts to not engage in what the senator has described as "completely partisan now".

Graham said he told the president, when they had spoken earlier in the week, that he would not have let "half of those people" testify earlier. Now that Muller's work is over, the South Carolina senator has said the Democrats were acting like filmmaker Oliver Stone to try to shed light on Kennedy's assassination. Stone's controversial film, "JFK", published in 1991, featured allegations that several people were conspiring to kill the president.

"I think Congress is going crazy here," Graham told The Associated Press.

In recent days, the Trump White House has created a series of obstacles for congressional investigators:

– The Trump organization has sued the chairman of the house's oversight and reform committee for stopping its efforts to obtain the company's financial statements.

– Treasury Secretary Steven Mnuchin has exceeded the deadline set for Tuesday by the House to hand over the president's tax returns, saying he would decide next month.

– The administration has asked its former Director of Personnel Security, Carl Kline, not to testify before Congress about how some Western wing aides, including Jared Kushner and Ivanka Trump, have obtained a security clearance. This led the House to despise Kline.

Schwinn has identified a potential problem, namely a lack of clarity in the White House's claims that Trump's aides, including Stephen Miller, Trump's senior immigration policy advisor, should not cooperate with Congress.

"In a regular administration, we expect from the White House that it presents aggressive constitutional arguments," Schwinn said. "But what President Trump is doing is something different – he makes these claims that are both too broad, even ridiculously broad, and in a slippery way, so that we can not understand what he says.

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Editors Associate Press Eric Tucker and Lisa Mascaro contributed to this report.

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