Justice Dept. Releases Legal Opinions That Could Bolster Trump’s Claim of Executive Privilege

Justice Dept. Releases Legal Opinions That Could Bolster Trump’s Claim of Executive Privilege

WASHINGTON — The Justice Department has released several internal legal opinions that could help bolster President Trump’s claim of executive privilege in barring Congress from interviewing witnesses and collecting documents from the executive branch.

The legal opinions were written during previous Democratic and Republican administrations by the Justice Department’s Office of Legal Counsel, which provides legal opinions for the executive branch. Some of them had not been made public until they were posted to the department’s website on Thursday.

CNN first reported the publication of the opinions.

The department cited the opinions in a recent case before Federal District Court involving the former White House counsel Donald F. McGahn II, whom the administration had said was “absolutely immune” from complying with a congressional subpoena issued in the House impeachment investigation.

Judge Ketanji Brown Jackson of the United States District Court for the District of Columbia ruled last month that Mr. McGahn must testify before House investigators about whether Mr. Trump tried to obstruct the Russia inquiry. Judge Jackson said in her 120-page decision that the administration’s arguments to the contrary were “fiction.”

The Justice Department appealed the ruling.

In its defense of Mr. McGahn, the department cited Office of Legal Counsel opinions written during the Reagan, Bush, Clinton and Obama administrations that say that presidents can exert privilege to keep executive branch communications private.

The Office of Legal Counsel, which is overseen by Steven A. Engel, made the opinions public after the House requested them as part of its lawsuit against Mr. McGahn, according to a Justice Department official who spoke on the condition of anonymity to openly discuss that decision-making process.

Among the opinions cited in the McGahn case was one titled, “History of Refusals by Executive Branch Officials to Provide Information Demanded by Congress,” written by Theodore B. Olson, who ran the Office of Legal Counsel during the Reagan administration and is now a partner at Gibson Dunn.

Credit…U.S. Justice Department

“The memorandum seeks to show that presidentially mandated refusals to disclose information to Congress — though infrequent — are by no means unprecedented acts of this or any other administration,” he wrote.

The memo listed examples of presidents refusing congressional requests for information or other forms of cooperation dating to the 1700s, and having those claims upheld. More recently, Mr. Olson noted that President John F. Kennedy directed the defense secretary and all personnel under him to not give the Senate any testimony or documents that would reveal the names of aides who had made or recommended changes in specific speeches.

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