Donald Trump has invoked ‘executive privilege’ more than any other president, though all have used it to a lesser extent. Just in the past month, Trump has used it to keep a number of people from answering subpoenas by various congressional committees trying to find answers to some very important questions. Yesterday, he used it to claim that Congress and the public would not be allowed to see the un-redacted version of the Mueller report. Most of us are scratching our heads and asking, “Can he do that?”
Executive privilege is defined as “the right of the president and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public.” It is not a right that is spelled out in the Constitution, but rather was defined by the Supreme Court when it ruled that it is “fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution.”
Executive privilege can be asserted for one of two reasons: for national security needs, and for “protecting the privacy of White House deliberations when it is in the public interest to do so.” Now, at issue here is whether Donald Trump can be said to have known about and welcomed the Russian intrusion into the 2016 presidential election, and more likely, did Donald Trump attempt to interfere with the investigation into said Russian interference? Neither, at this juncture, qualify as ‘national security’ issues, so that leaves the second reason.
“Protecting the privacy of White House deliberations when it is in the public interest to do so” is rather open to interpretation. Is it in the ‘public interest’ to keep us in the dark and allow Trump to get by with having broken the law? My own opinion is that transparency is in the public interest, that the public has both a right and a need to know the truth. Just as Nixon’s assertion of executive privilege was widely seen as self-serving and against the public interest, most of us believe that Trump’s repeatedly invoking it makes him look guilty of far more than even Nixon.
If I sidle past you with my hands behind my back, you ask what I’m hiding, and I say “nuffin” then run quickly past and into my room, slam the door and lock it, you’re going to be pretty darn suspicious, right? Trump has been caught with his hands in the cookie jar and he is trying very hard to hide it. So … back to the question at hand: Can he do that?
Is it in the public interest? No. It is in the interest of Donald Trump as he wishes to remain in office, for he is enjoying the power of the office, the free jet-setting all over the world, and financial benefits for his businesses.
President Nixon’s abuse of the privilege made future presidents leery of it, and even when he was facing the Iran-Contra investigation during his second term, President Ronald Reagan decided against asserting executive privilege, agreeing instead to provide much of the requested information to Congress. President Bill Clinton attempted to invoke executive privilege during the investigation into his affair with Monica Lewinsky but was ultimately overruled.
Just as Richard Nixon used executive privilege in an attempt to cover his guilt, there can be no doubt that Trump is doing the same … the proof is in what we already know of the Mueller report. However, as the courts struck down Nixon’s claim, they are not as likely to do so with Trump’s. Why? Attorney General William Barr. The Justice Department under Nixon refused to pander to the president’s whims and instead held him accountable. Why do you think Jeff Sessions was fired? Why do you think Rod Rosenstein is resigning? And why do you think Trump nominated, and the Senate confirmed, William Barr so quickly? Why do you think Trump encouraged Justice Kennedy to retire and then the Senate was in such an all-fire hurry to put Brett Kavanaugh on the bench, despite credible allegations of sexual abuse? Trump knew that Mueller’s report would open the doors to congressional investigations and he was pre-covering his bases.
In U.S. v. Nixon in 1974, President Richard Nixon was ordered to deliver tapes and other subpoenaed materials to a federal judge for review. The justices ruled 9-0 that a president’s right to privacy in his communications must be balanced against Congress’ need to investigate and oversee the executive branch. That was then, and this is now … Nixon thought he would not be caught and didn’t have time to prepare in advance. Trump knew he was caught and rushed through terminations and nominations to cover his patootie even before the Mueller report saw the light of day. Remember how Trump’s lawyers refused to let him testify before Mueller’s team, for they knew he would lie and incriminate himself even further.
Now, that is not to say that Trump will not ultimately have his feet held to the fire, but it is likely to be sometime next year before that happens, as I suspect this will work its way up through the court system along with other issues. I also suspect it is more of a delaying tactic than anything. Think about it … right this moment, we are furious, and this is the hot topic. As other things take over the headlines in the media, as our attention is directed elsewhere, how likely are we to stay focused on Trump’s abuse of ‘executive privilege’?
I keep hoping that somebody … Don McGahn, Robert Mueller … somebody will have the guts to stand against Trump and volunteer to testify and provide whatever documents are in their possession. Yes, it could result in a jail sentence, but … isn’t someone willing to put this nation and its well-being ahead of their own self-interest? Trump for damn sure isn’t.