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THREAD: I invoked Rod Serling & Twilight Zone when the news hit about #Trump asserting #ExcutivePrivilege over documents underlying #MuellerReport. I thought I should explain given your questions about US v Nixon & more.
First, there are two different issues to sort through. 1. grand jury material redacted in #MuellerReport and the grand jury material - documents - the report relies on; and 2. documents like McGahn's notes that Mueller refers to in the report that may exist outside of grand jury
House Dems are basically arguing they can see grand jury material behind closed doors (not public) without a court order. The Congressional Research Service notes that 2 court decisions agree with them & others do not. This sets up a court battle. fas.org/sgp/crs/secrec…
Congress can always ask the court to unseal it -let the grand jury materials be public or at least let them be released to Congress without allowing them to be made public. A recent DC Court opinion, McKeever, said courts can't just do that. bit.ly/2CYIS86
In McKeever, the court said that grand jury material could only be released if an excpetion to secrecy applied. In footnote 3, it said that in #Watergate proceedings, fed'l court releasing grand jury material to Congress was different cuz there was a "judicial proceeding."
This means that both sides can use McKeever to argue its side - Congress can say the #Watergate case law & this footnote means a court can order release of the grand jury material to Congress. DOJ can argue the opposite...setting up a court battle.
Turning to #ExecutivePrivilege, well, US v Nixon & a case called Judicial Watch v. DOJ (aka #FastAndFurious). Between these 2 cases, #Trump position is weak IMHO but you can always find a lawyer with a different opinion.
#SCOTUS in US v Nixon where it said #ExecutivePrivilege is real & Nixon argument to protect #watergate tapes is not! (ok, not legalese, but that's why you follow me). To be clear, US v Nixon was somewhat different from #MuellerReport, but I'll come back to that.
#SOTUS said we protect exec communications cuz "Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process." We want honesty.
#SCOTUS in US v Nixon said that it we can't have that privilge interfere with due process or courts constitutional powers: "an absolute, unqualified privilege would plainly conflict with the function of the courts under Art. III." Also with Art. I Congressional oversight power!
#Barr makes the constant pt that there is no "underlying crime." Maybe that is his way of trying to distinguish US v Nixon - where 7 white house aides were indicted by a grand jury & going to try & the grand jury asked for Congress to see its materials. A problem for Dems?
The principles of US v Nixon still apply, although maybe the court would say use alternative methods - McGahn and his & his Chief of Staff notes, etc. Congress should go hard and fast on court action on its subpoenas in any event.
That brings us to #FastAndFurious where Judge Berman Jackson (yes, the same judge as the Roger Stone trial & 5 other #MuellerMatters told the #Obama DOJ that #ExecutiveoPrivilege would NOT protect DOJ communications from Congressional Republicans on ATF "gun-walking" gone wrong.
Favorite Judge Berman Jackson: "There is no need to [worry about]...the impact that the revelation of any record could have on candor in future executive decision making, since any harm...from the public revelation of the deliberations..has already been self-inflicted,'' Boom.
Lawyers can argue both sides of the #ExecutivePrivilege issue & the concern that many have raised around how long it will take are right to be concerned. That means Congress must go to court swiftly and resolutely with the Constitution in its hand and the people at its back!
