The GOP-led Senate Intelligence Committee accused the White House of taking an approach to the committee’s Russia investigation that showed a “potential for abuse of executive privilege, particularly as it relates to impeding a Congressional inquiry.”
The committee, in its Russia report released Tuesday, described behavior by the White House and by President Trump’s and his allies’ personal lawyers that echoed the tactics employed during the more recent impeachment investigation into the President.
Notably, none of the Republicans who signed on to the report voted in favor of the House’s impeachment charge of congressional obstruction.
Yet, the frustration and the disdain expressed in the bipartisan report was striking, considering that it was coming from a legislative body that has been reluctant to challenge the President.
The committee faced a “multitude of novel and unprecedented potential” privilege claims from the White House Counsel, the report said. Lawmakers had to pour considerable effort into figuring out the scope of a supposed “Joint Defense Agreement” that apparently involved Trump’s personal lawyers, several White House aides and former officials on the campaign. And when the President’s own son tried to duck a subpoena the committee issued for his testimony, only the threat of a contempt measure seemed to convince him to cooperate.
A So-Called ‘Transition Privilege’
Midway through the committee’s investigation, the White House and its allies introduced a novel idea into their engagements with the committee: The report described it as a “claimed Transition Privilege” that allowed for documents and testimony related to the presidential transition to be withheld.
The committee’s report was steadfast that it believed this concept to be bogus and that executive privilege started only when a President actually took office. The panel noted that it had expected executive privilege to come up in its interactions with Obama administration witnesses, but, “in practice” those officials “freely shared their conversations” with President Obama — a topic that could have legitimately fit under an executive privilege claim.
“The Committee did not anticipate,” the arguments the Trump White House would be making about his ability to assert executive privilege over things that happened in the transition. This argument “surprised” the committee, as it was deployed “inconsistently,” and the White House used it to intervene in a way that “significantly hampered” the investigation.
In the early months of the investigation, the committee was not aware of these headwinds, particularly as certain White House officials who testified in 2017 did not bring up the potential for that privilege when asked about the transition.
Around March 2018, the committee began receiving responses to requests for documents and testimony from witnesses that claimed “potential assertions” of executive privilege during the transition. When the committee sought a legal justification of this concept, the White House could point only to a letter that White House Counsel Don McGahn wrote to House Intelligence Chairman Devin Nunes the month prior, which included a legal argument about the Presidential Transition Act that clearly did not impress the senators.
“This argument contorts the PTA and common understandings of executive privilege, and the Committee could identify no additional basis to support it,” the report said. “The argument was particularly suspect as applied to an apparent foreign policy operation run by Transition officials who can claim no Constitutional authority to be conducting American diplomacy. To date, the only court to address the existence of a Transition privilege has rejected it.”
By February 2019, the committee realized that documents it had sought from the transition were being withheld under this rationale and subjected to a White House review that normally took four additional months.
“As a result, the White House had a chance to review and control the information responsive to· Committee requests before the Committee did, even though the Committee was seeking information from private citizens who could not themselves assert the privilege, and who were free to disregard the White House’s directive,” the report said.
When interviewing witnesses, this claim also proved to be a hurdle, because witnesses would decline to answer transition-related questions before checking with the White House first.
For “strategic” reasons related to time constraints and other considerations, the committee decided not to challenge the White House’s approach in court. It worked instead through an accommodations process to get the information it was seeking.
But to highlight the “specious” nature of the White House’s approach to executive privilege, the report discussed at length one of the nearly 100 transition documents that had been withheld and subjected to this White House filter process.
As part of the accommodations process, the White House described the document — which had been sought from a transition staffer — to the committee in broad terms, which helped the lawmakers realize that they had already obtained it from another witness.
Incredibly, the document was a memo on Russia that had been prepared by a businessman who was not on the transition team or a part of the campaign. Furthermore, “a substantial part” of the memo had been adapted from another memo that originated from an “associate of a Kremlin insider,” according to the committee’s investigation.
In no way could such a document be covered under executive privilege, the committee argued, and once it told the White House it was aware of these general facts, the White House dropped the privilege claim.
A Mystery JDA
Another major roadblock the lawmakers ran into was the existence of a supposed Joint Defense Agreement among several of their witnesses. It arose after Michael Cohen in 2019 told them that his 2017 written testimony had been circulated among the lawyers of other witnesses, who offered changes. The revelation was of significant interest to the committee because the 2017 testimony contained false information that multiple witnesses in the investigation could have known was false.
But as they probed who was involved in vetting Cohen’s testimony, evidence emerged that potentially relevant communications were being withheld as privileged under a purported Joint Defense Agreement. JDAs are meant to be used very narrowly, the report noted, and its privileges should only apply for coordinating a shared legal strategy, not for when various parties are just sharing information.
Frustratingly, witnesses’ lawyers insisted to the committee that even questions about whether their clients were involved in the JDA were covered under the privilege it supposedly bestowed. Several witnesses also seemed to be in the dark about whether their lawyers had them participating in the JDA, which, the report noted, cuts against court guidance for JDA use.
The committee decided not to dive deeper into whether this supposed JDA amounted to obstruction, because of the time and resources the likely litigation around the JDA would have cost. But the committee did look into the matter enough to come to the belief that the JDA’s members included: Donald Trump, Donald Trump Jr.; the Trump Organization, Jared Kushner, Ivanka Trump, Paul Manafort, the Trump Campaign, Keith Schiller, Hope Hicks, Michael Flynn, and Felix Sater.
‘Pre-Pardons’ and Contempt Threats
The report pointed to other moves by members of President Trump’s inner circle that may have been obstructive.
During their look at the misleading nature of Cohen’s 2017 testimony, Cohen told the lawmakers that he received a message from President Trump’s personal lawyer Jay Sekulow the day after he delivered it.
In Cohen’s account, Sekulow told him that Trump “heard that you did great, and don’t worry, everything’s going to be fine. He loves ya,” the report said.
“Cohen also testified that after his initial interview, Sekulow mentioned ‘pardons’ or ‘pre-pardons’ for Cohen,” the report said.
Cohen was one of five witnesses who participated in follow-up interviews, and of them, only Cohen and Donald Trump Jr. required subpoenas in order to show up for a second day of testimony
“Cohen appeared pursuant to the subpoena,” the report said. “Trump Jr. did not initially appear in response to the subpoena, but later changed his position and appeared when it became clear that the Committee was considering a contempt resolution.”