Filed Under: Politics

Executive privilege isn’t the same as complete immunity, expert explains

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President Trump’s legal team has claimed executive privilege as the House select committee investigating the Jan. 6 Capitol insurrection seeks to obtain communications and other records related to that day’s events. But executive privilege isn’t a blanket term. It must be used narrowly and precisely, according to legal experts.

”In modern days, executive privilege means a limited privilege on behalf of the executive to decline to give public information to Congress or to the media, about things that are in the nation’s interest. It doesn’t cover crime, it doesn’t cover anything,” Georgetown University Law Center Professor Victoria Nourse said. 

”Under the court’s rulings, they have to actually pinpoint the precise document or the precise conversation that they are claiming is subject to privilege. It’s easy to say, ‘oh, all I said was secret.’ But if a court is going to review that they have to have something to look at, it has to be particularized,” she said.

Executive privilege isn’t in the Constitution, but it has been around since George Washington. He used it to say no to requests about the Jay Treaty negotiation in order to avoid war.

Then just a few years later, Thomas Jefferson invoked it to keep from testifying and providing documents during the treason trial for his former vice president, Aaron Burr. 

However, it was President Dwight Eisenhower who coined the term executive privilege during the McCarthy hearings in 1954. When Joseph McCarthy was looking to expose people soft on communism in the Army, Eisenhower refused to turn over notes from his meetings with army officials, saying national security may be put at risk.

”It simply means the president’s right to withhold information that he thinks might be, you know, dangerous to the Republic,” she said.

Eisenhower coined the phrase, but it was Nixon who really made it mainstream during the Watergate investigation. President Nixon refused to hand over his tapes regarding Watergate, saying the president is completely immune from judicial processes. In other words, Nixon claimed, the president is above the law. The Supreme Court disagreed with that assertion.

The ground for asserting the privilege as to subpoenaed materials…cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice,” Justice Warren E Burger ruled in 1974. 

Executive privilege can be confusing because the court gets to reexamine if a clam of executive privilege falls into the scope of it every time a case is brought to them.

A report from the non-partisan Congressional Research Service identified three factors the court looks at when making a decision, including who wrote or got the communication, involvement of a presidential power, and the likelihood of containing important evidence. 

Most cases don’t make it to court because they are usually between Congress and the Executive Branch and the two sides can generally negotiate to sort things out.

“Claims of executive privilege by both presidents have been made almost every day in Washington. And they’re typically negotiated. And they’re negotiated by focusing on a single thing,” Nourse explained. “I’ve been in these negotiations, and typically, it turns out to be a pretty small identified item. And let’s say members of Congress want to see something, then you’ll work out situations,” Nourse said. “When there is a national interest in the information, though, a court will uphold its disclosure.”

As for who can request executive privilege, Nourse says it isn’t limited to current officials.

Judges tend to be more deferential to a sitting president, because of the demands of the office. But former presidents do have a form of privilege. This happened in the Nixon case, as well. But the court said it’s again, it’s defensible, by a good enough reason,” she said.

“he is going to invoke executive privilege”

The notion that President Trump on his own can claim executive privilege

Donald Trump’s claim of executive privilege

Annie Andersen:THESE DAYS, YOU CAN’T TURN YOUR HEAD WITHOUT HEARING PRESIDENT  TRUMP AND EXECUTIVE PRIVILEGE IN THE SAME SENTENCE.

WHAT EXACTLY IS EXECUTIVE PRIVILEGE?

FOR THAT WE OPEN TODAY’S D-C DICTIONARY.

IN ITS MOST BASIC SENSE :  EXECUTIVE PRIVILEGE ALLOWS THE PRESIDENT AND OTHERS IN HIS CIRCLE TO

WITHHOLD INFORMATION TO CONGRESS OR A COURT –

 CLAIMING IT WOULD THREATEN OUR NATIONAL SECURITY.

CASE IN POINT:

FORMER PRESIDENT DONALD TRUMP CLAIMED EXECUTIVE PRIVILEGE FOR HIMSELF AND HIS FORMER STAFF…

… AFTER THE CONGRESSIONAL HEARING ISSUED  SUBPOENAS FOR THE INVESTIGATION INTO THE JANUARY 6TH CAPITOL RIOT.

SOUNDS SIMPLE.

BUT IT’S NOT.

EXECUTIVE PRIVILEGE NEEDS TO BE VERY SPECIFIC,

ACCORDING TO PROFESSOR VICTORIA NOURSE FROM GEORGETOWN LAW.

Victoria Nourse:

<<”UNDER THE COURT’S RULINGS, THEY HAVE TO ACTUALLY PINPOINT THE PRECISE DOCUMENT OR THE PRECISE CONVERSATION THAT THEY ARE CLAIMING IS SUBJECT TO PRIVILEGE.”>>

Annie Andersen THAT’S ONE REASON WHY THE  WHITE HOUSE TURNED DOWN TRUMP’S REQUEST FOR EXECUTIVE PRIVILEGE.

PERHAPS A BIGGER REASON — THE WHITE HOUSE SAYS THE EVENTS OF JANUARY 6TH ARE UNPRECEDENTED.

Jen Psaki:

“We are going to assess and review as is standard in the process the documents and any efforts to exert executive privilege on a case-by-case basis.”

“As every white house has in the past. But I think if you look back at past presidents, Democratic and Republican, there really isn’t a precedent for what we are talking about with this select committee and what they are trying to get to the bottom of and the uniqueness of that is important context.”

Annie Andersen:

EXECUTIVE PRIVILEGE ISN’T IN THE CONSTITUTION…

BUT IT HAS BEEN AROUND SINCE GEORGE WASHINGTON.

IT WASN’T UNTIL 1954, WHEN IKE COINED THE TERM DURING THE JOE MCCARTHY HEARINGS LOOKING FOR COMMUNISTS IN THE ARMY.

PRESIDENT EISENHOWER REFUSED TO TURN OVER NOTES FROM HIS MEETINGS WITH ARMY OFFICIALS SAYING NATIONAL SECURITY MAY BE PUT AT RISK.

BUT IT WAS PRESIDENT RICHARD NIXON WHO SET THE CURRENT COURT RULING

DURING THE WATERGATE SCANDAL.

NIXON REFUSED TO HAND OVER HIS SECRET  TAPES… SAYING THE PRESIDENT IS COMPLETELY IMMUNE FROM JUDICIAL PROCESS.

BUT, THE SUPREME COURT RULED THE PRESIDENT IS NOT ABOVE THE LAW.

[ TAKE SOT] WARREN E BURGER: Audio Only

<<“THE GROUND FOR ASSERTING THE PRIVILEGE AS TO SUBPOENAED MATERIALS…CANNOT PREVAIL OVER THE FUNDAMENTAL DEMANDS OF DUE PROCESS OF LAW IN THE FAIR ADMINISTRATION OF CRIMINAL JUSTICE”>>

Annie Andersen: SO HERE’S WHERE EXECUTIVE PRIVILEGE GETS COMPLICATED.

THE COURT GETS TO REEXAMINE EACH CLAIM OF EXECUTIVE PRIVILEGE TO SEE IF IT  FALLS INTO THE SCOPE OF THE INQUIRY.

BUT MORE OFTEN THAN NOT, BOTH PARTIES NEGOTIATE BEHIND CLOSED DOORS AND IT NEVER GETS TO COURT.

[TAKE SOT – VICTORIA NOURSE]

<<”THEY’RE NEGOTIATED BY FOCUSING ON A SINGLE THING, WHAT DO YOU REALLY NEED? RIGHT? AND I’VE BEEN IN THESE NEGOTIATIONS, AND TYPICALLY, IT TURNS OUT TO BE A PRETTY SMALL IDENTIFIED ITEM.”>>

Annie Andersen: CAN A FORMER PRESIDENT INVOKE EXECUTIVE PRIVILEGE?

ACCORDING TO NOURSE, THE AUTHORITY ATTACHES TO THE OFFICE, NOT THE HUMAN.

[TAKE SOT NOURSE]

<<” Judges tend to be more deferential to a sitting president, because of the demands of the office. / but former presidents do have a form of privilege, this happened in the Nixon case, as well. But the court said it’s again, it’s defeasible, by a good enough reason.”>>

Annie Andersen: NOW THAT YOU KNOW ABOUT EXECUTIVE PRIVILEGE, WHAT OTHER WORDS SHOULD WE ADD TO THE DC DICTIONARY?  LET ME KNOW IN THE COMMENTS BELOW

 

President Trump’s legal team has claimed executive privilege as the House select committee investigating the Jan. 6 Capitol insurrection seeks to obtain communications and other records related to that day’s events. But executive privilege isn’t a blanket term. It must be used narrowly and precisely, according to legal experts.

”In modern days, executive privilege means a limited privilege on behalf of the executive to decline to give public information to Congress or to the media, about things that are in the nation’s interest. It doesn’t cover crime, it doesn’t cover anything,” Georgetown University Law Center Professor Victoria Nourse said. 

”Under the court’s rulings, they have to actually pinpoint the precise document or the precise conversation that they are claiming is subject to privilege. It’s easy to say, ‘oh, all I said was secret.’ But if a court is going to review that they have to have something to look at, it has to be particularized,” she said.

Executive privilege isn’t in the Constitution, but it has been around since George Washington. He used it to say no to requests about the Jay Treaty negotiation in order to avoid war.

Then just a few years later, Thomas Jefferson invoked it to keep from testifying and providing documents during the treason trial for his former vice president, Aaron Burr. 

However, it was President Dwight Eisenhower who coined the term executive privilege during the McCarthy hearings in 1954. When Joseph McCarthy was looking to expose people soft on communism in the Army, Eisenhower refused to turn over notes from his meetings with army officials, saying national security may be put at risk.

”It simply means the president’s right to withhold information that he thinks might be, you know, dangerous to the Republic,” she said.

Eisenhower coined the phrase, but it was Nixon who really made it mainstream during the Watergate investigation. President Nixon refused to hand over his tapes regarding Watergate, saying the president is completely immune from judicial processes. In other words, Nixon claimed, the president is above the law. The Supreme Court disagreed with that assertion.

The ground for asserting the privilege as to subpoenaed materials…cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice,” Justice Warren E Burger ruled in 1974. 

Executive privilege can be confusing because the court gets to reexamine if a clam of executive privilege falls into the scope of it every time a case is brought to them.

A report from the non-partisan Congressional Research Service identified three factors the court looks at when making a decision, including who wrote or got the communication, involvement of a presidential power, and the likelihood of containing important evidence. 

Most cases don’t make it to court because they are usually between Congress and the Executive Branch and the two sides can generally negotiate to sort things out.

“Claims of executive privilege by both presidents have been made almost every day in Washington. And they’re typically negotiated. And they’re negotiated by focusing on a single thing,” Nourse explained. “I’ve been in these negotiations, and typically, it turns out to be a pretty small identified item. And let’s say members of Congress want to see something, then you’ll work out situations,” Nourse said. “When there is a national interest in the information, though, a court will uphold its disclosure.”

As for who can request executive privilege, Nourse says it isn’t limited to current officials.

Judges tend to be more deferential to a sitting president, because of the demands of the office. But former presidents do have a form of privilege. This happened in the Nixon case, as well. But the court said it’s again, it’s defensible, by a good enough reason,” she said.

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