Whose “executive privilege” is it?

President Biden has said that he will not use “executive privilege” to deny congressional committees access to the documents and information produced when President Trump was in the White House.  Well, of course.  Biden is more than happy to give his fellow Democrats anything that could result in a successful fishing expedition – hoping to find or spin the information against Trump and the Republican Party.  

At the same time, House Speaker Nancy Pelosi’s Select Committee on the Capitol Hill Riot has issued subpoenas to a number of President Trump’s White House staff and outside advisors.  Trump has advised them to ignore the subpoenas on the basis that their conversations with the President fall under “executive privilege.”

Trump critics concede that Biden could invoke executive privilege on behalf of the former President, but as an ex-President, Trump no longer has the right of executive privilege.

An argument has been made – even by some Democrats – that Biden should invoke executive privilege on Trump’s information as a matter of principle.  They point out that it would essentially protect other Presidents after they leave office – including Biden.  It is one of those situations in which Biden can protect the traditional prerogatives of a President rather than bend to short-term political advantage.

Considering that Biden is a very strident political partisan, there is little to no chance that he would lose this opportunity to take a swipe at Trump – and by extension create problems for Republicans.

Biden has no role with regard to the issuance or rejection of the congressional subpoenas to testify.  Trump, however, is a key figure in both.  He believes that it is his right to exert executive privilege to stop the release of the White House documents AND to prevent his former staffers and advisors from honoring the Committee subpoenas. 

The issue at hand is whether a FORMER President has the right and the power to exert privilege over people who served him while in office and over documents developed during his tenure.

Democrats and those folks in the media, who hate Trump and Republicans, say emphatically that only the sitting President has the power to exert executive privilege over White House personnel – past and present – and the documents of past Presidents.  They claim that as if it were irrefutable absolute fact.

So, what is the answer to the question: Do former Presidents – in this case, Trump – have the power to invoke executive privilege over people and documents from the past administration?  The answer is … we do not know.

No matter how emphatically Democrats claim that Trump cannot use executive privilege – and that it is only a tool available to sitting Presidents – the answer to the question is not clear.  That is because there is no clarity in tradition or law that definitively decides the issue.  This is going to have to be adjudicated eventually by the Supreme Court.  And there is no certainty how the high Court will decide.

While we only get a one-sided opinion from the left-leaning news media – presented as fact – there are strong arguments on both sides.

The ability of a President to discuss matters with staff and advisors – and to maintain a historical record of all events – is severely hampered without executive privilege.  It is not merely a matter of a political question.  The privilege is designed to allow a President to speak freely with other heads-of-state or matters where secrecy is essential.  That is why the privilege exists.

If the privilege terminates when a President leaves office, there is no privilege at all.  Nothing can be confidential.  A future President does not have to be restrained by the secrecy of the information.  A President of a different political party can release information selectively merely to damage the political standing of the former President.  Hmmmm.  Is that what we are seeing today?

There may be a certain partisan political benefit in releasing the information and forcing the testimony because Trump is not a well-liked figure.  In fact, those who are most adamant in getting the records and testimony have one thing in common.  They hate Trump.  That should be taken into consideration when we ponder the legitimacy and necessity of obtaining all the information requested.

Those favoring the release of the White House documents point to the Supreme Court decision that forced President Nixon to release the so-called “Watergate tapes.”  There is, however, a significant difference between that case and the situation today.

In pursuit of the testimony is a complicated matter, too.  The left claims that it is a simple matter.  You get a subpoena and you MUST comply.  That is not true.  Recipients can use a number of legal arguments to have subpoenas quashed.

Then there is the matter of what can the Pelosi Congress do if the subpoena recipients simply refuse to respond.  The House can hold them in contempt.  But that, alone, is not likely to change the minds of those subpoenaed.  Congress cannot issue criminal charges, but it can send a criminal referral over to the Department of Justice to pursue criminal charges that can result in big fines and jail time.  

It is more than likely that the DOJ would not pursue criminal charges until the Supreme Court has determined whether the executive privilege applies to past Presidents – including Trump.  Furthermore, little known to the public is the DOJ’s policy of not pursuing criminal charges against individuals in the other branches of government.  

The House technically has the power to arrest and jail those who ignore subpoenas.  But that is an extreme option that has never been used in modern times — and cannot be used in this case because Congress shut down their only jail, although there is a celled room that is maintained as a historic relic.

It is probable that the Select Committee will not see any records until Trump has exhausted his legal and constitutional rights – until the high Court has decided the issue of executive privilege.  It is difficult to know at this time just how long it would take to get to the Supreme Court.

The issue of the subpoenas has a bit more history by which one can attempt to predict an outcome.  It is likely to be a longer process than the records issue.  There is also a subtext issue that complicates and delays the judicial process.  

Does the executive privilege – even if it does apply to the White House staffers — also apply to those who do not hold an official job in the administration – people like Steve Bannon or Rudy Giuliani?  It has for past sitting Presidents.  The privilege is often invoked by members of Congress who have spoken with the President.

Given the political volatility of the times, it is very difficult to predict the outcome in these matters.  I could be very wrong, but my sense of it at this moment is that Congress will get some documents, but not all based on the argument that the request is too broad.

Regarding the testimony, it is unlikely that we will see any of the White House staffers testify – unless they comply with the subpoenas voluntarily.  Not sure how the courts will view the outside advisors.

The point is … the Democrats’ and the left-wing’s absolutist claims that the subpoena issue is simple – that the recipients MUST comply or face jail time — is not true.  That executive privilege absolutely does NOT extend to former Presidents, is also untrue.  These questions are yet to be answered by the courts.

This is just another example of the arrogant and sanctimonious left presenting their opinions and jaded political conspiracy theories as fact.  It has become standard operating procedure by those on the left – given false credibility by the compliant news media.  It would be prudent to stop making absolutist claims and wait until the law cases play out.

So, there ‘tis.