“The scope of confidentiality interests being asserted by the executive branch is breathtaking,” said Andrew M. Wright, an expert on executive privilege who served as a congressional investigator and as a White House attorney in two Democratic administrations. As is “the lack of accommodation and compromise,” he added.
Members of the Senate intelligence committee sent a letter in mid-April to the CIA and other covert agencies asking them to share copies of all the materials they had provided to special counsel Robert Mueller’s team over the course of their 22-month investigation, according to sources familiar with the request. The requests were referred by the intelligence agencies to the Department of Justice, which has custody of all of the records gathered as part of the Mueller probe.
Though Mueller’s report does not discuss the classified intelligence gathered during the investigation, congressional investigators believe the team was given access to a range of materials that could include intercepts, secretive source interviews, and material shared by the spy agencies of other foreign governments.
More than three months later, the attorney general’s office has still not produced them. Sources told ABC News that Justice Department officials have argued that they are, for now, shielded by the same blanket privilege they initially asserted in response to a subpoena from the House Judiciary Committee for the entire trove of special counsel records.
Trump administration attorneys declined to comment on the matter, and the Department of Justice has not responded to questions. Experts said the response was part of a pattern.
A spokesman for the House Intelligence Committee said the DOJ did produce a subset of underlying documents related to the special counsel’s investigation to their members for review, “although it has failed in recent weeks, despite repeated requests, to produce key materials central to the Committee’s oversight work.”
The House committee said Justice Department lawyers did not invoke privilege with them when refusing the requests. “None would be warranted given the Committee's jurisdiction,” a committee spokesman said. “The Committee remains engaged with DOJ to ensure it complies fully and completely with the Committee's duly authorized subpoena.”
Experts have been monitoring the conflict between branches as it has escalated.
“The way the administration has been using executive privilege has been extraordinary,” said Steven Schwinn, a professor at the John Marshall Law School and a co-founder and co-editor of the Constitutional Law Prof Blog. “It’s a level of non-cooperation with Congress that has been striking. We’ve never seen it to this degree.”
Congress and the White House have been locked in a range of disputes over records and testimony that the administration has withheld – covering a variety of subjects that includes the president’s personal finances, his tax returns and the administration’s policy on the census. Just Wednesday, the Democratic-controlled House voted to hold Attorney General William Barr and Commerce Secretary Wilbur Ross in criminal contempt over their refusal to produce documents concerning the addition of a citizenship question to the census.
In May, the Trump administration invoked executive privilege for the first time in response to the request from Judiciary Committee Chairman Jerrold Nadler, a New York Democrat, for the un-redacted Mueller report and the entire trove of investigative documents.
“Faced with Chairman Nadler’s blatant abuse of power, and at the attorney general’s request, the president has no other option than to make a protective assertion of executive privilege,” then-White House press secretary Sarah Sanders said at the time.
House Speaker Nancy Pelosi said at the time that members of Congress were exercising their proper authority to review the Mueller material on behalf of their constituents.
“This is not about Congress or any committee of Congress,” Pelosi told ABC News at the time. “It’s about the American people and their right to know and their election that is at stake and that a foreign government intervened in our election and the president thinks it is a laughing matter.”
This latest stalemate – over sensitive materials gathered in connection with the 2016 elections -- has frustrated leaders on the intelligence committees, sources told ABC News. In part, that is because the committees have sweeping oversight powers when it comes to the secretive agencies. The National Security Act says “congressional intelligence committees [must] be kept fully and currently informed of all intelligence activities.”
The congressional committees have invoked such powers during a range of sensitive probes. Congress fought for and received intelligence documents during its investigation into the Iran-Contra affair during the late 1980s. And more recently, the senate prevailed during a review of allegations that the agencies engaged in torture during the interrogation of terror suspects. After a protracted fight, the senate received the documents and drafted its scathing report.
One Trump administration source familiar with the matter told ABC News that the stand-off is temporary – with the response to the intelligence committee on hold until the Department of Justice finishes releasing Mueller-related materials to the Judiciary Committee.
In early June, the DOJ and House Judiciary Committee reached an agreement allowing committee members access to some of the documents that underpinned Mueller's investigation of possible obstruction of justice by President Trump. Members and some committee staff were also allowed to see a less-redacted version of the full Mueller report, with the exception of grand jury material that was included.
The DOJ is in the midst of reviewing the special counsel documents, and under an agreement with the Judiciary Committee, has pledged to turn over documents they believe do not run afoul of their assertions of privilege.
As the review process for the House Judiciary Committee grinds forward, an administration official familiar with the effort said that may free up some of the documents in the subset of materials requested by the intelligence committees. But, the source said, the intelligence request will have to wait until the negotiations with Judiciary are resolved.
Congressional sources told ABC News they believe Justice Department officials have no grounds to hold the intelligence records, and are merely stalling.
Experts said the stand-offs between branches of government may ultimately force the third branch of government – the judiciary – to get involved.
“A lot of it is going to get resolved in court,” said Wright, the expert on executive privilege who served in two Democratic administrations. “But some may only get resolved at the ballot box.”
This story has been updated to reflect the addition of a statement from the House Intelligence Committee saying that the Department of Justice did not invoke executive privilege in denying material to their members. The committee spokesman said there are materials that the Department still has not shared.