The NPR Politics Podcast - The Docket: What Is Executive Privilege And What Are Its Limits?

Episode Date: November 26, 2021

In order to resist a congressional investigation into the January 6th insurrection, former President Trump and his associates are claiming executive privilege. They say the communication between a president and his advisers should remain confidential. Congress says it wants to get to the bottom of what the president knew. So where does executive privilege come from, and does it take precedent over congress' power to investigate?This episode: White House correspondent Asma Khalid and national justice correspondent Carrie Johnson.Connect:Subscribe to the NPR Politics Podcast here.Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Listen to our playlist The NPR Politics Daily Workout.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey there, it's the NPR Politics Podcast. I'm Asma Khalid. I cover the White House. And I'm Carrie Johnson, national justice correspondent. And this is The Docket, our ongoing series where we break down the big legal questions of the day. Kanye West once rapped, no one man should have all that power. No one man should have all that power. And sure, Kanye's political past is strange, to say the least. But some legal scholars might agree with him when it comes to executive privilege. Executive privilege is the very question of how much power the president has to resist oversight

and keep his confidential communications private. And this is timely because, Kerry, right now, former President Donald Trump is arguing that even though he's not in office, his communications with his advisors should remain confidential. That's right. The January 6th Congressional Committee wants access to some of these communications Trump was having leading up to the attack on the Capitol. And Trump has done two major things so far. He sued the National Archives to prevent the release of his papers to Congress. And he's directed his aides, his former aides, not to provide documents or sit for depositions from the January 6th committee.

And we're going to talk about how the legal battle for Trump may play out. But to understand it, we have to go back to 1974 and the Supreme Court case that laid the foundation for today. The Constitution does not expressly mention executive privilege, but presidents have long claimed it. Even the very first president, George Washington, claimed he had privilege over congressional oversight. Then in 1974, though, the Supreme Court expressly mentioned executive privilege because of the Watergate scandal. Good evening. The biggest White House scandal in a century. The Watergate scandal broke wide open today. Remember, in 1972, Republican operatives broke

into the Democratic National Committee office at the Watergate Hotel, and they got busted because they weren't very good burglars. Those operatives were eventually linked to the Nixon administration, and a special prosecutor was assigned to investigate how far up the ladder this whole conspiracy may have gone. We had, we, the special prosecutor's office, had in two rounds of subpoenas, sought the production by President Nixon of some oral recordings that had been done in the White House, in the actual Oval Office and the President's private office. That's Philip Lacovara.

He was counsel to the special prosecutor investigating Watergate. The special prosecutor subpoenaed the President's records, including audio tapes recorded by the White House. But they ran into a big roadblock. The president refused to comply and claimed something called executive privilege. Each day, a president of the United States is required to make difficult decisions on grave issues. It is absolutely necessary if the president is to be able to do his job as the country expects that he be able to talk openly and candidly with his advisors about issues and individuals.

This kind of frank discussion is only possible when those who take part in it know that what they say is in strictest confidence. We in the special prosecutor's office argued that there was no such thing as executive privilege and that instead the president, like any other person, has the obligation to produce evidence when it's subpoenaed. And Nixon's challenge went all the way to the Supreme Court and Nixon lost unanimously, the tapes were handed over to the special prosecutor's office. President Nixon resigned. I have never been a quitter. To leave office before my term is completed is abhorrent to every instinct in my body. The tapes that we had subpoenaed showed that he was up to his armpits in the conspiracy. But as president, I must put the interests of America first.

But what the decision actually did was to sustain the existence of something called executive privilege and to say it's not simply an evidentiary privilege, it's constitutionally based. The decision led to Nixon resigning within a couple of weeks, but maybe just as important all these years later. This court ruling enshrined executive privilege as a formal power of the presidency. Former President Nixon, not one to let things go, apparently, took another case to the Supreme Court exerting his executive privilege, even though he was then no longer in office. No longer in office. And a few years after he resigned in disgrace, Nixon made a new announcement about his presidential documents. office, President Nixon announced, since the recordings had proven so catastrophic for his presidency and he feared for his historical reputation, that he was going to destroy all

the remaining tape recordings and other documents. Well, obviously there was a huge clamor. What else was on those tapes that would be important for history, and that case reached the Supreme Court too. This case involves the first time in the 200-year history of our republic that Congress has seen fit to enact legislation seizing the papers, five and a half years of the administration of a former president of the United States. Nixon once again lost and the documents were turned over. Philip LaCavara was advising the team fighting Nixon's case this time, and he points out the 1977 decision had an important caveat. Executive privilege can extend, at least to some extent, beyond the term limits of a president. And what the court did in 77 was extend that to say that assurance of some

degree of confidentiality will not be effective if it is understood that it will simply end in a few months or maybe even two or three years with the end of the administration of the president. So, Kerry, I just want us to pause for a moment and make sure that I am understanding you all correctly. Former President Richard Nixon lost both of these Supreme Court cases. He had to hand over his confidential communications. But it sounds like what you all are saying is that one of the most important legacies of these two decisions was how it laid the groundwork for future presidents to actually argue that they do, in fact, have executive privilege and can limit congressional oversight. That's right. And since then, in the 50 years or so that's followed, we've seen an ongoing struggle between the executive branch and the legislative branch over whose power is greater, who trumps who.

Well, that, Carrie, brings us to today's Supreme Court, where there is a conservative supermajority, three justices appointed by former President Trump. What do you know about where they stand on how much executive privilege a president ought to have? Well, it's pretty interesting. Many of the conservatives on the court subscribe to this theory that's known as the unitary executive, which also means a very powerful president. The president is not simply the head of the executive branch. The president is the executive branch. Oh, wow. It means almost les parcs et moi. The president is the state.

And these other branches, especially Congress, they're kind of incidental. They're just up to political mischief. But the president is the embodiment of constitutional power of the state. So, Carrie, to bring this back to Mr. Kanye West, who we mentioned at the outset, it seems like the majority of the Supreme Court does not agree with him. One man should have all that power then. Well, I think we're going to find out because, you know, there's ongoing litigation both involving former President Trump and the

National Archives and some of Trump's individual aides, like Steve Bannon. And I think it's likely that the current Supreme Court is going to end up with one of those cases before too long. All right, then. Well, we are going to take a quick break. And when we get back, we'll look at what this means for Donald Trump's legal battle and how executive privilege could be weaponized by both political parties. And we're back. And we've got a special guest on the show this now, Victoria Nurse, a law professor at Georgetown University. She's an expert on executive privilege. Hi, Victoria. Hi, Asma. And Kerry just walked us through the history of where executive privilege comes from, how other presidents have used executive privilege in the past, and how those uses have been challenged,

which now brings us up to the point where we are today and the current tussle between Congress and former President Donald Trump. A congressional committee wants to obtain information about Trump's communications leading up to the attack on the Capitol on January 6th. The former president does not want to grant them any access. So I want to begin by just asking a pretty basic question, which is what is his legal argument, the former president's? Well, the former president's argument is that no president is safe if any president or former president must talk about the things that happened in the Oval Office. So they want to keep what happened in the Oval Office secret. And so the idea is that a former president should be able to claim it because it's protecting all presidents past and future. You know, Carrie and I were speaking earlier about how

the current court is a Supreme Court that could be sympathetic to the idea that President Trump's executive privilege kind of trumps everything else. How do you think that this court could rule on this if it reaches them? Well, I commented on the last time that President Trump claimed an argument, made an argument against Congress. I thought he would lose. He did lose. But the Supreme Court made up a special rule that was more favorable to him than had existed in the past. So this is when Congress was trying to get his tax returns. Oh, yes. Yeah. In the case called Mazars, the court said that, well, there's a special standard when it applies to a president. That case gives the president a higher standard and Congress must meet a higher standard when it's investigating the president.

And that's separate and apart from actually the executive privilege claim. This is a claim about any congressional investigation. Now, I think they're going to lose on that because the purpose of this investigation is, in fact, an investigation, but they could, in fact, legislate all sorts of things coming out of January 6th and 3rd in Capitol security, the proximity of presidential speeches, you know, and riot control and all kinds of things. The ultimate question about executive privilege, though, is going to be much harder. Professor, one of the things I heard you say is that with respect to the January 6th investigation in particular, this committee could make a strong showing that there are real needs for

legislation here. You talked about crowd control and proximity of presidential remarks to the certification and possibly other things. It seems to me that at least the lower court judge in D.C. who's ruled on some of this already, Judge Chutkan, has found that January 6th is different, right? The fact of January 6th and what happened there was so heinous that it may trump some of the arguments from the former president and his aides. It is different. I mean, we never had an assault on the Capitol like that. You know, we had the bonus armies surround the Capitol, but we never had anyone assault the Capitol like that. I think this is why the court in the last case, Mazar's, probably made a big mistake because they kept emphasizing

the fact that it should be for legislation, not for investigation. But the investigative function has always been really key to Congress. And it's to preserve itself. It's to preserve the courts, to preserve the White House. There are all sorts of reasons why they have that power. And this court is not particularly deferential to Congress in my view. And I think that's where they inadvertently gave Donald Trump an argument that they'll have to go back on. I mean, I think the judge is right that January 6th is different. But if I were a district court judge, um, I would try to fall within the parameters of what the Supreme Court said in Mazar's, um, as well as make the argument that in any event, this just shows that the legislative function is not an absolute limit that Congress has a power to investigate. And it certainly has the power to investigate an attack on its own building.

You know, Victoria, I want to ask you perhaps a broader question more about the politics of this situation that we're in right now, because it appears that both Democrats and Republicans have argued in favor of executive privilege, and then they have argued against it, you know, if they're out of the White House or in the White House. And I am curious, I think to some of our listeners, it feels like this is a political tool that is just weaponized opportunistically by both political parties. I think the parties, you know, often deploy it in different ways, in part because it can be used for trivial matters, but it can also be used for really important ones, such as the attack on the Capitol.

One of the problems here is the courts, really. The courts have given very little guidance to the political departments about how to manage executive branch and congressional conflicts. In fact, the Nixon cases that you heard about earlier, they basically gave the courts the authority to decide these executive privilege claims. In a certain context, that was a criminal trial, right, of the Watergate burglars. But that case has since been used to sort of present this theory that the executive in the Congress should come to some kind of accommodation or some kind of agreement. And then if they can't come to some kind of agreement, then the judge will decide. In the low profile cases, and I've been in the White House and done this, you know, you will work it out. Like someone asked for X, Y, and Z that could in theory be subject to executive privilege, and you work it out. You know, You say, oh, well, you can see this,

but you have to go to the Justice Department and look at it in camera and all sorts of other things, if it has some sensitivity for national security reasons, for example. But if it's a high-profile issue, then it gets into the newspapers and everybody is making large claims. The difference in the Donald Trump case, and I think listeners should pay attention to this, is his lawyers have consistently pushed the law in a direction for which there's not a lot of precedent. You know, the D.C. Circuit Court is going to hear on November 30th some arguments that former President Trump is making with respect

to the National Archives and his records. And some people have argued, even though the courts are moving pretty swiftly here for courts, that Trump may be in the mind of trying to run out the clock until Congress changes hands next year, if it does. Do you think the courts may move slowly enough that that is the outcome here? I think courts are actually realizing that they've become the pawns. Courts can decide things they did during the Nixon era very expeditiously if they so choose. They are likely to do that if they think the case is pretty well settled. And, you know, the banning case is very clear. As far as the other claims, well, we'll see. We'll see if the Supreme Court is now a different court than the one that decided the

Nixon cases. That is the question. That is the $64,000 question. All right, Victoria, thanks again very much for taking the time. We really appreciate it. Thank you, Asma. Victoria Nurse is a professor at the Georgetown Law Center. I'm Asma Khalid. I cover the White House. And I'm Carrie Johnson, national justice correspondent. And thank you all, as always, for listening to the NPR Politics Podcast.