As theories go, this is certainly one of them. Was today’s assertion of executive privilege by Donald Trump a strategy to prevent Robert Mueller from appearing before House Judiciary Committee? Chair Jerrold Nadler thinks Trump “will try to stop Robert Mueller,” and says that Trump has “broken the law six ways from Sunday.”
“Robert Mueller doesn’t think the president broke the law ‘six ways from Sunday’,”Alisyn Camerota responded skeptically — and accurately:
House Judiciary Chairman @RepJerryNadler says he is now “less confident” that special counsel Robert Mueller will testify before his committee this month.
— New Day (@NewDay) May 8, 2019
Needless to say, Nadler’s “six ways from Sunday” comment is entirely disingenuous. Mueller devoted his first volume to asserting conclusively that no evidence existed of collusion between Trump’s campaign and the Russians. Volume II may have been more ambiguous, but that is precisely because Mueller found no overt criminal action by Trump on obstruction, either. The question wasn’t whether Trump violated the law, but whether actions taken completely within his authority were done with actionably corrupt intent, a point on which Mueller eventually punted. Camerota’s skeptical response is entirely justified; Nadler’s engaging in sheer demagoguery on that point.
He is on Mueller’s appearance, too. The Department of Justice, which requested the executive privilege claim, quickly noted that it has “no direct bearing” on Mueller’s appearance before Congress:
Today’s assertion of protective executive privilege over subpoenaed documents has no direct bearing on Special Counsel Robert Mueller testifying before the House, according to a DOJ official, per @LauraAJarrett
— Manu Raju (@mkraju) May 8, 2019
The idea that executive privilege bears on Mueller himself is puzzling, to say the least. Today’s claim applies to the redacted portions of Mueller’s report and all underlying documents, not to Mueller. (Worth noting: it’s also likely overbroad and ripe for a court to pare it back at some point.) The rest of Mueller’s report, including its conclusions and the near-entireties of Mueller’s summaries, are public. Mueller can testify on those issues without fear of crossing the privilege line. As soon as Mueller’s status as special counsel officially ends, the DoJ and the White House will have no say at all on whether Mueller appears, and even now probably have very little control over that question.
Executive privilege does have some bearing on what Mueller can say, but even that assumes that Mueller was inclined to reveal the redactions at all. Nothing seems further from Mueller’s track record as an institutionalist within the DoJ. In fact, Mueller’s likely going to disappoint Democrats regardless of whether the White House interferes with his appearance or not. The report is Mueller’s testimony, and based on his track record, he’s very unlikely to be enthusiastic about extending himself further into a political fight.
Nadler’s doing nothing more here than chumming the waters. Although, it’s possible that his demagoguery might have an unintended consequence — it might make Mueller a lot less willing to join the circus at a House Judiciary hearing.