by Nomad
Trump's decision to use executive privilege to defy Congress is a last ditch effort to escape accountability. If history is any guide, it is unlikely to succeed.
Contempt
This week, Attorney General William Barr joined the list of Trump administration officials who have thumbed their noses at Congress by threatening to stonewall House committee oversight.After a disastrous testimony before Congress, the House Judiciary Committee threatened to hold Barr in contempt for refusing to comply with a subpoena for special counsel Robert Mueller’s unredacted report. Said Rep. Jerry Nadler (D-N.Y.), the chairman of the committee.
“Yes, we will continue to negotiate for access to the full report. And yes, we will have no choice but to move quickly to hold the attorney general in contempt if he stalls or fails to negotiate in good faith."
Good faith was clearly in short supply.
Presumably, by order of the president, Barr issued a threat to evoke the right of executive privilege to bypass any Congressional subpoena. And not just on the matter of the Mueller report.
When he was Attorney General, Jeff Sessions made similar executive privilege threats. In that case, Sessions declared that he could not testify on certain subjects before Congress because it might later limit Trump's right to evoke executive privilege. Most legal experts at the time said Sessions was on very shaky ground indeed.
But William Barr took the stretching and twisting and warping of executive privilege to a brand new low. However, even before Barr's latest dodgy maneuvering, constitutional analysts were weighing in on the use and abuse of executive privilege.
Here's a Washington Post video from last March on this subject:
When George W. Bush attempted to claim immunity, Judge John D. Bates, Senior United States District Judge of the United States District Court for the District of Columbia, ordered the administration to comply with the Congressional subpoena. Bates stated:
Presumably, by order of the president, Barr issued a threat to evoke the right of executive privilege to bypass any Congressional subpoena. And not just on the matter of the Mueller report.
As The New York Times reports:
The White House stepped in on Tuesday to stop Donald F. McGahn II, the former White House counsel, from handing over documents subpoenaed by House investigators because President Trump may want to assert executive privilege over them.
Committee
were ordered to ask the White House for documents thereby allowing the
president to apply executive privilege. (Only the president has that power.)
For Trump
supporters, it might have seemed like a bold act of defiance by an unfairly harassed
president. For others, it was an endgame tactic from an administration backed
into a corner.
Very Shaky Ground
This isn't the first time the Trump administration has toyed with the idea of using executive privilege in such a way.When he was Attorney General, Jeff Sessions made similar executive privilege threats. In that case, Sessions declared that he could not testify on certain subjects before Congress because it might later limit Trump's right to evoke executive privilege. Most legal experts at the time said Sessions was on very shaky ground indeed.
But William Barr took the stretching and twisting and warping of executive privilege to a brand new low. However, even before Barr's latest dodgy maneuvering, constitutional analysts were weighing in on the use and abuse of executive privilege.
Here's a Washington Post video from last March on this subject:
Presidential Privilege: Justifications and Limits
Back in January 2018, the website Vox examined Trump's threats to use executive privilege and concluded that this tactic is destined to fail.
To see exactly why, we have to see what executive privilege is and what it isn't.
One thing above all else to keep in mind is that this presidential power is controversial because it is nowhere mentioned in the U.S. Constitution. For this reason, some scholars (Berger 1974; Prakash, 1999) have suggested that executive privilege does not actually exist and that the congressional power of inquiry is absolute.
History doesn't exactly agree with that. In fact, all presidents going back to George Washington have exercised some form of executive privilege. The first president established the rule of thumb: secrecy and immunity must be used only in the service of the public interest, not to escape Congressional oversight.
The other type of justification of evoking executive privilege is to protect the White House decision-making process. This states that government officials should be free to privately deliberate before deciding on a particular course of action.
Regardless of any other considerations, like the privacy of presidential communications or the decision-making process, the courts have judged that the rule of law must be upheld. “The fair administration of criminal justice” outweighed the president’s right to confidentiality in communications.
The two other areas that would justify the evocation would be preventing the exposure of information related to national security or of an ongoing criminal investigation.
Obviously, Trump is not motivated by either of these.
As the Vox article notes, a US district court has already ruled that Congress’s investigatory powers trump executive privilege in cases like this.
Executive privilege generally refers to the principle that the executive branch can sometimes ignore the legislature or judiciary’s subpoenas or other attempts to gain information from the White House, the president, his aides, and Cabinet agencies.On the surface, it would seem as though executive privilege would be the perfect loophole for a lawless president. Literally a "get out of jail free" card. But it is not as cut-and-dried as that.
One thing above all else to keep in mind is that this presidential power is controversial because it is nowhere mentioned in the U.S. Constitution. For this reason, some scholars (Berger 1974; Prakash, 1999) have suggested that executive privilege does not actually exist and that the congressional power of inquiry is absolute.
History doesn't exactly agree with that. In fact, all presidents going back to George Washington have exercised some form of executive privilege. The first president established the rule of thumb: secrecy and immunity must be used only in the service of the public interest, not to escape Congressional oversight.
For Congress to
properly fulfill its oversight duties, the president's privilege must be limited. That makes sense. However, that common sense fact hasn't stopped presidents like Nixon and Reagan from threatening to use
exercise the privilege.
To understand the limitations, we have to take a look at two of the four common justifications for presidential privilege. Firstly, the privilege can be legally justified in
order to keep a separation of the branches of government. The president must be
allowed to work without interference. That's pretty vague, just the way lawyers like it.
This would obviously include documentation, tapes of private conversation and other materials. Importantly, it can apply to conversations within the executive branch that don’t involve the president directly.
This protection does not- repeat- does not apply to possible illegal activity. In a 1997 ruling, Justice Patricia Wald, a Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit, wrote:
“The privilege disappears altogether when there is any reason to believe government misconduct occurred."Trump might believe differently but court rulings have made it extremely clear that not all subpoenas and inquiries can be quashed due to executive privilege.
Regardless of any other considerations, like the privacy of presidential communications or the decision-making process, the courts have judged that the rule of law must be upheld. “The fair administration of criminal justice” outweighed the president’s right to confidentiality in communications.
The two other areas that would justify the evocation would be preventing the exposure of information related to national security or of an ongoing criminal investigation.
Obviously, Trump is not motivated by either of these.
The Very Heart of Congress’s Constitutional Role
There is every reason to believe that Trump's possible evocation of executive privilege is a calculated bluff. And so far, the bluff has paid off for the president. However, if Democrats are willing to stand their ground, Trump could be forced into another humiliating back down.As the Vox article notes, a US district court has already ruled that Congress’s investigatory powers trump executive privilege in cases like this.
When George W. Bush attempted to claim immunity, Judge John D. Bates, Senior United States District Judge of the United States District Court for the District of Columbia, ordered the administration to comply with the Congressional subpoena. Bates stated:
"Congress’s power of inquiry is as broad as its power to legislate and lies at the very heart of Congress’s constitutional role. Presidential autonomy, such as it is, cannot mean that the Executive’s actions are totally insulated from scrutiny by Congress. That would eviscerate the Congress’s oversight functions."The Supreme Court will very likely be called upon to make its own judgment on executive privilege. Given Trump's general attitude towards the law, a showdown on the matter of executive privilege was inevitable.
It cuts to the heart of the Trump presidency. It goes beyond the constitutional question of the abuse of executive privilege. The question boils down to: Does Congress actually have the power to hold a president accountable?
