White House Reinforces Counsel’s Office As Subpoenas, Mueller Report Loom

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Kevin Daley Supreme Court correspondent
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The White House counsel’s office has hired 17 lawyers in recent weeks.

Pat Cipollone, the newly-installed White House counsel, is expanding his staff in view of the coming deluge of congressional subpoenas and special counsel Robert Mueller’s final report, according to The Washington Post.

“It’s almost as if he’s building a law firm within a government entity,” attorney Jay Sekulow told the Post. “You have very senior lawyers coalescing into a great team.”

The White House counsel does not advise or represent the president in his personal capacity. Rather, the office protects presidential prerogatives, troubleshoots on legal questions arising in the policy process and issues guidance on the scope of executive power.

President Donald Trump has retained Sekulow and Rudy Giuliani as his personal attorneys. Emmet Flood, who briefly served as acting White House counsel following Don McGahn’s departure, is coordinating the administration’s response to the Mueller inquiry. Flood is an expert on issues of presidential power and advised former President Bill Clinton during his impeachment trial.

Giuliani told WaPo that the White House may seek to suppress provisions of Mueller’s report protected by executive privilege, which shields sensitive information and the president’s private consultations with his advisers.

In particular, Trump’s lawyers may wish to claim privilege over the president’s discussions about former FBI Director James Comey’s dismissal, which the special counsel is reportedly investigating for possible obstruction of justice, as well as Mueller’s interviews with Trump aides. Those moves would assuredly draw vigorous objections from congressional Democrats, who could seek the privileged portions of the report through subpoenas or other mechanisms.

That conflict would migrate to the judiciary, where the Supreme Court may ultimately decide the matter. (RELATED: Judge Says Christian Baker Jack Phillips’ Lawsuit Against Civil Rights Officials Can Proceed)

A close historical analogue to such a dispute is the 1974 U.S. v. Nixon decision, in which President Richard Nixon refused to comply with a subpoena for the infamous “Nixon tapes” and related documents, prompting a legal battle culminating in a landmark Supreme Court decision.

President Richard Nixon bids farewell to the White House staff in 1974. (White House/AFP/Getty Images)

President Richard Nixon bids farewell to the White House staff in 1974. (White House/AFP/Getty Images)

Among other arguments, Nixon lawyers said that the president’s claim to executive privilege, a new principle which at that point had never been acknowledged by the high court, was absolute and could not be challenged.

The justices agreed that executive privilege existed and could be used legitimately in areas like national security and foreign affairs. However, the Court also found that the privilege did not extend as far as Nixon contended, so the justices ordered Nixon to comply with the subpoena. Thus, the Nixon decision is often cast as a victory for the presidency, but a defeat for President Nixon himself.

Unlike the Mueller probe, Watergate special prosecutor Leon Jaworski did not prepare a comprehensive report on the president’s conduct for congressional or public consumption. Rather, his office helped provide congressional investigators with evidence obtained through a grand jury. Jaworski then submitted a 55-page memo to the House Judiciary Committee to help Congress make sense of the evidence.

Jaworski’s so-called “road map” memo remains under seal, though scholars are currently attempting to secure its release.

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