The Trump administration is making a sweeping claim of executive privilege on a topic of interest to the Senate this week, and it has nothing to do with the impeachment trial.
And the White House is angering at least one Republican senator in the process.
The Justice Department’s Office of Legal Counsel has issued an opinion stating that the statutorily required release of a report on national security concerns related to foreign automobiles can be blocked from release due to executive privilege. The most recent appropriations law includes a provision in the fiscal 2020 Commerce-Justice-Science spending package that required public release from the Commerce Department no later than Jan. 19.
The Commerce Department has produced a report on the national security effects of imported cars, which could include recommendations to President Donald Trump for imposing tariffs under Section 232 of the Trade Expansion Act of 1962. Lawmakers have long prepared for the report and possible tariffs on imported car parts and foreign cars (many of which are actually assembled at least partly in the United States), but its release has been stalled.
But Assistant Attorney General Steven Engel wrote in a memo dated Friday that the president did not have to follow the intent of Congress.
“We conclude that the Executive Branch may rely on the constitutional doctrine of executive privilege to decline to release the report at the deadline. The report is a confidential presidential communication, the disclosure of which would risk impairing ongoing diplomatic efforts to address a national-security concern,” the memo said. “Disclosure would also risk interfering with executive branch deliberations over what additional actions, if any, may be necessary to address the threat.”
Sen. Patrick J. Toomey, a Pennsylvania Republican who has been among the most outspoken lawmakers against the potential national security tariffs, disputes the administration’s contention.
“By refusing to make public the statutorily-required report on automobile tariffs, the Department of Commerce is willfully violating federal law,” Toomey said in a statement. “This is unacceptable, and my staff and I are evaluating the potential for corrective action to compel the rightful release of this report.”
The president may be relying on Toomey to support his procedural claims in the impeachment trial, but there are no signs of agreement when it comes to the upcoming legal tussle about the trade report.
Other Republican senators have expressed past concerns about Trump using the national security tariff authority, including Finance Chairman Charles E. Grassley of Iowa.
The OLC memo concedes that the Congress may have an interest in seeing the report released eventually, but Engel writes that the specific deadline could interfere in the responsibilities of the executive branch.
“[T]he report falls within the scope of executive privilege and its disclosure would risk impairing ongoing diplomatic efforts to address a national-security threat and would risk interfering with executive branch deliberations over what additional actions, if any, may be necessary to address the threat,” the OLC opinion said.
Trump, who is attending meetings at the World Economic Forum in Davos, Switzerland, told reporters Tuesday that tariffs on European automobiles remained on the table.
“We expect to be able to make a deal with Europe. And if they don’t make a deal, we’ll certainly give that very strong consideration,” Trump said. “OK? But we expect to make a deal with Europe.”
The president made the remarks after he had already met with European Commission President Ursula von der Leyen.
“The European Union we met with, as you know, and we had a very good talk. But if we’re unable to make a deal, we will have to do something, because we’ve been treated very badly as a country for many, many years on trade,” the president said.
Commerce Secretary Wilbur Ross originally initiated the review in May 2018, one day after Trump had asked him to consider investigating the effect of foreign vehicles on national security.