• Home
  • Latest
  • Fortune 500
  • Finance
  • Tech
  • Leadership
  • Lifestyle
  • Rankings
  • Multimedia

Trendingnow

1

Bars, bowling alleys, and movie theaters cost too much to run and visit. Americans have run out of places to hang out and we're paying with our health

2

The labor market could become so backward that the economy will have to shed jobs to keep unemployment steady

3

As Trump balks again at escalating war, Iran smells 'blood in the water' and looks to exploit its newfound strategic advantage, experts say

1

Bars, bowling alleys, and movie theaters cost too much to run and visit. Americans have run out of places to hang out and we're paying with our health

2

The labor market could become so backward that the economy will have to shed jobs to keep unemployment steady

3

As Trump balks again at escalating war, Iran smells 'blood in the water' and looks to exploit its newfound strategic advantage, experts say
Politics

Will the Mueller Report Stay Secret? U.S. v. Nixon Holds Clues

By
Erik Larson
Erik Larson
,
Billy House
Billy House
, and
Bloomberg
Bloomberg
Down Arrow Button Icon
By
Erik Larson
Erik Larson
,
Billy House
Billy House
, and
Bloomberg
Bloomberg
Down Arrow Button Icon
March 5, 2019, 9:49 AM ET
Add Fortune on Google for similar content.

If Donald Trump claims executive privilege to keep Robert Mueller’s report on Russia secret, it could trigger a crucial test of the presidential power.

Democratic leaders say they’ll subpoena the special counsel’s report on Russian interference in the 2016 presidential election, as well as the evidence underlying it, if Attorney General William Barr declines to hand it over to Congress. If Barr balks at the subpoena, the legislators say, they’ll sue to enforce it.

Executive privilege “is at its strongest when applied to information the president needs to guide his decision-making, and this is far, far from that,” David Super, a professor at Georgetown Law in Washington, said in an interview. “The privilege is weakest when the information is needed by Congress to perform specific, constitutionally assigned functions, and impeachment is one of those.”

Even if it never comes to impeachment, a fight between the Trump administration and the Democratic-controlled House of Representatives over the report is all but certain, and it wouldn’t take an assertion of executive privilege to set it off. The Justice Department could withhold materials on grounds of privacy, sensitive continuing investigations, classified information and long-held DOJ regulations.

Whether by executive privilege or otherwise, the administration’s success at deflecting a subpoena would depend on the balance the courts strike between Congress’s investigative and oversight authority, the public’s interest in learning what Mueller discovered and the executive branch’s protection of internal communications.

That’s the sort of balance the Supreme Court weighed in the 1974 landmark case U.S. v. Nixon, in which the president’s secret White House tapes were sought in a criminal case stemming from the Watergate scandal. The court said the judiciary had “traditionally shown the utmost deference to presidential responsibilities” by extending executive privilege over confidential communications involving “military or diplomatic secrets.”

Yet no case had “extended this high degree of deference to a president’s generalized interest in confidentiality,” it found.

The privilege is a “narrow” right that will be hard to invoke in a fight over the Mueller report because of Americans’ interest in learning whether Trump’s presidential campaign colluded with Russia, Mimi Rocah, a former federal prosecutor in Manhattan, said.

“Here, as in Watergate, the public interest is extremely high given that it is about the integrity of the democratic process,” Rocah said.

“Here, as in Watergate, the public interest is extremely high given that it is about the integrity of the democratic process,” Rocah said.

To review the Mueller material, the House Judiciary Committee has signaled it will issue sweeping subpoenas if necessary, including of Mueller as well as current and former members of his team. Chairman Jerrold Nadler of New York, who said in January that “executive privilege can always be pierced by a specific and legitimate criminal or congressional inquiry,” on Monday demanded documents from 81 individuals and entities.

Certainly the Republicans had some success in batting back privilege when the shoe was on the other foot in the legal struggle to make Barack Obama’s Justice Department turn over communications about Operation Fast and Furious.

Fast and Furious was the name given a program by the DOJ to allow illegal gun purchases in the U.S. in order to trace the guns to gangs in Mexico. The operation lost track of about 2,000 weapons, two of which turned up at a firefight in which a U.S. Border Patrol agent was killed.

The GOP-led House Committee on Oversight and Government Reform — the same panel, now under the Democrats, that heard testimony last week from the president’s former lawyer Michael Cohen — issued a subpoena for records on the failed program and sued the Obama administration in 2012 to enforce it. The House cited Attorney General Eric Holder for contempt of Congress. The administration’s “attempt to hide behind executive privilege only adds insult to injury,” House Oversight Chairman Jason Chaffetz said in 2016.

In January of that year, in a kind of split decision, a trial court ruled that the DOJ had to provide documents for which it hadn’t offered any justification for invoking privilege, but not those withheld for other reasons, including personal privacy and law enforcement sensitivity.

Courts weighing assertions of executive privilege consider a variety of factors. Among them are whether the materials in question constitute communications with the president over decision-making, more general deliberations among officials of the executive branch, or discussions of law enforcement or national security; the interests of confidentiality versus those of the public and of Congress in seeking to do its job; and evidence of wrongdoing.

But most cases have involved statements to or discussions involving the president himself, Super said.

“A report directed to the attorney general, and one not obviously implicating any decision required of the president, would be far removed from even the less successful invocations of executive privilege in the past,” he said.

Other legal experts find the prospect of defeating the executive branch’s prerogatives and forcing disclosure of the full report unlikely — or disturbing.

Regulations “carefully drafted” in consultation with Congress “provide that the final report would be made on a confidential basis to the attorney general,” Michael W. McConnell, director of the Constitutional Law Center at Stanford Law School, cautioned. “For Congress to decide, after the fact and in the context of one particular investigation, to violate the terms of those regulations would be deeply troubling,” said McConnell, an appeals court judge in Denver from 2002 to 2009.

Congress might argue the White House waived its privilege by allowing officials including former counsel Don McGahn and former chief of staff John Kelly to sit for interviews with Mueller. That won’t work, said David Rivkin, a partner with Baker Hostetler and a former Justice Department and White House Counsel official.

Executive privilege “is never waived when the information is revealed to another member of the executive branch,” such as Mueller, Rivkin said, and “nothing is entitled to greater executive privilege than discussions between the president and his senior advisers.” Then there is the “venerable principle that you don’t disclose information from an investigation against people you decide not to prosecute,” he said.

In short, Rivkin said, the “notion” that a federal court would overturn the long-practiced legal conventions defining executive privilege is “just risible.”

Nor would a subpoena of Barr himself be a quick route to disclosure. Even if he were found in contempt of Congress for flouting it, likely a drawn-out process, it would be up to him, as attorney general, to enforce the finding.

Mueller’s report is scarcely the only source of information Congress can tap. In addition to the dozens of indictments already secured by his office and prosecutors in Manhattan, legislators could seek access to testimony from the grand jury Mueller convened to consider evidence and bring those indictments.

There, because of a long history of abuse, strict rules are in place prohibiting materials from becoming public, according to David Golove, a constitutional-law professor at New York University.

One exception is using the material in a judicial proceeding.

“That language,” he said, “might be interpreted to include an impeachment inquiry.”

About the Authors
By Erik Larson
See full bioRight Arrow Button Icon
By Billy House
See full bioRight Arrow Button Icon
By Bloomberg
See full bioRight Arrow Button Icon
Add Fortune on Google for similar content.

Latest in

Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025

Most Popular

Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Fortune Secondary Logo
Rankings
  • 100 Best Companies
  • Fortune 500
  • Global 500
  • Fortune 500 Europe
  • Most Powerful Women
  • World's Most Admired Companies
  • See All Rankings
  • Lists Calendar
Sections
  • Finance
  • Fortune Crypto
  • Features
  • Leadership
  • Health
  • Commentary
  • Success
  • Retail
  • Mpw
  • Tech
  • Lifestyle
  • CEO Initiative
  • Asia
  • Politics
  • Conferences
  • Europe
  • Newsletters
  • Personal Finance
  • Environment
  • Magazine
  • Education
Customer Support
  • Frequently Asked Questions
  • Customer Service Portal
  • Privacy Policy
  • Terms Of Use
  • Single Issues For Purchase
  • International Print
Commercial Services
  • Advertising
  • Fortune Brand Studio
  • Fortune Analytics
  • Fortune Conferences
  • Business Development
  • Group Subscriptions
About Us
  • About Us
  • Press Center
  • Work At Fortune
  • Terms And Conditions
  • Site Map
  • About Us
  • Press Center
  • Work At Fortune
  • Terms And Conditions
  • Site Map
  • Facebook icon
  • Twitter icon
  • LinkedIn icon
  • Instagram icon
  • TikTok icon
  • YouTube icon

Latest in

Sam Altman wearing a suit
SuccessWealth
Sam Altman reveals the investing advice billionaire Peter Thiel gave him that helped him amass a $3.3 billion net worth without OpenAI equity
By Preston ForeAugust 3, 2026
1 hour ago
Forget Gen Z: People in their 70s and 80s are some of the earliest Americans to welcome physical AI into their homes and daily routines
AITech
Forget Gen Z: People in their 70s and 80s are some of the earliest Americans to welcome physical AI into their homes and daily routines
By Marco Quiroz-GutierrezAugust 3, 2026
2 hours ago
e
CommentaryAntitrust
Careful what you bid for: The Ellisons’ Paramount/WBD deal is slipping toward a costly legal and financial cliff
By Jeffrey Sonnenfeld, Nell Minow and Stephen HenriquesAugust 3, 2026
2 hours ago
Fortune Daily video show graphic showing host Ellie Austin
C-SuiteFortune Daily
Welcome to Fortune Daily
By Ellie AustinAugust 3, 2026
3 hours ago
yen
EconomyCurrency
Yen rises amid speculation of more intervention after U.S. support
By Mia Glass, John Cheng, Ruth Carson and BloombergAugust 3, 2026
3 hours ago
Photo of traders on floor of New York Stock Exchange
EconomyIran
Oil tumbles and stock futures surge after Trump said Iran deal was near
By The Associated Press, Elaine Kurtenbach and Matt OttAugust 3, 2026
3 hours ago

Most Popular

Bars, bowling alleys, and movie theaters cost too much to run and visit. Americans have run out of places to hang out and we're paying with our health
North America
Bars, bowling alleys, and movie theaters cost too much to run and visit. Americans have run out of places to hang out and we're paying with our health
By Catherina GioinoAugust 2, 2026
1 day ago
The labor market could become so backward that the economy will have to shed jobs to keep unemployment steady
Economy
The labor market could become so backward that the economy will have to shed jobs to keep unemployment steady
By Jason MaAugust 1, 2026
2 days ago
As Trump balks again at escalating war, Iran smells 'blood in the water' and looks to exploit its newfound strategic advantage, experts say
Middle East
As Trump balks again at escalating war, Iran smells 'blood in the water' and looks to exploit its newfound strategic advantage, experts say
By Jason MaAugust 2, 2026
23 hours ago
Trump just invoked a 1930 tariff law no president has ever used — against Canada
Commentary
Trump just invoked a 1930 tariff law no president has ever used — against Canada
By Caleb PetittAugust 2, 2026
1 day ago
The average worker would need to save for 52 years to claw their way out of the middle class and be classified as wealthy, research reveals
Success
The average worker would need to save for 52 years to claw their way out of the middle class and be classified as wealthy, research reveals
By Orianna Rosa RoyleAugust 2, 2026
1 day ago
Jensen Huang says ‘a lot’ of six-figure jobs in plumbing and construction will soon be unlocked because someone needs to build new AI centers
Success
Jensen Huang says ‘a lot’ of six-figure jobs in plumbing and construction will soon be unlocked because someone needs to build new AI centers
By Preston ForeAugust 1, 2026
2 days ago

© 2026 Fortune Media IP Limited. All Rights Reserved. Use of this site constitutes acceptance of our Terms of Use and Privacy Policy | CA Notice at Collection and Privacy Notice | Do Not Sell/Share My Personal Information
FORTUNE is a trademark of Fortune Media IP Limited, registered in the U.S. and other countries. FORTUNE may receive compensation for some links to products and services on this website. Offers may be subject to change without notice.