Over the course of the impeachment process, Trump supporters have argued that the White House is protected from responding to congressional subpoenas by executive privilege. The argument goes that, even if the president has nothing to hide by submitting the evidence subpoenaed by Congress, he is defending the executive’s constitutional independence from Congress.
As one commenter responded on my article from Friday, “He is defending the use of executive privilege by the executive branch so as not to place all the communications of the executive branch under the control of a random radical faction of the House that either party could exploit. There are legal and separation of powers issues at play that are bigger than Trump but the Never Trumpers can't see past their disdain for the man so they assume the worst motivations to explain everything he does.”
If that’s the case, he’s doing it wrong.
Many Trump supporters have accused me of being against executive privilege, arguing that if you aren’t for the absolute immunity claimed by the Trump Administration then you must be against any executive privilege at all. This is a logical fallacy. There is quite a lot of middle ground between unlimited congressional oversight and unlimited executive privilege. Since we live in a constitutional republic, we should ask what the Constitution and judicial precedent say about the issue.
Executive privilege isn’t specifically mentioned in the Constitution but its history in the United States goes all the way back to George Washington. One of the earliest incidents in our history that relate to the issue was in 1796 when, as legal historian Michael Dorf wrote, “President Washington refused to comply with a request by the House of Representatives for documents relating to the negotiation of the then-recently adopted Jay Treaty with England. The Senate alone plays a role in the ratification of treaties, Washington reasoned, and therefore the House had no legitimate claim to the material. Accordingly, Washington provided the documents to the Senate but not the House.”
The first court case involving executive privilege dates back to 1807 when Aaron Burr was being tried for treason. Burr’s counsel subpoenaed a letter from Thomas Jefferson, who was president at the time. Presidential claimed, as Trump’s lawyers do today, that the president was exempt from subpoenas requesting specific documents. Chief Justice John Marshall shot down this argument, ruling that presidents are not immune to subpoenas and that even national security was not grounds for refusal to comply. If documents were too sensitive to be made public, Marshall ruled, the court could keep them confidential.
In 1974, the Supreme Court ruled again on executive privilege in United States v. Nixon. As with Trump, Nixon’s articles of impeachment, which were approved by House committee but never reached a full vote, also cited obstruction alleging that the president “failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives….” The Supreme Court never had the chance to rule on that specific question due to Nixon’s resignation, but it did rule on his claim of executive privilege in withholding audiotapes and written records from the grand jury convened by the Watergate special prosecutor.
In the decision, the Court agreed to “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties," saying, "human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process."
Nevertheless, the Supreme Court ruled against Nixon, holding, as Dorf explains, that “the executive privilege is not absolute. Where the President asserts only a generalized need for confidentiality, the privilege must yield to the interests of the government and defendants in a criminal prosecution.” Nixon released the tapes and resigned amid the furor five days later.
President Clinton also attempted to use executive privilege to shield himself from being called to testify in the Monica Lewinsky investigation. A federal judge ruled in 1998 that executive privilege did not shield the president or his aides from subpoenas, although some of the testimony and evidence could be shielded from public view. Clinton ultimately testified under oath in a videotaped deposition.
In another blow to Donald Trump’s executive privilege claims, Dorf notes that “no case to this point holds that executive privilege applies to conversations between Executive officials and persons outside the government.” Therefore, Trump’s communications with Rudy Giuliani, Lev Parnas, and others would not be covered by executive privilege claims.
Since Giuliani was Trump’s personal attorney, the president could attempt to claim attorney-client privilege, but there are limits here as well. Exceptions to attorney-client privilege include conspiring to commit crimes or acts of fraud. Since Lev Parnas and three other Giuliani associates were indicted for the criminal acts of violating campaign finance laws and advancing “the political interests of at least one foreign official – a Ukrainian government official who sought the dismissal of the US ambassador to Ukraine” while Giuliani was on a shadow diplomacy mission for the president in Ukraine, Trump’s claim of attorney-client privilege may be on shaky ground as well. Although currently unindicted, Giuliani is reportedly under investigation by the US Attorney for the Southern District of New York for campaign finance and lobbying violations.
If the president wanted to fight the congressional subpoenas, he was within his rights to do so even though he would probably lose. Unfortunately, rather than fighting the subpoenas, he chose to instruct his subordinates to ignore them. Subpoenas can be fought but are ignored at the witness’s peril. Legally, the way to fight a subpoena is to file a motion to quash it, i.e. to ask a judge to remove it. That is not what the Trump Administration did. In fact, the White House started ignoring subpoenas back in April 2019, well before the impeachment began.
When the Administration ordered its staffers to ignore legal and constitutional congressional subpoenas, it became a criminal matter of obstruction. For those who have requested a law that Trump broke (even though criminal activity is not required for impeachment under the original meaning of “high crimes and misdemeanors”), the Congressional Research Service cited 18 U.S.C. 1505 in its 2010 report on “Obstruction of Congress.” The statute applies to “any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress.” Additionally, 18 U.S.C. 1512 also prohibits witness tampering. Under its statutory power to punish contempt, Congress has the authority to levy fines and even imprison witnesses who ignore subpoenas.
An additional argument made by Trump supporters is that House Democrats should have pursued the legal case to compel the Administration to produce witnesses and evidence. While I do agree that this would have been a smart move politically, no law or congressional guideline mandates that Congress must sue the president in an attempt to force him to do his duty before impeaching him. While the Democrats could have gone through the courts and bolstered the already strong case against Donald Trump, the proceedings were not rendered illegitimate by their decision not to do so.
Historical precedent tells us that executive privilege exists but that it cannot be used as a shield to misconduct in the Oval Office. Executive privilege is not an absolute right to ignore Congress and get out of jail free. While ignoring the subpoenas may have temporarily protected the president from embarrassing revelations about his abuses of power, his obstruction actually sped up his impeachment process in the end. Now the embarrassing information about his Ukrainian activities is coming out anyway in a slow drip that may continue through the election.
While the president is not going to be removed from office, it looks as though defying Congress turned out to be a lose-lose proposition. Once again, the maxim that that best way to handle a scandal is to get out in front of it rather than engaging in a coverup seems to be correct.
Originally published on The Resurgent
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