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Seth Abramson @SethAbramson
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(THREAD) "Executive privilege" is about to become the most important term in U.S. political discourse. This thread—written by an attorney—offers a basic primer in executive privilege that'll help you navigate the Trump-Russia story in the days ahead. I hope you'll read and share.
1/ Because executive privilege only arises in—that is, can only be raised in—unusual circumstances, it hasn't often been litigated in the courts and doesn't even have a firm definition in case law. Usually, the three branches of government find ways to avoid use of the privilege.
2/ The privilege attaches to the executive branch of government, not the judicial or legislative branches. It becomes relevant when Congress wants information from the executive branch or a subpoena has been issued by a judge to get certain information from the executive branch.
3/ Usually, the mere specter of an assertion of executive privilege is enough to send the parties to the negotiating table to work out a way for a smaller stock of information than was originally sought to be given to Congress or a subpoena-issuing judge. It's a negotiating chip.
4/ In the present case—the Trump-Russia probe—it's not clear that executive privilege is going to be a mere negotiating chip, as there is certain information the executive branch (namely its head, Mr. Trump) doesn't want other branches to have access to under any circumstances.
5/ Trump doesn't want the other branches to access this information because it might incriminate him and lead to his impeachment, removal, indictment, prosecution, and incarceration. Specifically, he's afraid certain information could lead to charges of Obstruction or Conspiracy.
6/ With that in mind, there's really no amount of a certain type of information the executive branch is going to allow the judicial branch to subpoena, and that means that, as has only rarely happened before, the issue of executive privilege will come before the Supreme Court.
7/ Executive privilege is an umbrella term for four privileges that may allow the executive branch to refuse to turn over certain documents/testimony: national security privilege, attorney-client privilege, deliberative process privilege and presidential communications privilege.
8/ "Attorney-client privilege" is already reasonably well understood by laypeople—generally speaking, and with only rare exceptions, conversations between attorneys and their clients are confidential unless and until the client (and only the client) agrees to waive the privilege.
9/ National security privilege isn't hard to understand—though in its operation it's complex. Basically, the executive branch can withhold information from Congress or a judicial subpoena if the provision of the information to the party requesting it would harm national security.
10/ In the Trump-Russia case, there may on occasion be claims of attorney-client privilege, but there are unlikely to be many valid assertions of national security privilege—mostly because the probe is about uncovering threats to national security, not exposing NatSec operations.
11/ Attorney-client privilege has already been *fraudulently* raised by the president's son in testimony before Congress. Don Jr. claimed that whenever an attorney is in a room where a conversation is happening, that conversation is privileged for any and all persons in the room.
12/ This is wrong on *every* count: the attorney must be one you've retained; the conversation must generally pertain to the course of representation; it can't involve discussion of future crimes; it can't occur in a situation where you've waived it (e.g., if others are present).
13/ Don Jr. raised attorney-client privilege to hide statements he made to a third party while the third party's lawyer was present—and not only did the nature of the conversation suggest a non-confidential disclosure and a waiver, it's likely future crimes were being discussed.
14/ Don got away with a fraudulent raising of the privilege because the GOP members of the committee he was testifying before allowed it and because he was testifying voluntarily—as opposed to under subpoena—and thus no one could force him to answer questions he didn't want to.
15/ Going forward, we'll see much more questioning under subpoena—that is, Bob Mueller subpoenaing witnesses to a grand jury—so fraudulent claims of attorney-client privilege won't be successful. But we can expect Trump will raise the privilege at every juncture he possibly can.
16/ Trump is most likely to be put in situations in which he can arguably raise attorney-client privilege when it comes to another Trump-Russia witness—White House counsel Don McGahn (Mueller almost certainly wouldn't ask Trump to discuss conversations with his personal lawyers).
17/ The problem for Trump here is that Don McGahn represents the Office of the President, not Trump personally, so only conversations between McGahn and Trump that arise in the context of presidential duties—as opposed to personal actions—are covered by attorney-client privilege.
18/ You may already see why this distinction is likely to lead to some legal battles: was Trump Obstructing Justice to protect himself from future impeachment and indictment a "presidential" or "personal" action? Trump will argue the former, while Mueller will argue the latter.
19/ Also, the privilege doesn't apply during impeachment proceedings, may be hampered by the fact McGahn may face legal liability in the Trump-Russia case, and is certainly hurt by Trump having had *personal* attorneys at all times who he could have conferred with confidentially.
20/ The most complicated privileges involved in the Trump-Russia case are "presidential communications privilege" and "deliberative process privilege." Both privileges are meant to protect the president's right to free and unfettered advice from, and discourse with, his advisors.
21/ Because the president is the privilege-holder, the president must proactively assert the privilege for it to apply. Because he wants to be able to say he's "cooperating" with the Trump-Russia investigation, Trump has yet to invoke either of these two privileges—not even once.
22/ In his desperate bid to avoid asserting the presidential communications privilege or the deliberative process privilege—because he knows doing either would look like (noncriminal) obstruction and thus consciousness of guilt—Trump is getting an (illegal) assist from his aides.
23/ That is, both Steve Bannon and Jeff Sessions refused to answer questions that might incriminate Trump for Obstruction of Justice—an impeachable offense—on the theory that Trump *could* assert presidential privileges, not because he *actually* has done so. And that's not okay.
24/ In Sessions' case, he knew he was improperly raising—variously—presidential communications privilege and/or deliberative process privilege, and was saved from being found in Contempt of Congress only by the fact that Democrats knew Republican committee members would block it.
25/ In Bannon's case, the White House tried to convince Bannon to improperly assert the privilege without making Trump do it, as they knew this illegal tactic would work—again owing to the anticipated complicity of GOP committee members. But today things *didn't* work as planned.
26/ When Bannon—falsely, and knowingly so—asserted the privilege, he was immediately served with a subpoena to provide the requested information. The White House response was to say that Congress needed to negotiate testimony with them. But they still didn't assert any privilege.
27/ Any observer of today's events with legal training would say the White House was attempting—today—to raise either or both of the presidential privileges we're now discussing without formally doing so. Instead, they made noise about "precedent" and cross-branch communications.
28/ Essentially, they're raising the specter of an assertion of privilege to force Congress to the table on the question of what Bannon (or other Trump aides) can or cannot say. This likely won't apply to grand jury proceedings, however, as Bannon's attorney won't be in the room.
29/ As the White House more or less knows—at least they do now—what Congress wants to ask Bannon, they can issue a preemptive (non-)assertion of privilege to shape his testimony, assuming Congress is pliable and doesn't challenge it in court. But Mueller is a black box to Trump.
30/ In a grand jury proceeding, Bannon might attempt to assert privilege on the president's behalf, but Mueller would simply "note" that assertion and order him to answer questions anyway—with any litigating over what (if anything at all) is or can be privileged coming later on.
31/ So with a grand jury subpoena (as opposed to an informal interview) Mueller has a compulsory process which will get him the information he wants no matter what, and leave until later any legal wrangling. Steve Bannon knows this, and it could send him to the negotiating table.
32/ But to be clear, the White House telling Bannon not to answer certain questions without Trump first asserting a privilege is improper and possibly illegal—and it cannot be explained away, as they tried to do today, by saying Congress should've negotiated with the White House.
33/ Okay, so what are these two privileges? I find the Brennan Center to be a good resource for summaries of the presidential communications privilege and the deliberative process privilege. So here's what the Brennan Center says about the first of these two important privileges:
34/ "The presidential communications privilege protects from disclosure any communications either by POTUS directly or by his immediate advisors in the Office of the President to POTUS. The Court grounded the privilege in the need for candor in executive branch decision-making."
35/ Here's the first thing you should immediately notice about the presidential communications privilege: it only protects *presidential* communications. Most of the key questions Mueller wants to ask Trump involve his conversations and activities before he became the president.
36/ That's why Steve Bannon was testing out, today, the argument that the presidential communications privilege should cover the presidential *transition period* and perhaps even the presidential campaign. He and the White House know there's a lot still to be litigated on this.
37/ I can't see any way for Bannon (and, later on, Trump) to win on their argument that the presidential communications privilege should cover the presidential campaign, but I don't know that the status of the presidential transition period in this regard has ever been litigated.
38/ That said, we should expect Bannon (i.e. Trump) to lose on *both* the presidential-campaign and transition-period arguments. The purpose of this privilege is to protect presidential communications, not pre-presidential communications. That said, we have a conservative SCOTUS.
39/ A running theme in Trump's attempts to stave off *any* questioning by Mueller—and make no mistake, Trump's actions and words suggest he has *no* intention of *ever* being questioned by Mueller—will be trying to take *every issue he can* to the Supreme Court. It delays things.
40/ But more than just causing delays—and therefore pushing the Trump-Russia probe closer to the mid-term elections, when Republicans will *really* lose their taste for it—Trump knows there are at least three justices on the Supreme Court who rule based on outcome, not precedent.
41/ So unless a good deal of information leaks into the public sphere indicating that Trump has committed crimes against America—i.e. not just Obstruction, but some sort of Conspiracy with a foreign power—I'd guess Trump already has three votes for almost any legal theory he has.
42/ CNN has reported that Rep. Schiff (Ranking Democrat on the House Intel Committee) knows what the White House said to Bannon to keep him from incriminating Trump and it was a "gag order breathtaking in its scope." That's no surprise, as Trump is guilty of at least Obstruction.
43/ But this "gag order breathtaking in its scope"—again, an illegally issued gag order, given that there was no formal assertion of any valid executive privilege—also explains why Mueller subpoenaed Bannon. Mueller will hold Bannon in Contempt if he refuses to answer questions.
44/ Just so, FIRE AND FURY (the Michael Wolff book) revealed that Bannon has boasted about having dirt on Kushner, and Kushner—given how Mueller has orchestrated his contacts with him—seems to be Mueller's next big target. So clearly Mueller wants the information that Bannon has.
45/ Understand too that the presidential communications privilege only covers advisors when they are acting in an *advisory capacity*. Was Trump receiving pretextual advice from Miller, Rosenstein, and Sessions about firing Comey—when he was going to do so over Russia—"advisory"?
46/ Likewise, we have to ask, which "advisors" does this cover? Ivanka Trump? Eric? Don? Sessions, if he discusses with Trump a case he's recused from? Is Hope Hicks an "advisor" per se—and when did she achieve that status? So technical questions like these will have to be asked.
47/ The third thing you must know about the presidential communications privilege is that *it isn't absolute*. A valid assertion of the privilege can be overcome by a showing of "need"—not the highest standard. If it's important evidence not otherwise available, it can be gotten.
48/ The sort of evidence Mueller and—if it chooses to take the issue to court—Congress are trying to get from Trump aides is extremely specific information that Trump can't credibly claim they can get from other means, and it's *clearly* central to the Trump-Russia investigation.
49/ Trump, via his lawyers, will of course argue the information is *not* central to the Trump-Russia investigation—for which proposition they'll misquote Rosenstein's letter appointing Mueller, like they always do—and concoct other means for Mueller getting the same information.
50/ (I hope it goes without saying that the "privilege" Bannon tried to assert today—"transition privilege"—isn't a privilege that exists and Bannon knows it. Again, his recalcitrance in speaking to Congress helps explain why Mueller subpoenaed him—and why Congress now has, too.)
51/ The "deliberative process privilege" is harder to understand than the presidential communications privilege, but fortunately it's far less likely to be applicable to the Trump-Russia probe (there's even a chance that the attorney-client privilege will come up more regularly).
52/ "The privilege protects executive branch officials' communications that are predecisional and a direct part of the deliberative process. Predecisional means it was generated before adoption of an agency policy, and deliberative means it reflects a consultative give-and-take."
53/ The (abbreviated) Brennan Center definition continues: "The underlying rationale for the privilege is that disclosure of deliberative communications will chill future communications, diminishing the effectiveness of executive decision-making and injuring the public interest."
54/ This privilege has been more frequently litigated, so its contours are less opaque. Any indication of government misconduct overcomes it, and as a privilege it's considered narrower than the presidential communications privilege and—because it's a common law privilege—weaker.
55/ But it's also the privilege most likely to be raised when Mueller or Congress want information about any documents or advice given to Trump—or statements made by Trump—while he was "deciding" (my air-quotes intentional) whether to fire Jim Comey over the Russia investigation.
56/ That said, the fact that what's being investigated is government misconduct—a clear exception to the privilege—helps Mueller and (if it acts to force production of testimony or documents from certain Trump aides) Congressional investigators.

This last point is actually key.
57/ What's key here is that there's a *chance* SCOTUS will hang its outcome-focused deliberations on its favorite bugbear: the idea that Congress, not the courts, should always be the actor of first resort (a view conservatives can comfortably hold because of GOP gerrymandering).
58/ So SCOTUS *could* rule on any assertion of privilege by saying that if Congress really wants something—which, keep in mind, it *doesn't*, at least not when it comes to the Republican majority and Trump-Russia issues—*it can get it*, and that's better than a judicial subpoena.
59/ This is one of many reasons Trump would love the Congressional investigations shut down even as he also—it may at first blush seem "paradoxically"—wants these investigations to be seen as the appropriate venue for investigating Russia issues rather than via a Special Counsel.
60/ Ultimately, I'd say this: Trump can delay the hell out of the Trump-Russia probe the moment he starts running to the courts on every issue—which he will—but at the end of the day, unless and until he's fired Mueller is going to get basically everything he wants (eventually).
61/ And I'd note, too, that Bob Mueller may well be able to refer indictments to the DOJ—which would then refer them to the House Judiciary Committee for possible impeachment proceedings—*without* relying on any of the evidence the president is successfully able to keep from him.
62/ And the delays may be helpful to the Democrats, who a) want Russia to be an active issue during the midterm elections (as, given its gravity, it certainly should be, by any measure) and b) want Mueller to make his DOJ referral (and the DOJ to the House) once they're in power.
63/ So—in summary—Trump aides are violating the law in their assertions of privilege, and are being encouraged to violate the law by the White House, but won't face repercussions from this lawless Congress because the GOP has decided rule of law isn't in effect under a GOP POTUS.
64/ Meanwhile, provided he isn't fired, Special Counsel Bob Mueller will almost certainly be able to overcome—because, unlike Congress, he will *try* to overcome—any obstacles Trump's attorneys try to put in his way in the form of specious assertions of his executive privileges.
65/ All this explains what I've always said: Trump will eventually move to fire Mueller either directly, by firing and replacing Rosenstein, or by eliminating the DOJ's Special Counsel regs. It can virtually be counted on at this point. So all hopes—as ever—are with Mueller. /end
PS/ Action-steps: Democrats *must* cry foul and move for Contempt at any false assertion of privilege; must move to protect Mueller via legislation; and must use the Bannon subpoena as a starting point for convincing the GOP to issue more subpoenas and fewer informal invitations.
PS2/ I want to reiterate that this is a "basic primer" on the topics it covers. Twitter makes some details, nuances, and exceptions impossible to explain properly—and as we get closer to each privilege actually being *invoked*, specialized experts on each topic will step forward.
PS3/ Legal experts tend to disagree on most things—including legal ethics and any issue that's not already settled law (and even some things that are settled)—so understand that you may get slightly different reads from other attorneys. But this basic primer will get you started.
PS4/ For instance, the issue arose today as to whether it's ethical for an attorney to represent both Priebus and Bannon when it's highly likely their legal interests will diverge—and that eventuality is foreseeable. My answer was absolutely not—some attorneys I respect said yes.
PS5/ In that case, opinions are colored by individual attorneys' ethical practices with respect to conflicts; I'd *never* do what Priebus/Bannon's lawyer is doing. In the Trump-Russia case, we've the additional complication of even attorneys' viewpoints being colored by politics.
NOTE/ This DAILY BEAST piece from late this evening is claiming that the Trump White House *officially* asserted executive privilege to stop Steve Bannon from testifying on certain topics. That's the first time I've seen that claim; I'll stay tuned to it.…
NOTE2/ Much in the story implies the invocation *was* informal—as there's no such thing as a "broad executive privilege for the purposes of Congressional inquiries" that lets Bannon refuse to answer "any questions about what happened during the transition and in the White House."
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