Privilege This!
Does executive privilege protect one being accused of inciting an insurrection?
Or of assembling a mob to violate laws?
What once was “blind justice,” (1) is now ‘elusive justice,’ as in ‘unseen,’ ‘inconclusive.’
Not tiring of mediocre entertainment, America witnessed admitted conspiracy, justice obstruction and calumny last week. It's all legit, so-to-speak, because last week obstruction was demonstrated outside a court room. (2 Mick Mulvaney, Thursday CNN) And if you confuse this appraisal with buying a bridge, try “executive privilege” which indemnifies its carrier from cooperating with law enforcement whether answering subpoenas or turning over documents which are government property.
Two high-profile criminal investigations involving Donald J. Trump are converging on a single, highly consequential question: How much residual executive privilege can a former president invoke after leaving office?
As the Justice Department investigates both Mr. Trump’s attempt to overturn the 2020 election and his retention of sensitive documents at his Florida residence, his legal team has repeatedly claimed that he has retained power to keep information secret, allowing him to block prosecutors from obtaining evidence about his confidential Oval Office communications. (3)
Evasions of an insurrection organizer? Political cover for mob rule, as long as the mob’s boss is an elected President or his attendees?
Executive privilege can protect the confidentiality of internal executive branch information from disclosure. The Supreme Court first recognized it as a presidential power implied by the Constitution during the Watergate era, and only a handful of opinions have sketched out its parameters over the decades, in part because current and former presidents typically work out such issues in private.
The issue under debate in the two Trump cases, presidential communications privilege, can protect a president’s discussions with White House aides — or their interactions with each other — that relate to presidential decision-making. (4 also cite 2021 piece)
Well, what was going on in the courtroom last week?
Except for behind closed doors and removed from public scrutiny… not much.
So little in fact, that data digitizing firms paused the evidentiary process in the Mar-a-Lago suit because there was no guarantee that their services would be paid by the plaintiff.
“Executive Privilege” — which is being debated as a constitutional power granted to the executive branch in various courts — has forced prosecutors into a legal straight jacket. By not crossing the Rubicon of testing whether a sitting President can be indicted of a crime, (5 cite) one is left asking, what about ‘executive privilege’ of a former President, what about discussions with his staff, what about White House papers ‘Trump’ received, shared, filed?
Can one not claim the use of “executive privilege” in these ‘situations?’
Government prosecutors are facing two other dilemmas: urgency and specificity. ‘Urgency’ in the sense that delay and denial work to defuse recollection, so commitments to finding corroborating evidence are time sensitive: “I don’t remember” becomes an unassailable discussion stopper.
‘Specificity’ in the sense that separating ‘potential evidence’ from the process of evidence gathering poses the risk of losing the momentum to convince.’ What ends up being tested is the law ‘as applied:’ a ‘Goffmanesque world’ (6) where appearance subsumes reality.
In another ‘courtroom,’ that of the space in front of one’s cable TV screen, ‘we’ are being asked to suspend judgment, to look over our collective shoulder, to monitor how the words we use to tell ourselves that what is happening is real… that America’s governing institutions are being shredded.
One writer, an expert on the trajectory from democracy to autocracy, Masha Gessen, writes about absorbing the news that Secretary of Education, Betsy DeVos was being held in contempt of court:
The difficulty with absorbing the news lies, in part, in the words we use, which have a way of rendering the outrageous ordinary. The secretary of education was held in contempt, and this astounding event was narrated in normalizing newspaper prose: probably the strongest description called it an “exceedingly rare judicial rebuke of a Cabinet secretary.” This could not begin to describe the drama of a cabinet member remaining unrepentant for her agency’s seizure of assets from people whom it had been ordered by the courts to leave in peace — sixteen thousand people. And even when we could find the words to describe the exceptional, barely imaginable nature of Trumpian stories, that approach could not scale. How could we talk about a series of nearly inconceivable events that had become routine? How do we describe the confrontation of existing government institutions with a presidential apparatus that want to destroy them? (7)
And we are suspending our suspicion of “executive privilege” as a method of shielding Trump from prosecution. Restoring trust in an independent political body has been an uphill slog for Congress because “executive privilege” is viewed by its Republican members as the political cover Republicans need to keep their political career intact. Even assuming Congress was legally capable of impeaching Trump, which the ‘McGahn agreement’ obviates, (8) impeachment of Trump was never a political alternative for the President’s party.
Regarding the Ginny Thomas imbroglio which resurfaced last week with an appearance before the J6 Committee, the committee walked into the same credibility issue: like Trump, Thomas ‘believes’ Trump won the election doesn’t expose her to indictment; it also doesn’t remove her testimony from continuing further investigation.
The point is not that Trump lost ALL suits contesting Biden’s election win, but that GINNY THINKS that Trump won the election.
The emphasis is on Ginny, not verisimilitude.
It’s continuing the con; it’s the ‘show must go on,’
Consider that Stewart Rhodes and OathKeeper’s defense in the January 6 sedition trial rests on interpreting a Trump tweet as a patriot’s call to arms.
The insurrection must be fought.
Consider a Trump appointed Supreme Court Justice’s opinion that “executive privilege” protects a former President despite the erosion of a current President’s authority:
(But) the majority left unaddressed whether there were circumstances in which a former president’s claim of privilege could override the incumbent’s. Justice Brett M. Kavanaugh, in a concurring opinion, insisted that there were.
“A former president must be able to successfully invoke the presidential communications privilege for communications that occurred during his presidency, even if the current president does not support the privilege claim,” he wrote. “Concluding otherwise would eviscerate the executive privilege for presidential communications.” (9)
“Executive privilege,” as invoked on Trump’s behalf must not be surrendered.
October 4
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