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)
Our Interactive Constitution is the leading digital resource about the debates and text behind the greatest vision of human freedom in history, the U.S. Constitution. Here, scholars from across the legal and philosophical spectrum interact with each other to explore the meaning of each provision of our founding document.
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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