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Whose “executive privilege” is it?

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.

About The Author

Larry Horist

So,there‘tis… The opinions, perspectives and analyses of Larry Horist Larry Horist is a businessman, conservative writer and political strategist with an extensive background in economics and public policy. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman. He has served as a consultant to the Nixon White House and travelled the country as a spokesman for President Reagan’s economic reforms. He has testified as an expert witness before numerous legislative bodies, including the U. S. Congress. Horist has lectured and taught courses at numerous colleges and universities, including Harvard, Northwestern, DePaul universities, Hope College and his alma mater, Knox College. He has been a guest on hundreds of public affairs talk shows, and hosted his own program, “Chicago In Sight,” on WIND radio. Horist was a one-time candidate for mayor of Chicago and served as Executive Director of the City Club of Chicago, where he led a successful two-year campaign to save the historic Chicago Theatre from the wrecking ball. An award-winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He is praised by readers for his style, substance and sense of humor. According to one reader, Horist is the “new Charles Krauthammer.” He is actively semi-retired in Boca Raton, Florida where he devotes his time to writing. So, there ‘tis is Horist’s signature sign off.


  1. Ben

    Do you remember when republicans jailed Susan McDonald for defying a congressional subpoena ?
    Pepperidge Farm remembers.

    • larry Horist

      Ben …. you seem to be under the impression that there is equal application of laws. We like to say that we live under a rule–of-law and that no man (woman) is exempt. Both are nice sentiments, but totally untrue. Our laws have always been — and always will be – at the discretion of those enforcing the laws … from the cop on the beat, prosecutors, judges and politicians. Laws bend to politics and even the whims of those charged with enforcing them. I am not saying I like that fact, but just that I recognize it. Keep that in mind when a cop gives you a pass on a speeding ticket. You were a man above the law. But your point is well taken.

    • Harold blankenship

      That didn’t happen. You’re a damned liar

    • Harold blankenship

      Ben you have been away for awhile. I thought that you went to shit and fell through your asshole.

  2. Trebor Retsbew

    Since Nixon was the only former President who tried to use Executive Privilege and the SCOTUS turned him down, that should set a precedent for any court. Now since its called Executive Privilege, that would indicate you have to be an executive of this USA to use it, kind of a common sense thing.
    The second thing is if there is nothing to hide why would someone who is no longer the President want use it in the first place.

    • larry Horist

      As I recall, the Nixon decision was not a precedent by Supreme Court standards. The name of the Privilege has no legal meaning, And finally, there are many reasons why Presidents need to have privileged discussions and writings. National security is a big one. I assume that much of the material released by the National Archives or others will be highly redacted — or very limited. I cannot imagine that Biden would allow the research on any new secret weapons be open to the public — and our adversaries. I know folks want to see what is in the file regarding the election, but we will have to be very circumspect in what goes out. My interest is not to protect Trump — who I do not like and will not vote for if he runs for the GOP nomination — but having worked in the White House myself — back in the Lincoln administration — I do understand that the question of Executive Privilege is very important.

      • Joseph S. Bruder

        Interesting that you’ve constantly defended Trump over the last four years… now we’re seeing chinks in the wall – first, you tell us you liked his policies but disliked his personality…. then you admit that he screwed up his foreign policy with Afghanistan and Syria and others… He inherited a strong economy from Obama, and left with it in tatters… He lost the Presidency and both the House and Senate. He was a disgrace to his Presidency, and now you say you definitely wouldn’t vote for him. Larry, you’re a Trumpist who’s (finally) become disillusioned with Trump… You’re starting to see Trump as the cult leader he really is.

        Time to admit, Trump was a complete disaster for Republicans and the country.

  3. Frank stetson

    Tell us more about principle as defined during the Trump years. What a hoot.

    How many swipes has Don taken? And you want to give this corrupt, rude, womanizing, little draft dodger a mulligan?

    As far as I can tell, learning the truth is a good thing; there are no secrets here needing executive privilege. At least Clinton toed the line and took the depositions.

    Take it to the Supremes. Enough slimming your way around the Constitution.

    • larry Horist

      A mulligan? I did not think my commentary was a brief for Trump, but a detailed explanation of the process and the pitfalls. Ultimately the Supreme Court will have to clarify the issue. Most of the experts believe that Trump has no executive privilege — but they also admit that there is an arguable case. I believe that you understand that it would be disastrous if every new President threw open all the files of his or her predecessor. There is a good reason why presidential papers are locked up for decades before they are open to scholars. I do not have a horse in this race — whether Trump documents are released or not. But I do have a concern about breaking a good precedent and endangering national security if we do it badly. That is why the Supremes have the final word — to settle the controversy and the concerns.

  4. Frank stetson

    Sorry, point taken. My opinion still stands, sans the “you” in mulligan. sounds like we agree on most here. Keep the secrets, release the rest, he had no privilege; the documents might.

    And to your earlier pint, we’ll see how scotus spins, if they do. That is; speaking as a multiple traffic offender often above the law. I am really good at it ;-). But alas, at this age, I speed less n less.

  5. D S

    If the documents are released, it will set a precedent. So after Biden is gone let’s see what he’s been up to….