Trump’s justice department has found a new way for presidents to avoid accountability | Claire Finkelstein

A recent memo claiming executive privilege over communications with private advisers invites corruption

A recent office of legal counsel memo on executive privilege maintains that private advisers to a president can avoid responding to a subpoena by asserting the president’s executive privilege. The ability of presidents to shield communications from public view through claims of executive privilege, whether their own or those of a senior adviser, was already a powerful tool for presidents to avoid accountability. But if courts accept the OLC’s new interpretation of presidential privilege, it will be substantially harder to call witnesses to testify before Congress or in court proceedings regarding possible wrongdoing by the presidents.

Equipping presidents with extensive power to block witnesses in legal proceedings is a dangerous practice that invites corruption by presidents and their advisers. Consider the former White House counsel Don McGahn’s 2019 refusal to testify in response to a subpoena by the House judiciary committee in connection with the special counsel Robert Mueller’s investigation into Donald Trump. McGahn didn’t come up with that idea on his own. It was the Trump White House that sought to bar McGahn from testifying through an assertion of a type of executive privilege known as “testimonial immunity.” Ironically, Mueller was investigating whether Trump obstructed justice, among other things, by demanding that McGahn fire Mueller himself. Trump’s insistence that McGahn not testify, backed up by a 2019 OLC opinion , effectively made the first Trump administration complicit in the very obstruction under investigation.

The then federal district court judge Ketanji Brown Jackson ended up rejecting the claim of privilege and ordered McGahn to testify. After the Trump administration appealed and judicial decisions flipped back and forth, the parties finally reached a settlement permitting McGahn to testify behind closed doors. But it was too little too late for Congress. The case reminds us that assertions of privilege by presidential advisers are not legally well-established, but such assertions are unfortunately sufficient to throw sand in the gears and immobilize a congressional investigation.

Other presidents have invoked claims of privilege regularly, but more often than not they are rejected by courts. Bill Clinton, for example, invoked it numerous times unsuccessfully to try to avoid responding to questions from the special prosecutor Kenneth Starr as well as to avoid testifying in a lawsuit brought by Paula Jones. The court found he had no immunity against a subpoena requiring him to appear at a deposition.

Richard Nixon tried to invoke it to avoid having to turn over the infamous White House tapes, but the supreme court ruled he had to turn them over anyway. Even Thomas Jefferson and George Washington tried to invoke it in one form or another. But where courts have ruled, such claims do not usually prevail.

OLC’s latest memo goes far beyond even the 2019 memo written to bolster the White House’s block on McGahn.