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What is executive privilege? Does a former president still get it?



Can a former president claim the protection of an informal helper? The law may not be on your side. The weather probably is.

Investigators on Jan. 6 vowed to seek criminal charges against Bannon when he passed a deadline to serve a subpoena in Congress. Several other former advisers, including Dan Scavino and former White House chief of staff Mark Meadows, have also been cited for insurrection-related information.

Read the full story at Bannon and Trump’s effort to ignore Congress.

What is executive privilege?

Presidents have been fighting with Congress throughout U.S. history over the concept of executive privilege.

The executive in question is the president and the privilege is his right to receive honest advice in private and to protect him from Congress and the courts. The term “executive privilege” goes back to the Eisenhower administration, but struggles for separation of powers have been going on for centuries in the United States.

The idea is that presidents can protect their aides from having to share internal communications with Congress when it is overseeing it, as the Constitution suggests.

Note: Although the Constitution does not use this word, “supervision, “requires Congress to pass laws, which necessarily requires lawmakers to understand how the president executes them.

There is a natural tension there: the official duties of one branch of government in conflict with the duties of another.

“You want advisors to feel free to explore various options, including options that may be unpopular, and to have a free flow of talks with the president in order to develop the best possible options,” said Neil Eggleston, a former adviser to the White House. worked in the Obama administration, he said Harvard Law Today.

The danger, of course, is that this honest protection can be used to hide illegal or inappropriate behavior.

Post-presidential privileges?

Trump wants to take that protection with him out of office and extend it to cover people like Bannon, who had no official capacity.

It’s a strange twist in a debate that has touched all presidents, including Republicans and Democrats.

  • Barack Obama invoked executive privilege to protect your Justice Department from accountability for the transaction Rapid and furious gun tracking scandal.
  • George W. Bush invoked executive privilege to protect his assistants from being held accountable for the massive layoffs of U.S. lawyers.
  • The final proof of privilege came when the Supreme Court rejected Richard Nixon’s argument that he could keep recordings of conversations in his oval office of a special prosecutor.

When questions of executive privilege are raised in the courts, they will last forever. The Obama and Bush-related cases were not resolved until they stepped down.

Eggleston cites Nixon-era Supreme Court cases to argue that it is actually President Joe Biden who should decide whether Trump has a privilege now that he is out of office.

“According to our system, authority is assigned to the office, not the man,” Eggleston told Harvard Law Today.

Trump’s White House had an expansive but inconsistent view of privilege

Trump initially used executive privilege to conceal Special Adviser Robert Mueller’s report on Russia’s investigation in Congress and the public. He used it to hide documents related to the congressional census. Neither eventually worked, but they were part of an attempt to expand executive privilege.
Trump simply published his damn transcript infamous phone call with Ukrainian President Volodymyr Zelensky, part of a strategy that cannot be seen here to downplay the fact that it exerted political pressure on Ukraine to harm Biden.

But then, as the impeachment approached, many White House aides refused to cooperate with House investigators. They simply ignored the citations and refused to testify or deliver documents. This lack of cooperation became the basis of one of the articles of dismissal, but Democrats, who were in a hurry at the time, did not pursue court summonses.

Other witnesses, the ones you saw testify against Trump, ignored Trump and cooperated with investigators. He was charged in the House, but Republicans in the Senate voted against convicting him.

Not simply satisfied with the privilege, Trump’s lawyers later argued that he was also entitled to “total immunity.” He The Supreme Court did not agree, deciding that he could not hide his financial records from lawmakers and state authorities.

A history of privileges

The questions of the presidents’ privilege go back to George Washington, who did not want to tell Congress exactly how the Jay treaty was negotiated with Britain.

So did Thomas Jefferson I learned first when he wrote about Trump’s privilege claims in 2019:

When President Thomas Jefferson argued in 1807 that he should not fully comply with a citation for documents, he was sentenced to have his former vice president betrayed for trying to incite a revolution toward the West. The former vice president turned border-revolutionary tried was Aaron Burr, of “Hamilton” duel fame. The Supreme Court, in the voice of Jefferson Leaf’s Chief Justice John Marshall, disagreed with the president’s argument, Jefferson finally coughed up the documents Burr wanted for his defense, and finally Burr came out free.

Richard Nixon was concerned that it would weaken executive privilege with his repeated attempts to invoke it. But Trump overloaded the concept of privilege with blatant claims that continue even after he left office and to cover people like Bannon without official capacity.

Biden rejects Trump’s claim of privileges

Presidents often try to help each other in executive privilege and defend the claims of others after they have left office.

In a break with this tradition, the Biden administration he told the National Archives to publish documents related to January 6 to researchers in Congress.

Trump could go to court to keep the documents sealed.

These cases usually take years and Trump probably won’t have to wait that long. If Republicans take control of the House or Senate after mid-2022 (and history suggests they will), all January 6 consultations will surely disappear.