When Can the President Claim Executive Privilege?
Now that Special Counsel Robert Mueller has submitted the findings from his investigation into Russian interference in the 2016 election, many are wondering, what will happen next? John Yoo of Berkeley Law School and Steve Vladeck of University of Texas Law School detail the possible scenarios and examine how the president and Congress might respond—focusing on potential executive privilege claims by President Trump. They also consider how President Trump might claim executive privilege in other contexts—like the House obstruction inquiry, a possible impeachment probe, attempts to prevent release of notes from his Helsinki meeting with Vladimir Putin, or in pending civil lawsuits against him. Jeffrey Rosen hosts.
Note: This podcast was recorded on Wednesday, March 20th, before the news broke (on Friday) that the Mueller report was completed.
John Yoo is the Emanuel Heller Professor of Law at Berkeley Law School where he is also the director of the Korea Law Center, the California Constitution Center, and the Program in Public Law and Policy. Yoo is a visiting scholar at the American Enterprise Institute and a visiting fellow at the Hoover Institution. He previously served as general counsel of the Senate Judiciary Committee and as a deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice.
Steve Vladeck is the A. Dalton Cross Professor in Law at the University of Texas School of Law. He is a co-author of Aspen Publishers’ national security law and counterterrorism law casebooks, and a senior editor of the Journal of National Security Law. He is also CNN’s Supreme Court analyst, co-editor-in-chief of the blog Just Security, and co-host of the National Security Law podcast. He is the co-author (with Mike Ramsey) of the Interactive Constitution explainers on the Commander in Chief Clause and the Declare War Clause.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
- United States v. Nixon (1974)
- Clinton v. Jones (1997)
- Summer Zervos v. Donald Trump (N.Y. App. Div. 2019)
- “Primer on Executive Privilege and the Executive Branch Approach to Congressional Oversight” by John E. Bies, Lawfare (2017)
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Commander in Chief Clause by Michael D. Ramsey and Stephen I. Vladeck
This episode was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Lana Ulrich, Jackie McDermott, and Megan Murphy.
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Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan, nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. As the Special Counsel, Robert Mueller, reportedly wraps up his investigation into Russian interference in the 2016 election, many wonder what will happen when the report is completed? If the Attorney General releases the report, might the President try to block its release by invoking executive privilege? What is the scope and history of executive privilege? Does it apply to pre-presidential conduct? Does it apply to civil suits? All of these important constitutional questions are the ones we'll be discussing on today's podcast on executive privilege and the Constitution.
Here to discuss these crucial questions are two of America's leading scholars of presidential power, two great friends of We the People podcast? John Yoo is the Emanuel Heller Professor of Law at Berkeley Law School where he is also the Director of the Career Law Center, the California Constitution Center and the Program in Public Law and Policy. John, thank you so much for joining us again.
John Yoo: [00:01:20] Thanks, Jeff, great to be with you.
Jeffrey Rosen: [00:01:22] Steve Vladeck is the A. Dalton Cross Professor in Law at the University of Texas School of Law. He is also CNN Supreme Court analyst, Coeditor in Chief of the blog Just Security and Cohost of the National Security Law podcast. Steve, it's great to have you with us.
Steve Vladeck: [00:01:39] Thanks, Jeff, great to be back with you.
Jeffrey Rosen: [00:01:41] Let's start with the basic question, what is executive privilege? How is it rooted in the constitution, and how have past presidents invoked it? John, why don't you start us off?
John Yoo: [00:01:54] Sure, Jeff. Executive privilege refers to the idea that the President and perhaps the executive branch as a whole have a right to keep confidential its meetings and records from the other branches of government, either from a lawsuit or from a congressional subpoena. It was really claimed first by Thomas Jefferson during the Aaron Burr treason trial, the great controversy where Aaron Burr actually tried to get part of the United States to detach itself in Louisiana and make himself King and he was arrested and brought back and was put on trial. The trial judge was John Marshall, the great Chief Justice you've talked about a lot before Jeff. John Marshall wanted evidence that Burr claimed he needed to prove his innocence about discussions with Jefferson, and Jefferson claimed executive privilege. Ever since then, presidents have claimed it, have withheld information, but the Supreme Court didn't really bless the idea until the Watergate tapes case, Nixon v. United States, where the court actually said that President Nixon had to turn over his tapes of his own conversations to a court. But said also that there was some constitutional right of the President to withhold information when it came to matters like a national security, law enforcement, diplomacy. But for everything else, the court was very vague and said, “There's be a balancing test where we'll ask about the need of the other branch for the right for the President for secrecy. Because of that, we're still I think in a vague morass about executive privilege whenever fights like the Barr report come up or forcing people to testify before Congress come up.
Jeffrey Rosen: [00:03:48] Steve, your thoughts about the history of executive privilege and tell us more about the U.S. v. Nixon case, which recognized both a deliberative process privileged and a presidential communications privilege, what's the difference between them and how has that played out?
Steve Vladeck: [00:04:05] Sure, I think John's exactly right to stress just how infrequently the Supreme Court, really the courts, in general, Jeff has actually had to flush out what the executive privilege is, what it does and doesn't protect. Part of that's because most fights over executive privilege happen outside the courts, and really are resolved in most cases between Congress and the executive branch. We often see complicated negotiations where the executive branch agrees to hand over some of what Congress is seeking instead of all of it. Nixon, as John mentions, is the first time the court recognizes the privilege and I think it's pretty much the consensus that Nixon was very much a compromise opinion where in order to preserve the unanimity of the Justices, the more progressive justices agreed to recognize executive privilege and trace it to Article II of the Constitution in exchange for the more conservative justices agreeing in a whole that it was only a qualified privilege.
That it could be overcome in particular cases and that, indeed, in the context of the special prosecutor's subpoena for the Watergate tapes that actually was overcoming that context. The D.C. Circuit, Jeff, I think, is really the principal judicial interpreter in executive privilege given that the Supreme Court hasn't subsequently weighed in. The D.C. Circuit recognizes, as you said, two species, executive communications basically where you've got specific communications between the President and one of his officers, one of his staffers, one of his subordinates. Where the privilege is protecting the confidentiality of the communication itself. And then something more akin to the deliberative process privilege, where it's not about the specific words out of the President's mouth, but rather about the mechanics by which the executive branch arrived at a particular decision.
I think understanding the differences there helps to explain some of the case law where the D.C. Circuit has generally been completely willing to recognize the privilege but also not always bend over backwards to defer to the privilege. Where the different presidents have won some cases in the D.C. Circuit and they've lost some. I think that's a reflection of the Supreme Court really leaving it very much open to interpretation in 1974.
Jeffrey Rosen: [00:06:23] All right, we've put some of the case law on the table, you've both identified from the Nixon case these two categories of presidential communication privilege and the deliberative process privilege. We learn from John Baize's primer on executive privilege published in law fair in 2017. If there are other privileges including attorney-client communications privilege of the law enforcement information privilege, which piggy backs off of a 1984 Office of Legal Counsel opinion and says that executive privilege extends to ongoing investigations or sensitive techniques, methods or strategies. And, finally, a privilege that John referred to has historical roots, the military, diplomatic, and national security privilege, and that's rooted in Nixon as well.
Okay, now, let us turn to all of the really important questions that We the People listeners and I would love to hear the answers to. The first question is this, if Attorney General Barr decides not to release the Mueller report, can Congress subpoena it? John.
John Yoo: [00:07:31] This is obviously the hundred thousand dollar question.
Jeffrey Rosen: [00:07:35] Well, that's why I asked.
John Yoo: [00:07:36] First, we got to find out when that report's coming out because it (inaudible) . It is interesting because it doesn't fall within the presidential communication privilege. You're right, Jeff, and Steve, right to say the core of the privilege is the right of the president to talk to his or her advisors. Mueller, if anything, has never had a chance to talk to Trump however much he wanted to. Trump decided not to sit down for an interview, so that's not involved. If it's going to be a privilege at all, it would have to be under the law enforcement interest that Nixon talks about. Not Nixon the President, Nixon the case talks about because that's part of the President's article, two core responsibilities. But, again, the court said but it's going to be balanced against the right of the other branch. The interesting thing is, as Steve mentioned, if it comes down to these fights between Congress and the President, the courts really don't get involved much, they rarely want to step in, they're worried about the President or Congress both ignoring them.
I think if Trump were to claim privilege, what you'll see in the House, because it won't happen in the Senate which is controlled by Republicans I expect, but in the House, Democrats would use all the things we look at like oversight, funding, control over legislation. You start having to use political tools, I think, to try to wrench the report free. Now when it comes down to the politics of it, I expect Barr, Attorney General Barr would want to publish it, to release it. I actually think Trump would be wise to waive their privilege and let it all come out because it's in his interests, I think, that Mueller, who I think is the gold standard of prosecutors. It sounds to me like if he clears Trump, if he doesn't find any collusion, that's great for Trump. Trump should release it.
Jeffrey Rosen: [00:09:36] Steve, if the Attorney General does decide to release the report, taking John's advice, and President Trump does invoke executive privilege, how might he fare in court?
Steve Vladeck: [00:09:51] Well, and I think it's worth stressing, Jeff, that the mechanics are going to matter here. Executive privilege is a shield, it's not a sword, and so even if the President were to try to assert executive privilege, that wouldn't necessarily stop Congress from, in addition to subpoenaing the report itself, subpoenaing Special Counsel Mueller, subpoenaing other potential individuals to come testify. Obviously, the President can stop a current executive branch employee from testifying before Congress just by saying, “If you testify, I'll fire you.” It's not actually clear that executive privilege would allow the President to block a former executive branch officer or employee from testifying if that person voluntarily wants to. I think there could be a really hard question if the government purports to withhold the report from Congress.
A report, by the way, that's mandated under the Special Counsel regulation, under 28 CFR 600.9, there could be a fight on the question of whether the report itself that Barr is supposed to provide is going to actually be released. I just think that Congress will have lots… I mean, John mentioned some of the ways Congress could basically incentivize release of the report by choking off other executive branch functions. I think there are other ways that Congress can get the exact same information out onto the public record, even if it's not the literal physical document that the Special Counsel ultimately sends to the Attorney General.
Jeffrey Rosen: [00:11:21] John, Steve mentioned the possibility of Congress subpoenaing Mueller. If Congress subpoenaed Mueller, could the President block Mueller's testimony by invoking executive privilege?
John Yoo: [00:11:34] This is a good question. First, I completely agree that if Barr or Trump refused to release the report, and Congress can effectively try to reconstruct the report They could bring all the same witnesses that Barr had testify and ask them basically the same questions, and they could try to, yeah, as you say, get other people who are involved in investigation to testify. I think it's always been the practice that the President and the executive branch have claimed the right to block former executive branch officials from testifying about matters which are privileged. The interesting question is more what would happen if someone defies it? For example, Jim Comey has testified repeatedly in Congress on matters which actually would fall within the direct communication privilege between the President. He's testified about things, actually, that he and Trump talked about.
Then he's also testified and spoken in public a lot about internal FBI and Justice Department discussions and consideration about whether to prosecute and who to investigate. These are all the matters that really are the core of the executive privilege. But if Trump tried to stop him, yeah, the question is what sanction could Trump pursue or the Trump administration or Justice Department pursue against him? He could probably pursue someone for leaking classified information, but I assume that the Mueller report would be scrubbed of all that. I don't actually know if Mueller showed up in a hearing and just brought a copy of the report with them and handed it over to Congress even though it might violate the privilege. I don't know what the executive branch could actually do to him in terms of a sanction to stop him.
Jeffrey Rosen: [00:13:28] Picking up on that, Steve, are there any other forms in which Mueller might try to release information about the investigation where Trump could invoke executive privilege to block testimony, interviews, and so forth, either by Mueller or by anyone else?
Steve Vladeck: [00:13:47] I think as, as John points out, I think we have plenty of evidence of former government employees testifying about matters that ought to have come within one of these privileges. Jeff, I think it's important to stress, we're all fixated, for obvious reasons, on the indictments that the Special Counsel has obtained to date and might still obtain going forward and the ultimate recommendations he may or may not make to Congress with regard to the President. I think it's worth keeping in mind that this investigation started as a counterintelligence investigation, not a criminal investigation. The reason why that matters, at least to me Jeff, is because separate from the report that Special Counsel Mueller has to file with the Attorney General under 28 CFR 600.8. The Special Counsel's presumably also going to have to report to the intelligence committees about the findings of the counterintelligence investigation.
I think I mention that because John mentioned the specter of potentially having classified information and national security secrets. I think that's the one place where you would see the strongest, I think, possibility of any opportunity on the part of the executive branch to actually prevent testimony from happening. Yet I do think that it is quite clear that Mueller is going to have to report in some form to the intelligence committees, even if behind closed doors. I just I can't imagine a court holding that executive privilege would allow the President to stop the Special Counsel from voluntarily complying with a subpoena from a House Intelligence Committee to testify behind closed doors on a matter within the scope of an investigation he carried out pursuant to the executive branch's own regulations. I just think a court's going to be very reluctant.
John mentioned earlier that courts are reluctant to get in the middle of these disputes in the first place, and I think especially where you have an individual who voluntarily wants to go before Congress and talk to them. It's going to be really unlikely, in my view, even if the privilege might abstractly protect the content of what the witness is testifying to that the courts would allow the President to use the privilege as a sword in almost any guise. The real lever for the privilege, historically, has been in blocking involuntary disclosures of documents. Where the executive branch doesn't want to comply with it, where the recipient of a subpoena doesn't want to comply, where the individual question does want to comply, whether the material might be privileged or not. Unless, as John says, it's a violation of the Espionage Act for disclosing national security secrets, I just don't see the President successfully stopping it.
Jeffrey Rosen: [00:16:21] Okay, if I hear you right, both of you have suggested that it would be hard successfully to invoke executive privilege to block voluntary testimony. Let's talk about involuntary testimony. Imagine the Congress in a house obstruction of justice inquiry or another inquiry subpoenaed Presidential Records such as notes from the President Helsinki meetings with President Putin. John, you've suggested that a subpoena for that information would not be justified, there's no justification that Congress or another branch can throw up which would allow the overcome of the privilege in this kind of case. And this invocation of executive privilege, you said, would be like stabbing a dagger into the presidency. Tell us why you believe that to be the case?
John Yoo: [00:17:09] Well, the hypothetical, and may not be so hypothetical before long but hypothetical you toss out would really bring the direct clash of constitutional interest directly into conflict. So that if you take Nixon's description of executive privilege seriously, then the President directly talking to heads of other countries. Now put aside to his or her cabinet members, you would think that would be the core of executive privilege. Remember, the point of it was so that the President can communicate freely, can discuss things candidly, which the court word would be inhibited and harmed. It will harm presidential decision making if everything could just immediately be brought out into the public. It seems to me the presidential interest in confidentiality would be really at its height when it comes to things like discussions with Putin or other foreign leaders.
Here, Congress could though say, “Look, there's a number of our,” excuse me, “number of constitutional functions we are involved with where we need to know that information too.” You could go start as innocently as we want to decide how much funding we have to provide to the State Department or what we want to do with appointments to Russia or what we want to do with foreign policy and sanctions against Russia and other countries. But make it even harder, suppose Congress says, “We need to know this information because we want to know whether to impeach the president?” Suppose some people in Congress think that President Trump is somehow indebted to or swayed by President Putin inappropriately. I think Congress would say, “Look, we need to get this information to carry out our function to investigate and decide whether to impeach a sitting president.”
I, personally, if I were trying to guess what the Supreme Court would do, assuming it got to the court, I don't think the court would, even in a case like that, narrow executive privilege so far that presidents can't speak candidly and secretly with the heads of other countries. Because I think if they took that step, then I think there really isn't really any executive privilege left.
Jeffrey Rosen: [00:19:31] Steve, same question to you, if Congress subpoenaed Presidential Records like the notes from President Trump's Helsinki meeting with President Putin, do you think that an executive privilege should or would succeed or not?
Steve Vladeck: [00:19:45] I think I generally share John's instinct that the President's personal private communications with foreign leaders ought to be at the heartland of executive privilege. Jeff, I would just stress that the executive privilege the Supreme Court recognized in Nixon is not an absolute privilege, and what qualifies it is not the specific context of the communication but rather the interest of the party seeking to uncover it. That is to say, in Nixon itself, it was the interest of the special prosecutor and having access to potentially inculpatory evidence against the seven criminal defendants in the Watergate case. We've never seen a case, Jeff, where courts have been faced with confronting a facially plausible or facially valid executive privilege assertion in juxtaposition with a claim from Congress that it's pursuing impeachment inquiries into the President.
I think we'd have to come to that, I think if it was just we want to know what happened in Helsinki so that we know how to fund the State Department, I think courts would balk at that and say, “No, that's not a sufficiently compelling justification override the privilege.” If, instead, Congress has some reason to believe that access to this information would provide material evidence in an impeachment inquiry, I think that's a much closer question. Part of why I think that's a much closer question is because there are plenty of folks out there, and I don't think I'm speaking out of school to say that John is one of them, who think there are real constitutional limits on the ability of a sitting President to be indicted. That the real mechanism for going after a President who we believe is no longer fit for office is impeachment.
Well, if you believe that, then it seems to me you ought to also believe that the Constitution allows Congress to conduct meaningful impeachment investigations. That's not to say a court would rule for say the House Judiciary Committee in a dispute over a subpoena for the notes of the Helsinki conversation. It's just to say that if that were the argument, the argument were we're moving down the track in an impeachment inquiry. We already have some evidence, we think that this evidence will corroborate the evidence we already have, I think it's a closer case at least then that I thought I heard John to say. I'm not sure it's so obvious that in the context of a qualified claim of privilege, the courts would automatically defer to the President in that context.
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Well, let's explore this question of the scope of the privilege and a potential impeachment or obstruction investigation. John, in what time period can the President claim executive privilege? Is it just for his presidential conduct or does it cover pre-presidential conduct? I'll say that our crack constitutional content team has found one district court case from Kansas in 2017 saying that a document created by Kris Kobach to share within President-elect Donald Trump was not covered by executive privilege since Nixon didn't extend the privilege to President's Elect. But the Supreme Court is not definitively willed on this question. What are your views about the timeframe in which executive privilege can cover?
John Yoo: [00:24:08] I think privilege and impeachment they kind of go together. At least, and again, as you plan this is really never been litigated with presidents. It has been litigated a little bit with judges but not presidents. I would think just looking at the language of the Constitution and the Federalist Papers commentary about it, that a person while they're President for actions they took as President, they can't be prosecuted or indicted while they're still in office. They can only be impeached. On the other hand, the executive privilege only applies, I think, two things that the President does and says while he or she's president. For a lot of the things that people have been talking about in the press and that you mentioned a little bit of is congressional investigations into the Trump Organization and payoffs and Michael Cohen and it just goes on and on and on.
All these scandals and grifters and also to the extent they took place before President Donald Trump took the oath of office, I don't think he gets executive privilege for any of that. Plus, I don't think he can be impeached on the basis of anything for that kind of conduct but I think he could be prosecuted for that. Now, the Federalist Papers actually talked about, well, what happens if there's a sitting president and he's been prosecuted? We went through some of this, Jeff, you remember, we went through some of this with President Clinton.
Jeffrey Rosen: [00:25:38] We sure did.
John Yoo: [00:25:39] Yeah, we went through a lot with President Clinton, so it's hard to forget. There's this case, Clinton v. Jones. This is an investigation of President Clinton for conduct before he was president, and the court says that it has to continue to go forward. Try to schedule it, guys, so trial judges, so that doesn't interfere with Clinton's conduct in the office. But the court refused to block a prosecution or a civil suit against the president for things he did before his presidency. They said, “You really don't have any kind of privileges there.” If people want to investigate and indict a President for things he or she did as President. The Federalist Papers talk about, written by Alexander Hamilton, talks about, “Well, what you do is you impeach the President, you remove the President, and then the President loses whatever immunity he or she has and can be then prosecuted and punished for their actions. But you're right, Jeff, to draw the line at things before your President are treated very differently than what you do and how the system treats you while you're president.
Jeffrey Rosen: [00:26:47] Steve, same question to you, do you believe that executive privilege covers pre-presidential conduct or not?
Steve Vladeck: [00:26:54] Yeah, no, I don't. I think John really hit the nail on the head as to why. I'll just stress Nixon itself, the Supreme Court talks about the privilege running to the office. Well, obviously, a president doesn't hold the office until he's inaugurated, until he's sworn in. Before that, it may be inevitable that he's going to be the President, but he's not the President for purposes of Article II. I think it's consistent, actually, with a view of the executive branch as being controlled from the top by a unitary officer. That, Jeff, there can only be one executive at a time. Until and unless the prior President, the incumbent President is out of office, I don't think privilege should attach to anything under the President-elect does. At least not the constitutional privilege recognized in Nixon.
Now, Jeff, if I may, I do think that there's a worthwhile conversation to have about whether Congress ought to, by statute, invest the President-elect with certain privileges and immunities and responsibilities by due to being the President-elect as Congress has, over the last 15 to 20 years increasingly formalized the functions of the President-elect. The existence of a formal transition team, the domain ptt.gov. We had this conversation in the context of the Logan Act, and whether the incoming administration is allowed to conduct what's effectively foreign policy even if that foreign policy is in contrast to the foreign policy of the current administration because it's clear that in two or three weeks they are going to be the administration.
My own view is that the answer ought to be, yes, but not as a matter of constitutional interpretation that Congress really ought to think carefully about how to govern the transition. Maybe one of the things to think about is whether it's some kind of quasi executive privilege ought to cover the President-elect once he is confirmed as the President-elect. We're not there yet, and I think that's what's going to matter for Trump.
Jeffrey Rosen: [00:28:50] John, you raised the question of Clinton and Jones and the President's lack of immunity to federal civil suits in that case. What about the President's immunity to civil court suits and state courts? A New York State judge in 2018 rejected President Trump's efforts to ban proceedings against him by a former apprentice contestant, Summer Zervos, rejecting the President's argument that state courts are different than federal courts and that the President was amenable to civil suits in both. Do you think that the Zervos decision was correct or not and what are its implications?
John Yoo: [00:29:37] Trump is raising all these things which used to be hypothetical in class. But I think it goes to the same point if you want to draw the point at which the President's privileges and whether he has immunities and his or her rights for confidentiality, they all have to do with when he or she takes office and leaves the office and their official actions are not. I think that anything the President does before he's taken or she's taken the oath is not covered by privileges and it's not covered by any immunities. I think things that the President does while in office, for example, writing checks to reimburse Michael Cohen for allegedly illegal campaign contributions. I don't think those are in the President's public capacity, those are the president in his private, his individual citizen capacity. I don't think those get protected by any kind of constitutional rights at all either.
I think what the court when it was faced with this question with the Clinton v. Jones, the balance it tried to strike was for these lawsuits that are going on while you're President for things you did before you were in office, we're not going to, the course is, we're not going to stop them. All we can do is to we recognize we acknowledge that presidents don't want to spend their time in office defending themselves from lawsuits that we are… This is actually an interesting argument that Jefferson first raised during the Aaron Burr conspiracy, he said, “Well, if I'm subject to subpoenas and lawsuits, I can be,” he said, “I could be dragged from one end of the country to the other for the rest of my presidency by people harassing me with lawsuits.” Funny thing is a court back in Clinton v. Jones said, “No, that's never going to happen.” But to the extent it could, the courts said, “Trial judge has to be sensitive and try to schedule. Use their power of the trial proceedings to schedule the cases, so they don't interfere with the President's conduct of the job.”
I could see a world where suppose all these states, New York State starts filing investigations and suits against Trump, and private parties do so and it just becomes a flood of litigation. At some point, you could see the supreme court saying, “This is getting to be too much.” Regardless of the merits of the suit, the American people are being deserved by having the presidency consumed with being a defense bar. Let's just postpone all the lawsuits until after Trump leaves office. I could easily see that happening given like, I think, the court was probably wrong in Clint v. Jones in saying that these lawsuits would interfere with the presidency. Now we're seeing a real mushrooming of these lawsuits, and I'm not saying this just to harass Trump, lobby has to be Trump's personal conduct, no doubt, but I think some of it also is probably politically motivated. The Constitution is won't succeed if the President… because as Steve's mentioned, the framers did concentrate the executive power in this one person.
So for good or ill, if you can interfere with that one person, you can bring much of the executive branch to a halt. I think the courts would be sensitive to that and try to postpone a lot of these cases till after Trump leaves office.
Jeffrey Rosen: [00:32:56] I'm so glad that you've mentioned the Jefferson case, I found the letter that you just alluded to. It was to George Hay Washington in 1807 and he said, as you suggested, “Would the executive be independent of the judiciary if the several courts could bandy him from pillar to post and keep him constantly trudging from north to south and east to west and withdraw him entirely from his constitutional duties?” Steve, do you agree with John or not, that at some point a federal or state court might say, “Hey, these suits are taking too much of the President's time. Clinton v. Jones was wrong to predict the civil suit wouldn't take up too much time as Justice Stephen said after the case, we didn't know that he would lie under oath.” Do you imagine that it's possible that a court might delay the suits in the interest of protecting the President's time and independence?
Steve Vladeck: [00:33:47] I guess there's a lot there, Jeff. Let me try to unpack it, I think at a basic level, I actually don't think Clinton v. Jones is wrongly decided. That if we're going to draw a sharp distinction between the President and the content he undertakes within the outer perimeter of his official duties as President and everything else, that one of the necessary implications of that is that he ought to be liable for the content that falls outside the outer perimeter of his official duties. Which, of course, includes content that predates his tenure in office. On the question that actually got this whole chain going, which is whether a Clinton v. Jones should apply in state court? First, I should note, on March 14th of this year, the appellate division for the first department in New York affirmed the trial court by a three to two votes. There's now actually an appellate decision on the books holding that a president can be sued in state court for stuff that happened before he was president.
Jeff, I guess, my gut reaction, and I wrote about this in an op-ed for NBC after the trial court's ruling back in, I think, it was late 2017, my gut reaction is that the question of whether Clinton v. Jones, assuming it's rightly decided, should also apply in state court is really a question about the Supremacy Clause of the Constitution. Whether this is one of those rare examples of a lawsuit that the federal courts are allowed to hear but state courts are not. There are only really are a couple of examples are rid of man damage directed to a federal officer, are rid of habeas corpus directed to a federal jailer, or whether there's reason to assume that if the state courts are getting it wrong and/or mistreating the sitting president, he'll either have mechanisms for immediate appeal or will have a mechanism to remove the case to federal court. Ever since before the Civil War, federal law has provided for removal of cases from state court by any federal officer if he has any defense arising under any federal statute of the Constitution.
The only way that President Trump can't get these cases out of state court is if he has no federal claim, no federal objection to state court litigation. I guess I'm willing to assume that until and unless there's some evidence that state courts are ruling in a way that's manifestly unfair to the President, that they're denying him federal claims to which he'd otherwise be entitled, that there's no reason not to allow the ordinary presumption that state courts can handle federal lawsuits and state courts can handle these claims just as well as federal courts to go for it. That there's no reason to treat state courts differently. If, instead, one's of the view that Clinton v. Jones is just wrongly decided, that's a different argument and one we may be ought to have. But so long as it's on the books, I just I don't buy the supremacy clause argument for distinguishing the state courts and neither did a majority of the the Appellate Division earlier in March.
Jeffrey Rosen: [00:36:34] John, I've heard a lot of agreement on this podcast so far, although, you've had important differences and nuance with the exception of the question of whether executive privilege should protect the notes of the translator during the meeting with President Putin. Looking forward, what is the instance in clashes between the President, Congress, and the special prosecutor and the courts where you think executive privilege is most likely to succeed and should be most likely to succeed?
John Yoo: [00:37:06] I think in any kind of impeachment investigation, the House in particular is going to prosper all kinds of information involving Trump, contacts with Russians, contacts with other countries, contacts with all of these assorted figures who before his presidency, I think questionable character and conduct were surrounding him. I think that the President's going to be most successful in trying to claim executive privilege against an impeachment investigation. Now that the Mueller investigation is wrapping up, it doesn't actually seem like Trump, as far as I can tell, invoked executive privilege against that. Maybe he didn't need to, but actually, I think if I remember Trump ordered his subordinates to cooperate and I think they all di. So maybe he waived it for Mueller. But the form, the battlefield is going to shift now from Mueller to Congress, and so all these oversight hearings and, ultimately, I think an impeachment investigation, that's going to be the demand.
I think that's where Trump might be most successful, I think because, A, courts aren't going to want to get involved, particularly, with a claim between Congress and the President when there's no individual liberty at stake as there were in say the Nixon case where it was actually the Watergate burglars who said they needed the documents to prove their innocence. Here it's just going to be can the Congress get that information out of Trump? The more they press for what communications have you had with Putin? Or What did you tell the Attorney General? What did you say to Jeff Sessions when he was Attorney General? I think those are going to be the areas where Trump will have more success, and I think that's where the other branches are going to have less power to succeed.
I'm trying to remember now if you think back to the Clinton investigations. Bill Clinton, initially, I think tried to invoke executive privilege but in the end against Ken Starr, he didn't. Then I don't think he claimed executive privilege against the House and Senate, although, they might not have needed it because they had the benefit of Starr's report. They, basically, just I think used that and didn't really conduct their own serious investigation beyond it. This would be different in that what the Congress, I think, would probably want to investigate would be things not necessarily covered by Mueller. They won't have a roadmap or documents, so they're going to have to try to get the information for themselves.
I can easily see Trump ordering all of his aides just not to cooperate, and then Congress is going to be stuck with trying to get them held in contempt. I'm afraid after the Obama and Bush years that has been shown not to be an effective remedy if people in the executive branch refuse to cooperate with Congress.
Jeffrey Rosen: [00:39:58] Steve, if Congress attempts to compel the testimony of President Trump's aides and a potential impeachment inquiry, and Trump invokes executive privilege, do you agree with John that, that claim might and should succeed or not? If not, why not?
Steve Vladeck: [00:40:15] I think this goes back to a point, I think the one point where John and I have really disagreed on the podcast, which is I think it really depends on the specific case that Congress would make for overcoming executive privilege. In so far as the executive privilege, the Supreme Court recognized that Nixon is a qualified privilege, presumably something to do in the qualifying. I, actually, if I remember Nixon correctly, it wasn't that the defendants wanted the tapes, it was that the prosecutor, Jaworski, Leon Jaworski wanted the tapes. Which, of course, is odd, Jeff, because we tend not to think about a prosecutor's right to potentially inculpatory evidence as opposed to defendant's right to exculpatory evidence. Why that matters is because I actually think, in retrospect, that was a relatively weak claim on the prosecutor's part compared to a claim from the House Judiciary Committee that it is essential in deciding whether to pursue articles of impeachment against the sitting president.
To have testimony on topics on which had already has at least some circumstantial evidence. I don't think that a court would allow, say the House Judiciary Communities, as efficient expedition. But if and when the rubber hits the road, and John's right, this will take some time, and it could be that by the time this actually gets to Supreme Court, the matter's mooted by the interview in presidential election. But, Jeff, if the rubber really were to ever hit the road and you had an assertion of executive privilege in the face of a prime aphasia Impeachment Inquiry from the House Judiciary Committee, I don't think it's obvious that the President would win. I don't think it's obvious that the President would win, especially, in a case in which the subpoena against which the privilege was being asserted looked like something more than just a phishing expedition. Looked like he was actually trying to corroborate evidence that was already on the book.
I guess it's just maybe I see the world through more rose colored glasses than John does, maybe I'm just more optimistic about the courts than John is. But I think it's telling that in 45 years the Supreme Court has never really come back to the scope of the privilege it recognized in Nixon. I think if anyone had to in the context of impeachment, it's hard to imagine a more compelling case for overcoming the qualified executive privilege the court has recognized. Then Congress acting pursuant to its constitutional authority to impeach the President, trying to make sure it has the evidence to justify such a drastic but constitutionally available measure.
Jeffrey Rosen: [00:42:42] Wonderful. Well, it is time for closing arguments in this extremely illuminating debate, and let's focus on this final and important area of potential disagreement. John, if the President invokes qualified executive privilege in a potential impeachment proceeding, why do you think that it is important under the Constitution that it should succeed?
John Yoo: [00:43:05] Well, first, I think depending on what it is he's claiming privilege over, suppose it's his direct communications with Putin or direct communications with his cabinet members. I think that Nixon was right, that in order for the presidency to operate effectively for us to have decision making, the kind we want where everyone gets options considered and even outside the box things without regard to their political consequences. In order to have candor in the executive branch, I think the President needs to have his conversations protected. Just the way we would want supreme court justices to be able to speak to their clerks in confidence, or the way senators should be able to speak, I think, to their chief of staffs in confidence. If those are all out in the open, you're going to have risk at first conversations where people (inaudible) what's going to be said and you're not going to have a clear and open decision making we would want.
The second reason I think it would win is because I don't think courts would get involved. I'm sure people would want to drag the courts into it. I got to think this is really… if there's going to be a political question like doctrine recognized by the courts, it's going to be a fight between the President and Congress about what information the President has to hand over to Congress. That doesn't mean Congress couldn't force it out some other way, they could even say, “Oh, we're going to take it as a default if you don't give us the information. We're just going to automatically impeach you.” That was discussed during the Clinton years, (inaudible) impeachment too. But short of a political settlement where the President chooses voluntarily to hand it over, I don't think Congress really has the tools to force it out of the executive branch. I would expect, actually, Trump would win.
Even, though, personally, I would say it would be in Trump's political advantage to let it all out. But, unfortunately, presidents never seem to understand that it's important to get all the information out rather than having what appears to be a cover up.
Jeffrey Rosen: [00:45:06] Steve, the last word is if the president were to invoke qualified executive privilege in a potential impeachment proceeding, under what circumstances and why do you think it should not succeed under the Constitution?
Steve Vladeck: [00:45:21] Well, Jeff, I go back to something we were talking about earlier, which is in a world in which there are plenty of folks, including the Justice Department, who take the position that a sitting president cannot be indicted, the necessary implication of that view is that impeachment is the one and only remedy for basically going after a sitting President for malfeasance. I think so long as that is the view that is prevailing within the government itself, some of it has to come with that is the view that Congress's impeachment power is one of its most important Constitutional functions. And is at least on par with the President's a textual entitlement to the confidentiality of his internal communications. I certainly agree with John that courts are going to be reluctant to get into the middle of this, I think Congress itself might be reluctant to force the issue and might try every other means at its disposal to get this information out to the executive branch before coming to blows over this.
But the last time the Supreme Court address the political question doctrine was in its 2012 decision in the (inaudible) case, and Chief Justice Roberts there writing for an 8:00 to 1:00 court said, “When there's a dispute between Congress and the President over whether something Congress did is constitutional, that may be political. But it's not a political question, it's,” I think he literally said, “This is what we do.” Referring to the Supreme Court. I think if it came down to an impeachment investigation where Congress had plausible grounds to be pursuing this evidence from the executive and the President was refusing to turn it over, I guess I just I hold out hope that the Supreme Court if faced with that case in a proper vehicle would say that Congress has constitutional authority to impeach the President. It takes precedence over the qualified privilege that the Supreme Court had read into but it's not provided by the plain text of Article II.
Because, otherwise, it seems to me that impeachment is an empty shell and that the only time you'll ever be able to impeach a President is when there's an existing record that's not evidence within the executive branch of something he did that was blatantly inappropriate and worthy of removal. I guess I just I hope that courts would side with Congress when it came to such a straight on head on clash. But, Jeff, I think the most important point to take away from this whole thing is I don't think we'll ever get there. That is to say I think Congress and, especially, the current House, is not going to want to force that issue when there are so many other softer means at its disposal for basically creating incentives for executive branch compliance. To the point where I think it'd be very hard for President Trump to resist at least most of what Congress is going to be seeking.
Then the question becomes how quickly could this happen? Is there a chance that the current house is able to get everything that it wants between now and next November? That's where I think the President might be trying to play out the string, that's where he actually might want this stuff to go to the courts because then he can slow it down. Versus Congress say threatening to defund various aspects of the executive branch if they don't comply with subpoena request. Jeff, I think it's all still to play for, it's just not clear to me at the end of day that this is going to end up with a Supreme Court decision, or that if it does end up with a Supreme Court decision, the court's necessarily going to side with the President.
Jeffrey Rosen: [00:48:48] Thank you so much, John Yoo and Steve Vladeck for a nuanced, illuminating, and extremely educational discussion of the Constitution and executive privilege. You have illuminated areas of agreement and disagreement in the best tradition of We the People podcast, and it's always a pleasure to have you both. John, Steve, thank you so much for joining.
Steve Vladeck: [00:49:09] Thanks, Jeff.
John Yoo: [00:49:10] Thanks, Jeff.
Jeffrey Rosen: [00:49:14] Today's show was engineered by Greg Shekinah and produced by Jackie McDermott. Research was provided by Lana Orrick and the constitutional content team. If you want some homework of the week, please read United States v. Nixon, familiarize yourself with the scope of executive privilege. For extra credit, read up on President Jefferson's clash with Chief Justice John Marshall in that great letter I mentioned is to George Hay Washington, June 20th, 1807. Check it out. Always, please, dear We the People, listeners remember to rate, review, and subscribe to We the People on Apple podcasts, and recommend our show to friends and colleagues and anyone who is hungry for constitutional right. Always remember as you wake, as you sleep, the National Constitution Center is a private nonprofit.
We rely on the generosity, engagement, and passion for lifelong learning of people like you from across the country who are determined to cultivate your faculties of reason and to listen to the best arguments on all sides of our current constitutional debates so you can make up your own mind. You can support our mission by becoming a member at constitutioncenter.org/membership or give a donation of any amount to support our work including this podcast, the constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.