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Old 01-16-2020, 09:49 PM
FlikTheBlue is offline
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What, if any, is the extent of executive privilege for the former executive?


Letís assume that Trump has actually done all kinds of illegal things regarding Ukraine. The Trump inner circle like Bill Barr and Mike Pompeo, who would have the most direct knowledge of such crimes, didnít testify during the impeachment hearings due to executive privilege. Once Trump is no longer the executive and those other guys are no longer in the cabinet, can they still claim such privilege?
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Old 01-16-2020, 11:22 PM
Little Nemo is offline
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They could probably try a "chilling effect" argument.

The supposed value of executive privilege is that it allows the President and his staff to discuss a wide range of possibilities without having to worry about the legal consequences of their discussions.

The argument could be made that if executive privilege ended with the term of office, then public officials currently in office would have to worry about the future legal consequences of what they discuss now.
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Old 01-18-2020, 07:05 PM
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For executive privilege to extend beyond the current term, must tongues be excised? Fingers chopped? Potential stooges offed? How to ensure that no tales are told? Might aides be prudent to arrange refuge in Riyadh or Omsk?
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Old 01-19-2020, 07:45 PM
Martin Hyde is offline
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It's probably not an area of settled law, to be frank. It would have to be litigated will be the unsatisfactory answer. While claims of executive privilege (albeit not using the term--the first President to use the explicit term was Eisenhower) go back to 1792, litigation on the topic is rare. In the very first case of an executive asserting privilege from an inquiry for information was in 1792 when a Congressional inquiry, upset over a failed military expedition, wished to procure executive branch documents and other information related to the deliberate process behind the decisions at the highest levels of the executive in relation to the military expedition.

Washington convened his cabinet and asked if the executive was allowed to withhold information from Congress. The cabinet's decision was that the executive could do so if it was in the "public interest", which was loosely defined then and is loosely defined now. The best summation would be that Washington's administration was asserting that there are some aspects of executive decision making that ordinarily ought to be private from elements outside the executive branch, to insure the proper functioning of same.

Washington conveyed this opinion to Congress--but in a move very typical with assertions of executive privilege, Washington then gave Congress the information they had requested. So he asserted the powers of the office, but then gave Congress what they requested, essentially saying "I am not required to turn these documents over, but in this case I am exercising my discretion to do so." He was laying out that the executive is not required to universally turn over any and all documents requested by the legislature. This actually isn't really an improper or crazy idea, and there's elements of historical support for the concept from English common law that was practiced in the colonies prior to our independence.

In many ensuing tiffs between Presidents and Congressional inquiries over the next two centuries, a very similar outcome often occurred. Congress would request something, the White House would assert privilege and say it was not required to comply. But then usually a settlement would be reached extrajudicially, the White House would either turn over everything but maintaining it was doing so on a discretionary basis, or the White House would hammer out a deal with Congressional leaders to give them some of what they asked for but not everything. This usually kinda worked and didn't require interventions in the court system.

For this reason matters of executive privilege rarely reached the court system and even rare did they reach the Supreme Court. This was crucially important under Nixon, when you had a Congress deeply concerned with executive behavior and demanding information releases, and an executive unwilling to compromise. This resulted in the famous Supreme Court case U.S. v. Nixon (19740, which firstly did establish a constitutional basis for the concept of executive privilege. With vague parameters, although Chief Justice Berger said that the privilege would be particularly strong in cases affecting national security. However at the same time the Supreme Court firmly established the privilege's constitutional grounds, it specifically rebuked Nixon's particular assertion of executive privilege, finding it was not being done for the public interest but simply to undermine an investigation into his administration, Nixon was required to make the disclosures to Congress. After some stomping and angriness, he turned over the tapes which were in question, and essentially the final blows that ended his Presidency came subsequent to that.

To my knowledge there is little jurisprudence covering ex-Presidents. If I had to guess the courts would hold even ex-Presidents would have some level of executive privilege, but some of the specific areas of privilege that would be in the "public interest" would probably be much harder for a former President to assert, as they were no longer engaged in active governance. So back to my first statement--it would have to be litigated.
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Old 01-19-2020, 09:42 PM
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Quote:
Originally Posted by FlikTheBlue View Post
Bill Barr and Mike Pompeo, who would have the most direct knowledge of such crimes, didn’t testify during the impeachment hearings due to executive privilege.
Did they? I thought the blanket argument at that time was they had "absolute immunity". Was EP asserted?

Last edited by squeegee; 01-19-2020 at 09:43 PM.
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Old 01-20-2020, 02:34 PM
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My understanding is that executive privilege is exercised by the office, not the individual. Iím not sure a former president would even have standing to challenge the current executive officeís exercise (or refusal) of privilege.

I expect proponents of the unitary executive theory (that is, many Republican judicial appointees) would not be in favor of reducing the privileges of the executive office.
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Old 01-21-2020, 09:40 AM
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The argument is pretty simple at its core. The United States is made up of three separate and co-equal branches of government. Power is split into three to protect liberty so that no one branch can run over the others and take powers delegated to them.

In order to carry out these powers, discussions behind the scenes, seeking advice, spitballing ideas and so forth have to be done in a way that encourages frank and no holds barred discussion. If I am an advisor to the president, but my idea is edgy, maybe I won't give it if it will be on the front page of the New York Times in ten years, or if subpoenaed, in 10 weeks. So the executive branch doesn't function as well as it might.

Further, it is part of the intra-branch struggle so as not to give more power to the other branches. If Congress can ask for internal discussions of the executive, why not the judicial? Why may it not ask John Roberts for the inside scoop on the ACA case, or ask David Souter what when on behind the scenes at the Planned Parenthood v. Casey deliberations, you know, for the "legitimate legislative purpose" of confirming future justices?

Also, why should the Legislative Branch alone have this power? Why can't the president compel representatives to testify about behind the scenes discussions to "ferret out corruption," or why can't the Supreme Court subpoena members of Congress to get their intent in passing certain laws?

If every branch is in every other branch's business and there are no secrets, then everyone will know that and form a more collaborative effort so that there isn't a perpetual Mexican standoff. This will consolidate power and not what our framers intended.

Now, you may say that this is just bullshit because Trump is not concerned with any of that, but only trying to cover up his untoward activities. However, that charge could be leveled any time one branch wants information. That branch will always cite a compelling reason for divulging these communications.
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