David Roth, Making sense of Donald Trump’s petulant reign:
The spectacle of expert analysts and thought leaders parsing the actions of a man with no expertise or capacity for analysis is the purest acid satire—but less because of how badly that expert analysis has failed than because of how sincerely misplaced it is. Trump represents an extraordinary challenge to political media precisely because there is nothing here to parse, no hidden meanings or tactical elisions or slow-rolled strategic campaign. Mainstream political media and Trump’s opponents in the Democratic Party conceive of politics as chess, a matter of feints and sacrifices and moves made so as to open the way for other moves. There’s an element of romance to this vision, which is a crucial tenet in a certain type of big-D Democratic thought and also something like the reason why anyone would need to employ a political analyst. But Trump is not playing chess. The man is playing Hungry Hungry Hippos.
Helpfully, from Rick Santorum, we learned last night that treasonous language is just fine if you are speaking colloquially.
In case you have forgotten the meaning of “santorum,” you will find the answer here.
The Legal Significance of a Formal Impeachment Inquiry
I begin with a short message for anyone who couldn’t slog their way through my long talk on the constitutional law of congressional investigations. First of all, I feel your pain. Second, here’s the bottom line, that comes in last few paragraphs of my talk: after some days of legal research, I now see a tangible legal benefit to initiating an formal impeachment investigation. There may or may not be a countervailing political argument against that course of action. Both things could be true at the same time: impeachment might hurt the Democrats politically, but help them legally. Be that as it may, I think the potential legal benefit of formal impeachment proceedings is big enough to take into consideration.
Accepting Political Help from Furriners
This morning, everybody is talking about the Stephanopoulos interview. For the record, I join with everyone else in feeling shocked, stunned, and deeply saddened by Trump’s remarks. But, on a more practical note, Trump has business interests in at least 25 foreign countries, as shown on the map above. any of them would rather not see him reelected.
Foreign countries, if you’re listening, now’s the time to look at Trump’s businesses, and dish the dirt on The Donald.
Readers interested in the matters addressed in my two immediately prior posts—relating to Congress’s right to investigate Trump—will probably want to read the take of George Conway and Neal Katyal. Their tone is a bit more rhetorical than mine, but their views complement my own. They agree with me that the courts should rule that Congress can investigate Trump’s wrongdoing, whether or not it’s considering impeachment. That said, they also say that, in the brief to the Second Circuit, the Trump legal team is effectively urging the Democrats to start impeachment proceeding.
I don’t know whether Messrs. Conway and Katyal share my view that goading the Democrats into impeachment would be a truly boneheaded move on Trump’s part.
I suspect they do.
June 12, 2019
Judicial Review of Trump’s Efforts to Block Congressional Investigations
Arius A. Aardvark
Remarks to the Happy Acres Progressives
Good afternoon. My topic is judicial review of Trump’s efforts to block congressional investigation of his misconduct or alleged misconduct.
By one count, there are at least twenty ongoing congressional investigations at issue. The number of people and entities receiving demands for information runs into the hundreds. Each of these hundreds of information demands could generate a lawsuit—given Trump’s blanket objection to investigation by the House of Representatives. And, as you know, some lawsuits have already been started. And a House resolution, passed a couple of days ago, clarifies the right of individual House committees to bring these cases.
To be a little more specific about the kinds of things that the House of Representatives is investigating:
One. The Mueller Report has teed up the question of whether Trump’s obstruction of justice merits impeachment. Attorney General Barr says there is no prosecutable case for obstruction. Over a thousand former federal prosecutors have said there isa case. Who’s right? And, regardless of criminal legal technicalities, does Trump’s obstructive conduct merit his removal from office? And, does the House have the right to pursue and expose Trump’s obstructive conduct, even if it chooses not to pursue impeachment?
Two. On the question of Trump’s cooperation in Russia’s efforts to get him elected, Mueller found there was insufficient evidence of criminal conduct by Trump and his campaign. But that conclusion arose in part from the success of the obstruction of justice. Lots of questions remain about Russian interference in 2016, and what should be done legislatively to address the issue going forward.
Three. Mueller chose not to address counterintelligence matters, including whether the Russians have some hold over Trump, and whether he is a witting or unwitting tool of Russian intelligence. Ditto the question of whether the Saudis, or other bad actors, have a hold on Trump, either through financial dealings or through blackmail.
Four. There are a variety of inquiries about misuse of presidential powers to enrich himself, including questions about violations of the Emoluments Clause.
Five. There are grave issues about the conduct of foreign policy, notably the highly suspicious secrecy of Trump’s repeated meetings with Putin.
Six. There are House investigations of a more conventional nature, involving development of public policies, for example, on family separation, Puerto Rico aid, Obamacare repeal, and the declaration of a national emergency over the border wall. Just today, Trump has asserted executive privilege to try to block inquiry about the citizenship question in the 2020 Census.
And Seven. There are a variety of miscellaneous questions, including violation of the statute permitting Congress to demand Trump’s tax returns, impropriety in the granting of security clearances, and other matters.
Procedure and Substance
Today, I want to emphasize issues of substance over issues of procedure. But I’ll say just a few words about procedural matters. First, many procedural issues are complex and controversial, especially as concerns Congress’s power to hold a witness in contempt. But an alternative, and procedurally straightforward, way for Congress to act is to bring a lawsuit in federal court demanding that a witness comply with a subpoena. If the witness defies a court order, then she may be punished for contempt of court.
Another scenario arises where a witness is willing to comply with a subpoena, but Trump files a lawsuit in federal district court to block compliance. In recent days, Trump has lost two such cases—a case in Washington, DC, involving a subpoena to his accountants and a case in New York about subpoenas to his lenders, Deutsche Bank and Capital One. Both cases are on appeal. The appeals are fast tracked in both federal courts, and both of them will probably issue rulings about six or seven weeks from now.
If Trump loses these two cases in the appellate courts, as I believe he will, then an emergency appeal from the D.C. court would go first to Chief Justice Roberts, and an emergency appeal from the court in New York would go to Justice Ruth Bader Ginsburg. Trump would request a stay of the orders for his accountants and lenders to comply with congressional subpoenas.
As I said, all this will probably happen around the beginning of July, when the Supreme Court is on summer break till the end of September. But Chief Justice Roberts and Justice Ginsburg will confer with their colleagues by phone and email. Meanwhile, even though the Court is on summer recess, Trump can go ahead and submit the paperwork asking the Court to take the appeal and hear the case—that’s, issue a writ of certiorari, in lawyer speak. Probably, the Court will formally decide whether to take the take the appeal at a conference on September 29. But they can and will confer informally over the summer.
Bottom line: if at least four justices want to hear Trump’s appeal, then the Supreme Court will probably postpone compliance with the subpoenas until the case is briefed, argued, and decided on the merits—maybe around Christmas this year. On the other hand, if at least six out of the nine justices want to let the lower court rulings stand without further Supreme Court action, then the Court will probably deny the stay, and the subpoenas will become enforceable sometime in August or September.
I’m going to turn now to the substantive rules that apply to judicial refereeing of controversies over the limits of Congress’s ability to investigate the President and exercise general oversight over the executive branch. Please remember that these are judge-made rules, and the Supreme Court can unmake them, provided any five justices act together.
Any five justices could accomplish that goal by specifically declaring that such and such an earlier case was wrongly decided. Or, if so inclined, they could deliberately distort, misread, and fail to follow binding precedent, so as to give Trump a break.
[Discuss handout on substantive principles]
The handout we have just been discussing is available online at my political blog, trumpedprogressives.com, as will a copy of this talk.
Having looked at what the legal rules are—unless and until five Supreme Court justices decide to change them—I want to do a thought experiment in the form of a role playing exercise. Here it is.
Assume my blogging alter ego—Arius A. Aardvark, Esq.—has been retained by President Trump to give a second opinion on how likely Trump is to succeed in his effort to block all congressional investigations.
With that scenario now in mind, attorney Aardvark speaks.
Good afternoon, Mr. President. I understand that you would like a fresh legal perspective on the legal issues surrounding your effort to avoid all congressional oversight and fact finding and to hide any information that might damage your chances for reelection or put you in legal jeopardy. I am honored to serve you, and thank you for advance payment of my substantial retainer. My bank has just now confirmed that your check has cleared.
Mr. President, now that my fee is in the bank, I am on your side, and I am here to help you protect your interests. But achieving these goals requires that I be candid and blunt. I am bound to give you as objective an account of the strengths and weaknesses of your case as I possibly can give. I hope you understand that.
Mr. President, consistent with your direction to your legal team to, and I quote, “oppose all the subpoenas,” end quote, your lawyers have vigorously argued that you are not legally obligated to cooperate with any of the ongoing House investigations.
To support that claim, your attorneys have been compelled to take legal positions that are contrary the relevant Supreme Court and other precedents—and that would alter, in a profound and consequential way, our understanding of constitutional separation of power.
Your lawyers have argued that Congress has no power to investigate you, because Article I of the Constitution gives Congress no such power. But, time and again, the courts have rejected that position, ruling instead that the implied power to investigate flows from the powers specific in the Constitution, including the power to legislate, appropriate, and impeach.
Your lawyers have argued that political motivations on the part of House Democrats justify your non-compliance with demands for information. But, time and time again, courts have rejected that argument, too. Instead, current, well-established case law says that where an investigation has a logical relationship to a power that Congress could exercise, then the courts will refuse to second-guess Congress by examining the alleged motivations or biases of particular congressmen.
Now, Mr. President, there is a metaphysical possibility that your legal team can persuade five Supreme Court justices to change these rules, or just to disregard them. I make no predictions in that regard. But I do say this: in my professional judgment, it would be highly imprudent for you to plan your affairs on the expectation that a majority of the Supreme Court will fundamentally reorder the scheme of constitutional checks and balances, in order to meet your personal legal and political needs.
Let me say just a little more about why I reach this conclusion. It’s not based on any judgement, positive or negative, about the moral character of the five Federalist Society justices, including the two you appointed. Instead, I rely on these considerations.
First, the Federalist Society is the Federalist Society, not the Divine Right of Kings Society or the Autocratic Rule Society.
Second, the Federalist Society—which coopted you to appoint judges they selected—is not founded on loyalty to you as an individual, but rather on loyalty to its donors, such as the Koch Brothers and the United States Chamber of Commerce, and to the class of society whose interests they represent.
The Federalist Society may have a short-term interest in helping you to get reelected—provided that goal is feasible at all—but they also have a long-term interest in refashioning our legal system in a way that protects rich people and keeps them rich. These interests may conflict, because rulings that are too obviously biased might tend to rob the Supreme Court of its remaining legitimacy.
And, do please remember that these are judges for life. Unlike Republican senators, these folks don’t have to worry at all about the next election. And if you ever launch a nasty tweetstorm against them, all it’s going to do is to royally piss them off.
All that said, you probably have some Supreme Court justices who would love to call the balls and strikes in your favor. But, as I will explain in a moment, they need your help to be able to rule in your favor without too much embarrassment.
Now I want to give an overview of the legal rules. And, for clarity, I want to divide the multiple House of Representatives investigations into two broad categories.
The first of these are investigations about matters of public policy, such as your family separation policy, your emergency declaration on the border wall, the citizenship question in the Census form, and a number of other issues of policy.
The second category of investigations relate to your personal conduct, including allegedly improper conduct with the Russians, obstruction of justice, and violation of the Emoluments Clause.
I turn now to the first general category: investigations relating to public policy. As I have said, dispositive case law tells us that all these areas are appropriate subjects for congressional investigation. Thus, any blanket objection on your part is unlikely to succeed. That said, you have asserted “executive privilege” in connection with these public policy issues, and there may be a certain validity to your arguments.
The law on “executive privilege” is relatively sparse and undeveloped, but the cases we do have tell us that it applies to communications directly between you and your staff, and maybe a little further—for example, to a draft memo for you prepared by someone who reports to one of your aides.
Let me give an example. The Democrats are looking for some hypothetical document or conversation in which you say, in words or substance, “I am all in favor of torturing little Hispanic kids, and I don’t care a whit about basic human decency if I can keep those brown skinned people out of our country.” If they found such a hypothetical communication, they would seize on it for political gain, they might seize on it to justify new legislation, and they might add it to a laundry list of so-called impeachable offenses.
The cases recognize a limited executive privilege, but they also recognize the right of Congress to investigate how the laws are being applied and enforced. So, there’s a clash of competing principles.
The courts have the power to referee these kinds of clashes between Congress’s right to investigate and the President’s right to confidentiality. But it’s hard to find a principled way to resolve the conflict, and the courts would much rather dodge the issue and encourage the two sides to work out an ad hoc compromise. Where that doesn’t work, in the end, the courts will have to weigh and balance the two sides’ interests against one another. And, since there is no coherent way to do that, the courts will do it in ways that are unpredictable and incoherent.
All that may get you some legal mileage on the public policy investigations. But, all that said, if anyone has said that you have absolute and unquestioned power to assert executive privilege, then they have told you a lie, and it would be very unwise of you to believe them.
And one more point. Based on existing, yet sparse, case law, I think you have a pretty strong case to invoke executive privilege to prevent disclosure of communications with foreign leaders, including Mr. Putin, at least during your time in office. The Democrats will argue about the suspicious circumstances, and they might well win. But, at least, a judge inclined to give you a break could do that very thing without embarrassing herself, based on prior precedent.
Now, let me turn to all the other investigations—obstruction, Emoluments, the alleged possibility that you are comprised by blackmail material in the hands of various bad actors, etc. etc. As to these matters, my objective professional opinion is that your efforts to assert executive privilege are in deep doo-doo. (Subject to all the points I have made about Federalist Society justices) I think the courts are likely to rule that executive privilege does not apply to conduct before you were elected president, it does not protect criminal or fraudulent conduct, it’s subject to waiver, and you have in fact waived it in respect of the matters Mueller investigated.
Finally, insofar as any executive privilege remains, the cases still say that it may be overcome by a showing that the information sought is important evidence in a legitimate congressional investigation, and the information is not otherwise available to the investigator.
That’s executive privilege, and that’s the gist of what I have to say about it. But in the two pending cases—the ones about your accountants and your lenders—you and your lawyers have not asserted executive privilege. Nor could you have made a plausible claim of executive privilege.
What your lawyers have argued is that Congress has no legal right to investigate these matters in the first place. To be a little more specific, they have emphasized that a congressional investigation has to relate to a legitimate subject of possible legislative action. Now, Mr. President, the House of Representatives has the right to impeach you, which is analogous to a grand jury returning an indictment. And, in my judgment, it’s highly probable that the courts—including one or more of the Federalist Society justices—would hold that the House has a very broad power to investigate any alleged wrongdoing on your part.
However, your lawyers have argued that Speaker Pelosi has ruled out impeachment, that impeachment is not “on the table,” and that the courts should not consider possible impeachment when deciding on the permissible scope of current investigations.
Instead, they say the courts should apply the general principle that the House cannot investigate just for the sake of investigating, and that it has no general power to expose just for the sake of exposure. Now, from that point on, your lawyers’ arguments go deep into the legal weeds, and I don’t think it’s useful, in this discussion, to follow them down every single legal rabbit hole. Let’s keep focusing on the big picture.
My bottom line: I wasn’t impressed at all with the legal job your lawyers did for you before the district courts, but now that the accountant case and the lender case are on appeal, your team seems to have added someone who knows how to write a legal brief—someone who really knows how to make the other side jump through every single hoop. So, score one for you.
On the other hand, even if we put impeachment to one side, in my professional judgment, Mr. President—despite the fine, fine job your lawyers have done in trying to hide the pea under the shell—they are, legally speaking, swimming upstream. They are trying to reverse more than a century of precedent and understanding about the wide scope of congressional power to inquire into wrongdoing. I do not believe they are going to persuade the federal appellate courts in New York or Washington.
And, when the cases get to the Supreme Court, ruling in your way is going to be a stretch for Chief Justice Roberts, and for Justices Alito, Gorsuch, Kavanaugh, and Thomas.
But, now, let me add yet another complication. I was going to compare your legal situation to three-dimensional chess. But, probably, an even better comparison is to the six blind men and the elephant. You remember: one blind man grabbed one of the elephant’s legs and thought he was holding a tree, the second grabbed the tail and thought it was a rope, and so forth, and so forth. Well, Mr. President, what I detect is a lot of people—of both political parties—who grasp one piece of the situation but cannot see it as a whole.
So, here’s the thing. I think the Democrats might well win even if impeachment is not “on the table.” But if they do choose to pass a resolution starting the impeachment process, I think they will improve their legal prospects, to a material degree. Now, Mr. President, I’m choosing my words very carefully, and I said “to a material degree.” By which I mean something like, “by enough so that a prudent, well counseled person, would conclude it’s enough to take into account.”
And, to be more specific, I think that if the House argues that it is seriously considering whether or not to impeach you, then it will be a whole lot more difficult for the five Federalist Society judges to find an excuse to rule in your favor, without fairly severe embarrassment.
And, don’t forget the time factor. If the courts pretend the case isn’t about impeachment, then those of them who are inclined to slow walk the proceedings can likely get away with it. Where’s the fire? What’s the big hurry if the House has to wait till 2020 before getting to see your accountant’s documents? But if impeachment is“on the table,” things could look quite different.
At least that’s how I see it. I freely admit that the situation is fluid and complex, and it’s very hard to know what will happen. But, Mr. President, my name is Arius Aardvark, not Rosy Scenario. I owe you my best candid professional judgment, and that is what I have given.
At this point, many on your team seem to be goading the Democrats to go down the impeachment road. Sometimes, you seem to be thinking along the same lines—the underlying assumption being that the Democrats would be committing the same political mistake the Republicans made against Clinton. Now, personally, I think that political analysis may be unsound, but that’s largely outside my scope of expertise, so I don’t express an opinion.
What I do say is that if there is really bad stuff you want to hide from the Democrats—hopefully, for all time, but certainly past November, 2020—then, in my professional judgment, it would be highly imprudent of you to goad the Democrats to impeach you. Because, to repeat, if the Democrats say they are thinking about impeaching you, then they are materially more likely to get the underlying bad information, and materially more likely to get the bad facts on a fairly timely basis.
Now, if there’s no more bad stuff out there, then it’s no nevermind. Let the House impeach. Let you and the Republicans get whatever political benefit results from a failed effort to remove you from office.
On the other hand, if there really is lots of bad stuff still undiscovered, then you really need to think long and hard about a legal strategy that pushes the House toward impeachment.
Mr. President, it’s your call.
Have a nice day.
… What do the Cases Say?
Modern case law on the limits of congressional oversight has evolved into a fairly coherent body of principles. The Supreme Court and other precedents are much more consistent with one another than is true in other areas of constitutional law.
It is likely that at least some of the Supreme Court justices will apply these principles rationally and in good faith to Trump’s blanket objections to oversight. But it is at least theoretically possible that a majority could choose to disregard established precedent. They might do this overtly, by identifying previous cases as wrongly decided. Or they might act in bad faith, deliberately misinterpreting and misapplying the precedents. That, we cannot control or reliably predict. But we can say with some confidence what principles may be distilled from the many Supreme Court and other judicial decisions that have addressed legitimate congressional investigation and oversight of the executive branch.
The General Rules
- The Power to Investigate as an Implied Power of Congress.Article I of the Constitution says nothing about Congress’ right to investigate or exercise oversight. Accordingly, it has sometimes been argued that Congress has no such power. The Supreme Court has, however, repeatedly rejected this argument. Instead, the cases tell us that the two houses of Congress, acting through their committees, have broad power to conduct fact-finding relevant to their legitimate functions. These legitimate functions include:
- deciding whether there is a need for legislation on a particular topic and, if so, what form the legislation should take (including “surveys of defects in our social, economic or political system for the purpose of enabling Congress to remedy them”)
- deciding what money should be appropriated for what purposes
- general oversight of the executive branch (Congress’ power “to inquire into and publicize corruption, maladministration or inefficiency in agencies of the government”)
- impeachment (House of Representatives) and removal from office (Senate)
- approval or disapproval of the President’s acceptance of foreign emoluments.
- The Implied Power to Compel Testimony and Information.The cases are crystal clear that effective information-gathering implies the power to compel testimony and document production from witnesses.
- Courts as Final Arbiters of Legitimacy of Investigations.Each branch of government is entitled, even duty bound, to interpret the Constitution, but where branches differ, it is the courts that have the final say.
- “Bad Motive” as a Defense to Investigation?An investigation that is reasonably related to a legitimate congressional function may not be resisted on the ground that members of Congress are biased or acting out of political motives. The principle of separation of powers—and, in particular, the Constitution’s Speech or Debate Clause—require that claims of inappropriate congressional motivation be disregarded by the courts, where it appears on the face of things that an investigation has a reasonable relationship to a legitimate legislative purpose.
Exceptions, Qualifications, and Limitations to the General Rules
A. No Power to Conduct Investigations Unrelatedto Legitimate Functions of Congress.Congress does not have unlimited power to inquire into any matter it chooses, including the private business affairs of individuals it thinks may have behaved unlawfully or otherwise objectionably. Exposure, merely for the sake of exposure, is not allowed. But the courts must rebuttably presume that Congress is using its investigative powers in good faith.
Note: persons accused of aiding government corruption commonly claim they are being investigated by their political enemies for the mere sake of exposure. Such claims are generally rejected. But the core of Trump’s argument in the accounting case is that Congress has no valid legislative purpose in attempting to find and expose illegal business conduct. A closely related argument is Trump’s claim that Congress is impermissibly trying to act as a law enforcement agency (see point D, below.)
The House of Representatives clearly has the constitutional power to impeach—a function similar to that of a grand jury. It’s likely that the courts would say that, in dealing with impeachment, the House has wide investigative powers similar to a grand jury. But Trump’s lawyers make a big deal out of the absence of any House resolution authorizing an impeachment inquiry.
B. Inquiries Must be “Pertinent” to the Exercise of the Legislative Function. Even if an investigation is lawful and the witness in question is lawfully before Congress, he or she may still object if specific information being sought is not “pertinent” to the investigation.
In litigation over the “pertinency” of a particular question, the presumption of innocence carries more weight than the presumption of “pertinency.” That means, the government bears the burden of proving that the question posed was indeed “pertinent” to the investigation.
Comment: in view of points A and B, it would appear that a statute requiring disclosure of any citizen’s tax returns to Congress could, in principle,be applied in ways that would unconstitutionally exceed Congress’s right to investigate.
C. What if the Possible Legislation Being Considered would be Unconstitutional?Then the investigation might be deemed improper, and the witness might be excused from testifying. But, of course, a court should be mindful that potential legislation could take many forms, and some of them might be OK.
Note: Trump advances based on this principle, claiming, for example, that, at least outside of impeachment, Congress may not enforce violation of the Emoluments Clause, and accordingly has no business investigating alleged violations of the Emoluments Claims or attempting to uncover Trump’s conflicts of interest.
D. Improper to Usurp Judicial or Executive Branch Functions. Congress may not perform the functions of a court or a prosecutor, except in the case of impeachment and removal from office. Nor may an investigation unduly interfere with ongoing criminal proceedings.
Again, miscreants subject to legitimate congressional investigations often invoke these arguments, generally without success.
As noted above, Trump’s lawyers lay heavy emphasis on their claim that, at least where impeachment isn’t on the table, the House has no legal ability to gather facts merely for the sake of exposing violations of law.
E. Potential Exposure of Crimes Not an Excuse for Failure to Comply.Notwithstanding point D, the possibility that a congressional investigation might uncover criminal conduct does not excuse a witness from complying with an otherwise proper demand for information.
F. Congress Must Respect Individual Civil Rights.And, notwithstanding point E, a witness may legitimately object to a violation of his Fifth Amendment right not to incriminate himself. Similarly, even in a proper investigation, Congress may not violate other civil rights, such as free speech, freedom of the press, and freedom of association, and freedom under the Fourth Amendment to be free of unreasonable searches and seizures.
Note: issues arising under point F often call for a court to weigh and balance the rights of the individual versus Congress’s need for information. For example, courts are skeptical about claims of “chilling” free speech or about invasion of privacy.
G. “Privileges” as a Defense for Noncompliance. This area of case law is less developed, and more uncertain, than the principles discussed above.
a. The Attorney-Client Privilege. Lawyers for Congress have claimed that the attorney-client privilege, a rule of evidence that applies to court proceedings, does not excuse compliance with congressional demands for information. But the principle has seldom been tested in court, and congressional investigations have often respected legitimate assertions of attorney-client privilege.
b. A Broad “Deliberative Process Privilege”?Some presidents, including Reagan and Obama, have asserted a broad privilege against disclosure of communications within the executive branch, but these broad assertions haven’t received any definitive judicial treatment. In addition, Reagan and Obama spokesmen recognized that such a broad privilege could not shield corrupt or fraudulent conduct.
c. A Narrower “Executive Privilege.”Several important decisions recognize a rather narrow executive privilege—shielding communications between the president and her advisers—where 1) the protected communication was written, solicited, or received by the president or by one of her close advisers and 2) the communication relates to a core presidential power, such as the pardon power or the power to conduct foreign policy.
d. The Executive Privilege is a Qualified Privilege against Disclosure. The privilege may be overcome where the information sought is important evidence in a legitimate investigation and is not overwise available to the investigator.
e. A Crime/Fraud Exception to Executive Privilege?A client may not hide behind attorney-client privilege if the topic of his conversation with his lawyer is an ongoing crime or fraud.
I think it’s likely that a court would apply the same rule with regard to executive privilege.
f. “Waiver” of Executive Privilege.Where partial disclosure has been made, a court will rule that any attorney-client privilege has been waived. The underlying thought is that it’s unfair to let a client disclose all the good facts while hiding all the bad facts about his dealings with his lawyer.
It’s likely, in my view, that the courts would apply the same limitation to any assertion of executive privilege.
Principles distilled from Anderson v. Dunn, 6 Wheat. 204 (U.S. 1821); Kilbourn v. Thompson, 102 U.S. 168 (1880); McGrain v. Daugherty, 273 U.S. 135 (1927); Sinclair v. United States, 279 U.S. 263 (1929); Townsend v. United States, 95 F.2d 352 (D.C. Cir. 1948); Tenney v. Brandhove, 341 U.S. 367 (1951); United States v. Rumely, 345 U.S. 41 (1953); Quinn v. United States, 349 U.S. 155 (1955); Watkins v. United States, 354 U.S. 178 (1957); Tenney v. Brandhove, 341 U.S. 367 (1951); United States v. Rumely, 345 U.S. 41 (1953); Quinn v. United States, 349 U.S. 155 (1955); Watkins v. United States, 354 U.S. 178 (1957); Barenblatt v. United States, 360 US. 109 (1959); McPhaul v. United Statess, 364 U.S. 372 (1960); Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968); United States v. Nixon, 418 U.S. 683 (1974); Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975); McSurely v. McClennan, 521 U.S. 1024 (D.C. Cir.1975); Nixon v. Administrator of General Services, 433 U.S. 425 (1977); Exxon v. FTC, 589 F.2d 582 (D.C. Cir. 1978); United States v House of Representatives, 556 F. Supp. 150 (D..C.C. 1983); Senate Select Committee on Ethics v. Packwood, 845 F. Supp. 17 (D.D.C. 1994); In re Sealed Case (Espy), 121 F.3d 729 (D.C. Cir. 1997); Judicial Watch, Inc. v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004); Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53 (D.C.C. 2008); Comm. on Oversight and Reform v. Holder, 979 F. Supp. 2d 1 (D.C.C. 2013); Bean LLC v. John Doe Bank, 291 F. Supp. 3d 34 (D.D.C. 2018); Trump v. Comm. on Oversight and Reform (D.D.C. 2019); Trump v. Deutsche Bank AG (S.D.N.Y. 2019).