In a Memorandum Opinion for the Deputy Counsel to President Donald Trump, the Department of Justice’s Office of Legal Counsel (DOJ) determined that “the President may direct the Secretary of Commerce not to publish a confidential report to the President under Section 232 of the Trade Expansion Act of 1962, notwithstanding a recently enacted statute requiring publication within 30 days, because the 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.”

This opinion is the result of President Trump’s self-initiation of a Section 232 national security investigation in May 2018 to determine the effects on the national security of imports of automobiles – including cars, SUVs, vans and light trucks – and automotive parts. See Thompson Hine International Trade Update of June 1, 2018. At the time of its initiation, many members of Congress argued against the investigation because other Trump administration Section 232 actions had been economically disruptive and were damaging U.S. relationships with its allies, including Mexico, Canada, Japan, the EU and India. A bipartisan Senate group, with the support of numerous trade associations, introduced legislation to require the president to secure approval from Congress before taking action under Section 232. See Trump and Trade Update of February 1, 2019. While this legislation did not proceed beyond the Senate committees with jurisdiction over it, the most recent appropriations bill passed and signed into law in December 2019 required the Department of Commerce to release a public version of the Section 232 report no later than January 19, 2020. That date passed without its release, and it was later learned that Commerce Secretary Wilbur Ross relied on the DOJ Memorandum Opinion as grounds for refusing to issue the report.

The DOJ opinion concludes that the Trump administration can “rely on the constitutional doctrine of executive privilege to decline to release the report at the deadline”, arguing that it “is a quintessential privileged presidential communication—a report from a Cabinet Secretary to the President advising him of the officer’s opinions and recommending decisions by the President.” Since it is a confidential presidential communication, the opinion finds that the disclosure of even a public version of the report “would risk impairing ongoing diplomatic efforts to address a national-security concern.” The opinion states that disclosure would “risk interfering with executive branch deliberations over what additional actions, if any, may be necessary to address the threat.”

The DOJ opinion acknowledges that Congress may have “a legitimate interest in ultimately reviewing the report to understand the basis for the President’s exercise of his section 232 authority” but argues that “it is hard to see how Congress’s legislative interest would be significantly advanced by mandating disclosure of the report now, as opposed to after the conclusion of international negotiations and the President’s decision-making process.” Nevertheless, the opinion notes that this conclusion does not mean that the report should remain confidential forever.

Senators from both parties expressed frustration and disappointment with the Commerce’s refusal to release the report. Senator Pat Toomey (Republican – Pennsylvania) released a statement, noting that “[b]y refusing to make public the statutorily-required report on automobile tariffs, the Department of Commerce is willfully violating federal law.”