Sure, there have been a few nasty tweets, and maybe an over-caffeinated interview or two. But ever since Special Counsel Robert Mueller began investigating the Kremlin’s interference in the U.S. election, Trump World has basically played nice. The White House and the Trump campaign forked over reams of documents. A host of top figures, including senior White House staff, lined up to interview with the Special Counsel—including former White House Counsel Don McGahn, who sat with Mueller’s team multiple times. Even the president himself answered written questions (though it appears Mueller still wants more).
Now, Mueller’s team is writing a report detailing its findings, which will go to the attorney general, who will decide whether or not to give it to Congress. At that point, the Trump administration’s conflict with Mueller could burst the bounds of Twitter and show up in court.
A person familiar with the president’s legal team’s thinking told The Daily Beast that Trump’s lawyers expect a complex, multi-faceted process to ensue after Mueller’s team drops its report—potentially involving a legal battle over executive privilege.
This depends on what’s in the report, of course. Rudy Giuliani, the face of Trump’s personal legal team, told The Daily Beast he couldn’t speculate about any potential fights until he sees the report.
“If the report doesn’t deal with sensitive, privileged material, then we probably will have no objection,” he said. “But we can’t know that until we see it, and we can’t know if we’re going to agree to all of it, some of it—there’s no way to know that in the abstract.”
“Maybe there will be no problem,” he said. “Maybe there will be selective problems.”
Selective problems could cause huge fights.
Deputy Attorney General Rod Rosenstein named Mueller as Special Counsel on May 17, 2017. The appointment came just days after Trump fired FBI Director James Comey—a move Trump later said was informed by Comey’s supervision of an FBI counterintelligence investigation into Russian meddling in the 2016 presidential race. In the 19 months since Mueller took over that probe as part of his work as Special Counsel, he has been examining whether Trump obstructed justice, including in his firing of Comey.
The White House was surprisingly cooperative with him in that pursuit. Ty Cobb—then helming the White House’s response to Mueller’s team—decided to let senior White House staffers answer the Special Counsel team’s questions. Cobb and others argued that the president’s executive privilege remained intact despite this, as Mueller’s team is part of the government’s executive branch. If the information White House staffers gave Mueller about their conversations with the president were to leave the executive branch, however, and be shared with Congress, it would violate the president’s executive privilege—at least, that’s what Rudy Giuliani and a host of conservative lawyers have long argued.
This is where things could get messy. Mueller’s report could discuss the question of whether Trump obstructed justice, according to a Washington Post report from April. Any findings on that subject would likely involve testimony by White House officials who heard the president discuss his decision to fire Comey, as well as any efforts to pressure people close to the probe. According to Giuliani, the president has the power to claim executive privilege and bar Mueller from sharing that testimony with anyone outside the executive branch. After all, the regulations governing the Special Counsel only allow him to give his report to the attorney general. The attorney general can then decide whether or not to turn over the report to Congress.
And that’s the million-dollar question, one Trump’s lawyers are bracing for: What happens if the report includes damaging statements from White House staffers about their conversations with the president?