As we read the Mueller report, let’s all bear in mind that the only reason Volume II — the portion that explores the possible obstruction of justice — would not exist if the president had not waived executive privilege.
The privilege permits the president to stop Congress and others from demanding to see confidential communications between the chief executive and members of his cabinet and staff.
Executive privilege exists precisely to keep from public view conversations, memos and instructions from the president to his aides — exactly like those cited in the Mueller report. It draws a bright line between thought and action, ideas and deeds, speculation and acts.
The privilege prevents the world from seeing the inner thinking of the president.
When and if those thoughts percolate into actions, they can be investigated. But until or unless they do, they are to remain private musings and speculation which anyone should be able to keep from public scrutiny. To do otherwise is like letting Congress or a prosecutor subpoena one’s dreams.
Think of a chess player who makes a move but does not lift his hand from his piece signifying that he has decided to make the move. Executive privilege is the equivalent to letting the president pull back his piece and not make the move.
None of the conversations cited by Mueller — and pounded with partisan malice by the Democrats — ever resulted in any executive action.
White House Counsel Don McGahn did not, in fact, call Deputy Attorney General Rod Rosenstein to order that he fire Mueller. And Trump’s order that he do so should not have emerged into public view if executive privilege had been respected.
Executive privilege was a doctrine first articulated by President George Washington in 1796 when, according to Cornell Law professor Michael Dorf, “he refused to comply with a request by the House of Representatives for documents related to the negotiation of the then-recently adopted Jay Treaty with the Kingdom of Great Britain.”
President Thomas Jefferson also asserted the privilege when Vice President Aaron Burr sought to compel him to testify and provide his private letters about the treason charges against Burr.
President Richard Nixon famously sought to hide behind executive privilege to stop the release of the audiotapes he had made of conversations with aides in the Oval Office. The Supreme Court upheld executive privilege, in general, but said that it could be overcome by a compelling need to determine the facts in a criminal prosecution.
In any event, Trump did not seek to conceal his private conversations behind the wall of executive privilege and granted Mueller full access to all his aides and his staff.
As a result, the raw conversations are published in the Mueller report and provide fodder for the Democrats.
But let us remember two things: 1. Nothing happened. There was no collusion and no obstruction.
2. None of this would be an issue except for Trump’s extraordinary action in letting Mueller have any evidence he wanted.
Obstruction? We have an investigation into a crime that never happened and into efforts to obstruct that investigation that did not take place.
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