Jan. 6: Five reasons Trump cannot hide behind executive privilege | TheHill – The Hill

The House select committee investigating the Jan. 6 Capitol insurrection which occurred a year ago this week is reportedly planning televised hearings in the coming months to share what its learned from the over 300 witnesses and tens of thousands of documents consulted thus far. Rep. Liz CheneyElizabeth (Liz) Lynn CheneyFox News tops ratings for coverage on Jan. 6 anniversary events Sunday shows preview: Congress marks Jan. 6 anniversary; US, Russia to hold talks amid rising tensions US sees image tarnished abroad post-Jan. 6 MORE (R-Wyo.) herself an experienced lawyer and vice chair of the committee has signaled that evidence is mounting that former President Donald TrumpDonald TrumpFox News tops ratings for coverage on Jan. 6 anniversary events Sunday shows preview: Congress marks Jan. 6 anniversary; US, Russia to hold talks amid rising tensions Democrats must close the perception gap MORE might be guilty of obstruction of an official proceeding, which is a federal felony that can trigger up to 20 years in prison.

Theres no established legal or historical path from a congressional investigation to a criminal trial of a former president and for good reason. Presidents are special, and they enjoy numerous special privileges of the office. During the Trump years, debate swirled around the concept of executive privilege, and whether his status as president would immunize him from liability for actions taken both before and during his presidency. As the work of the select committee heats up, executive privilege could again loom large as has already been the case with the snubbing of subpoenas by former Trump adviser Steve BannonSteve BannonGaetz on Jan. 6: 'We're ashamed of nothing' 'Daily Show' installs 'Heroes of the Freedomsurrection' Jan. 6 monument Garland vows prosecutions 'at any level' over Jan. 6 MORE and chief of staff Mark MeadowsMark MeadowsFox News tops ratings for coverage on Jan. 6 anniversary events Meadows asks Supreme Court for 'prompt' answer on Trump Jan. 6 lawsuit Jan. 6 and the GOP's masterclass in the emptiness of words MORE.

Here are five reasons why an attempt by Trump to hide behind executive privilege regarding Jan. 6 should probably fail.

1. President Joe BidenJoe BidenAre we investing trillions on what matters? Biden eulogizes Reid as a fighter 'for the America we all love' at memorial service Fox News tops ratings for coverage on Jan. 6 anniversary events MOREs decision not to invoke executive privilege on Trumps behalf is likely fatal to any competing claim by Trump. With respect to the protection of military and state secrets, the U.S. Supreme Court in 1953 stated in United States v. Reynolds that the privilege belongs to the Government, and must be asserted by it; it can neither be claimed nor waived by a private party (which is Trumps status now). It is not to be lightly invoked, the court explained. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. No such formal claim has been lodged by Biden or Trump, for that matter in connection with Jan. 6.

Trump did initiate litigation over whether his assertion of executive privilege would supersede Bidens contrary decision under the Presidential Records Act for purposes of determining whether the select committee sees archived White House documents. But Trump roundly lost that bid in the U.S. Court of Appeals for the D.C. Circuit. Even if he succeeds in persuading the Supreme Court to take and reverse that case, a favorable ruling regarding archived records under the language of the Presidential Records Act would not necessarily protect Trump from a congressional or judicial subpoena for testimony. Theres only one president at a time under the Constitution, and in this moment, its Biden.

2. Executive privilege does not offer blanket immunity from legal process. Like the attorney-client privilege, executive privilege does not operate to immunize an individual from having to provide any and all testimony or records pursuant to a lawful subpoena. It only allows a recipients lawyer, during an interview, to lodge objections question-by-question and direct the witness not to answer those questions that call for privileged information. Former President Bill ClintonWilliam (Bill) Jefferson ClintonJamal Simmons to be named Harris communications director Jan. 6: Five reasons Trump cannot hide behind executive privilege To save America, we need a council of presidents MORE testified in the Monica Lewinsky investigation under Independent Counsel Kenneth Starr, for example, even though he was the sitting president of the United States.

In this way, executive privilege is not unlike the much weightier Fifth Amendment ban on self-incrimination, which likewise anticipates that witnesses will show up for testimony and answer certain questions by invoking the Fifth rather than authorizing a blanket refusal to appear altogether. This is precisely why the Justice Department saw fit to indict Steve Bannon for contempt of Congress. He refused even to appear before the committee on grounds of executive privilege, which was not his right even if it had been formally invoked by the president.

3. Executive privilege did not protect President Richard Nixon from having to produce his Oval Office tapes in response to a subpoena on the theory that the public interest in knowing the truth outweighed his interest in secrecy. Information bearing on a bloody insurrection hardly warrants greater protection than the Watergate tapes that led to the untimely end of Nixons term in office. In United States v. Nixon, a unanimous Supreme Court explained in 1974: Neither the doctrine of separation of powers nor the generalized need for confidentiality at high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.

In short, executive privilege can be outweighed by other public interests and Congresss interest in investigating Jan. 6 may be one of them.

Indeed, in its 2020 decision in Trump v. Mazars, even the modern conservative-leaning court refused to extend executive privilege beyond its existing boundaries to protect Trumps private financial records from disclosure to a grand jury. This round, Trump shouldnt get greater protections than Nixon did, either.

4. Even if executive privilege applied to Trumps communications around Jan. 6, it may have already been waived. There arent a lot of cases discussing executive privilege. But there is a lot of law applying the related concept of attorney-client privilege. The rationale behind both is similar: Its good for presidents to have confidential communications regarding issues of national importance and for clients to have confidential communications with their lawyers about legal issues. If such communications were easily made public, people wouldnt have them to begin with, and the quality of the privilege holders decision-making would suffer.

But if a client allows a friend to listen in on a conversation with a lawyer, theres no reason to keep it confidential anymore. The inclusion of a third party is known as a waiver. In some jurisdictions, a waiver extends to the entire subject matter of the communication not just the actual statements overheard. Its been reported that Meadows already put some of what he discussed with Trump that day in his forthcoming book. If thats true, a court might deem any privilege around those conversations waived.

5. The attorney-client privilege has an exception for communications made in furtherance of a crime or fraud. So stoking an insurrection to interfere with the peaceful transfer of presidential power should qualify for purposes of executive privilege, too. A client cant obtain a lawyers advice on where to bury a body and then hide behind the attorney-client privilege if asked about that conversation. The need for airing of evidence of a crime outweighs the clients need for confidentiality. The same exception should extend to communications with a president regarding an attempted overthrow of a legitimate election.

What many people dont seem to understand about executive privilege is that its not an insurmountable barrier to the publics right to know about presidential communications. Its merely a policy gloss on presidential prerogatives that appears nowhere in the actual Constitution. It is accordingly fickle. It is not a right, but a privilege that courts have extended to presidents out of respect for the office. Presidents who fail to show reciprocal respect for the office arguably forfeit access to its privileges.

Kimberly Wehleis a professor at the University of Baltimore School of Law and author of How to Read the Constitution and Why, as well as What You Need to Know About Voting and WhyandHow to Think Like a Lawyer and Why (forthcoming February 2022). Follow her on Twitter:@kimwehle

Originally posted here:
Jan. 6: Five reasons Trump cannot hide behind executive privilege | TheHill - The Hill