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Recent announcements by the White House and Congress mark a significant escalation in the protracted conflict over the Mueller report.

On Wednesday, May 8, President Donald Trump asserted executive privilege over the entirety of special counsel Robert Mueller’s final report on the Russia investigation, including the materials used to prepare it. He also invoked privilege over any other materials related to the Russia investigation that have been subpoenaed by Congress.

On the same day, the House Judiciary Committee voted, in a 24-to-16 vote, to hold Attorney General William Barr in contempt of Congress for failing to provide a full and unredacted copy of the Mueller report. The vote marked the first official House action to punish a government official in the standoff over the Mueller report.

HLS scholars and legal experts consider the limits of executive privilege and congressional oversight, and weigh in on whether our Constitution is designed for this highly confrontational moment. Here is a selection of their articles and op-eds.

Executive Privilege: The Real Battle Is Yet to Come

An op-ed by Cass Sunstein: President Donald Trump’s “protective assertion of executive privilege,” in response to a subpoena from the House Judiciary Committee, is creating a great deal of confusion. To dispel it, we have to see the trees, not the forest. To do that, it is crucial to understand that the subpoena called not only for the unredacted version of the Mueller report, but also for “[a]ll documents referenced in the Report” and “[a]ll documents obtained and investigative materials created by the Special Counsel’s office.”

Continue Reading at Bloomberg »

Executive Privilege Isn’t a Magic Wand to Protect Trump

An op-ed by Noah Feldman: President Donald Trump’s administration invoked executive privilege Wednesday to explain why Attorney General William Barr won’t hand over special counsel Robert Mueller’s full report to Congress. There’s just one problem: Executive privilege has nothing whatsoever to do with the parts of the report that were redacted in its earlier release.

Continue Reading at Bloomberg »

How the Trump White House Is Setting the Stage for a New Constitutional Crisis

Law professors explain what it would mean for Congress to hold Trump attorney general William Barr in contempt—and what House Democrats are likely to do next. … An across-the-board stonewalling strategy places what is supposed to be a basic element of American tripartite democracy—the checks and balances each branch imposes on the others—in serious jeopardy. “The Trump administration’s refusal to cooperate represents a challenge to the very idea that Congress provides oversight of the president,” Harvard Law School constitutional law professor Noah Feldman told me. “Anyone elected president, by definition, has a lot of power. Unless someone is in a position to provide oversight, the president functions as above the law.” … In the alternative, Congress can enforce its own contempt findings by ordering the House sergeant-at-arms to arrest an uncooperative witness who, as the Supreme Court put it in a landmark 1935 opinion, “obstruct[s] the performance of the duties of the legislature.” Lawmakers haven’t invoked this “inherent contempt power” in nearly a century, notes Larry Tribe, Feldman’s colleague at Harvard Law School, which can make it sound a little outlandish to modern ears. “But you have to realize we are not living in normal times,” he says. “In confronting this kind of unrestrained White House occupant, Congress might have to reach back into its toolbox.”

Continue Reading at GQ »

Thoughts on Barr and the Mueller Report

An article by Jack Goldsmith: I’ve been in a cave for several weeks crashing to complete my new book and am only now emerging to read Special Counsel Robert Mueller’s report and the commentary on it. I’ll hopefully have more to say on the report, especially on its legal analysis of criminal obstruction of justice as applied to the president. But for now I want to comment on the reaction to Attorney General William Barr’s handling of the report in his March 24 letter and his May 1 testimony. It seems over the top to me.

Continue Reading at Lawfare »

#ConstitutionalCrisis? Trump’s battle with Congress comes to a head

… On Wednesday, the House judiciary committee voted to hold the president’s attorney general, William Barr, in contempt of Congress. It was a seminal moment in Democrats’ legal battle with the White House over access to the special counsel Robert Mueller’s report on how Russia helped Trump win the 2016 election. … Laurence Tribe, a constitutional law professor at Harvard Law School, says: “This is more than minor fireworks. It’s a fundamental challenge to the structure of checks and balances. In particular, the president’s wholesale, blunderbuss assertion of executive privilege over the entirety of the Mueller report is legally groundless to the point of being preposterous.”

Continue Reading at The Guardian »

Lawfare contributor Jonathan Shaub: What Is a ‘Protective’ Assertion of Executive Privilege?

The assertion of privilege is not an actual “conclusive” assertion of executive privilege; it is only a “protective” assertion. … What does that even mean? And why would the administration take such an action? A bit of background helps explain what is really happening here.

Continue Reading at Lawfare »

The Constitutional Tug of War Is Just Getting Started

The House Judiciary Committee is set to vote on holding Attorney General William Barr in contempt of Congress, for failing to provide a full and unredacted copy of the Mueller report. It’s the latest in a series of clashes between the legislative and executive branches—clashes that don’t show any signs of letting up. Was our 230-year-old Constitution designed for this highly partisan, highly confrontational moment? Guest: Noah Feldman, Harvard Law School professor and host of Deep Background, available on Luminary.

Continue Reading at Slate »