The Justice Department’s sweeping effort to block congressional access to the Mueller report could complicate Democrats’ efforts to bring special counsel Robert Mueller in as a witness, a top Democrat told POLITICO on Wednesday.
Noting that Mueller is still an employee of the Justice Department, House Judiciary Committee Chairman Jerry Nadler said a likely claim of executive privilege — which the Justice Department threatened to pursue late Tuesday — could succeed in delaying the House’s efforts to access Mueller’s report and hear his testimony.
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“It could while he’s still an employee of the Department. But that’s only for a couple weeks,” Nadler said.
Nadler said he hasn’t received a definitive assurance about when Mueller intends to leave the Justice Department but that “by all accounts it’s very short.” He indicated that he’s banking on Mueller’s departure to ease his path to testifying to the Judiciary Committee.
It’s unclear whether that could set back the committee’s efforts to call Mueller on May 15, a tentative date that House Democrats have eyed. But there’s no indication Mueller has consented to testifying or that he’s operating on the committee’s tentative schedule.
In a CNN interview Wednesday morning, Nadler indicated he was worried that Trump would seek to block Mueller from testifying altogether, given the president’s tweet over the weekend saying Mueller should not testify.
“I think the president will try to stop Robert Mueller [from testifying] — whether he will succeed is another question,” Nadler said, adding he’s “less confident” than he was before that Mueller will testify.
The Justice Department indicated that Attorney General William Barr would press Trump to make a “protective” claim of executive privilege over the entire contents of Mueller’s report and his underlying evidence, a reaction to Nadler’s plan to hold Barr in contempt for defying a congressional subpoena to produce the report and evidence to Congress.
Nadler said the privilege claim could succeed as a delay tactic, even if it was certain to fail on the merits.
“I don’t know about the speed. That’s the big question. We’ll ask for all kinds of expedition and so forth and see what the court does,” Nadler said. “On the merits, there’s no question.”
Nadler said that any claim of executive privilege evaporated the moment the White House shared material with Mueller’s team during his 22-month investigation into links between the Trump campaign and Russia.
“The moment they revealed it to Mueller, they waived the privilege. Period. That’s black letter law,” Nadler said.
The Justice Department has argued that Nadler’s effort to compel production of the report would require Barr to break laws protecting the secrecy of grand jury evidence that Mueller gathered. The DOJ also said that Democrats have rushed to take punitive action against the Justice Department without good faith negotiations.
The escalation followed a day of negotiating between Nadler’s office and Justice Department officials. Democrats asked that all members of the Judiciary and Intelligence committees be granted access to a minimally redacted version of Mueller’s report, an increase from the 12 senior lawmakers currently allowed to view it.
But the Justice Department balked at the request, calling it “unreasonable” and suggesting such broad access for lawmakers could risk the disclosure of protected information.
Andrew Desiderio contributed reporting.