tag:theconversation.com,2011:/global/topics/executive-privilege-35483/articlesExecutive privilege – The Conversation2023-11-16T13:19:07Ztag:theconversation.com,2011:article/2170442023-11-16T13:19:07Z2023-11-16T13:19:07ZPrison sentence for Trump adviser Navarro gives new teeth to Congress as watchdog over the White House<figure><img src="https://images.theconversation.com/files/559455/original/file-20231114-15-fb67p7.jpeg?ixlib=rb-1.1.0&rect=13%2C0%2C2982%2C2106&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">At a January 2017 executive order signing, adviser Peter Navarro is third from left behind Trump, while Steve Bannon is on the far right. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-signs-the-first-of-three-executive-news-photo/632489940">Ron Sachs - Pool/Getty Images</a></span></figcaption></figure><p>Former Trump administration trade official <a href="https://www.washingtonpost.com/dc-md-va/2024/01/25/peter-navarro-sentence-contempt/">Peter Navarro has been sentenced to four months behind bars</a> for contempt of Congress. Navarro had refused to provide the House Jan. 6 committee with information it sought from him. He joins Steve Bannon as the first defendants in decades to be held <a href="https://www.reuters.com/world/us/former-trump-adviser-navarro-convicted-contempt-congress-2023-09-07/">criminally liable</a> by the U.S. Department of Justice for refusing to provide information in response to congressional subpoenas. </p>
<p>The Supreme Court has long supported Congress’ authority to obtain information needed to carry out its constitutional duties. But weak enforcement tools have made getting that information difficult, especially from the executive branch. </p>
<p>As <a href="https://law.wayne.edu/profile/fy5438">a former chief counsel for the Senate Permanent Subcommittee on Investigations</a>, I view the jury convictions of Bannon and Navarro as reviving the use of criminal proceedings as an enforcement option for Congress, offering a potent tool for holding powerful people accountable if they defy the legislative branch. How often that option will actually be used in the future, however, remains unclear.</p>
<h2>The cases</h2>
<p>The <a href="https://www.reuters.com/world/us/congressional-probe-us-capitol-riot-subpoenas-bannon-meadows-2021-09-23/">Bannon and</a> <a href="https://january6th-benniethompson.house.gov/news/press-releases/select-committee-subpoenas-peter-navarro">Navarro subpoenas</a> were issued by the House Select Committee to Investigate the January 6th Attack on the United States Capitol. </p>
<p>The subpoenas required both men to testify before the committee and produce documents related to the 2020 presidential election and the January 2021 attack. </p>
<p>But Bannon and Navarro declined to provide any documents or even to appear before the committee as the subpoenas directed. Both claimed they <a href="https://thehill.com/regulation/court-battles/4175318-navarro-says-trump-wanted-him-to-assert-privileges-during-jan-6-panel-investigation/">did not have to comply with the subpoenas</a> because, as presidential advisers, they were absolutely immune to congressional orders and because former President Donald Trump had <a href="https://www.reuters.com/world/us/us-house-committee-rejects-bannon-privilege-argument-jan-6-probe-2021-10-18/">asserted executive privilege</a> over the requested information – which meant they couldn’t produce it to Congress.</p>
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<a href="https://images.theconversation.com/files/559457/original/file-20231114-21-brrevk.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a suit with white hair looking pensive." src="https://images.theconversation.com/files/559457/original/file-20231114-21-brrevk.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/559457/original/file-20231114-21-brrevk.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=419&fit=crop&dpr=1 600w, https://images.theconversation.com/files/559457/original/file-20231114-21-brrevk.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=419&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/559457/original/file-20231114-21-brrevk.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=419&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/559457/original/file-20231114-21-brrevk.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=526&fit=crop&dpr=1 754w, https://images.theconversation.com/files/559457/original/file-20231114-21-brrevk.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=526&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/559457/original/file-20231114-21-brrevk.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=526&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Peter Navarro, after being found guilty of contempt of Congress at the E. Barrett Prettyman Courthouse on Sept. 7, 2023, in Washington.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/peter-navarro-an-advisor-to-former-u-s-president-donald-news-photo/1666307036?adppopup=true">Kevin Dietsch/Getty Images</a></span>
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<p>The committee and the full House <a href="https://www.politico.com/news/2022/04/06/house-votes-dan-scavino-peter-navarro-in-contempt-00023619">voted to hold the subpoena recipients in contempt of Congress</a>. The committee referred their cases to the Department of Justice, requesting prosecution under <a href="https://www.govinfo.gov/app/details/USCODE-2010-title2/USCODE-2010-title2-chap6-sec194">a federal law</a> that says if Congress refers a case, the Department of Justice shall present it to a grand jury.</p>
<p>Bannon was tried in July 2022; the <a href="https://www.cnn.com/2022/07/22/politics/steve-bannon-contempt-of-congress-january-6-verdict/index.html">jury took only three hours to return a guilty verdict</a>. Navarro went to trial on Sept. 7, 2023; the <a href="https://www.nytimes.com/2023/09/07/us/politics/navarro-contempt-trial-jury.html">jury found him guilty the same day</a>. Bannon was sentenced to four months imprisonment and fined US$6,500. In addition to his sentence of four months in prison, <a href="https://www.washingtonpost.com/dc-md-va/2024/01/25/peter-navarro-sentence-contempt/">Navarro has been fined $9,500</a>. <a href="https://www.reuters.com/world/us/former-trump-adviser-navarro-convicted-contempt-congress-2023-09-07/">Both men</a> have said they will appeal their convictions. </p>
<h2>Criminal penalties</h2>
<p>Congressional investigations are part of the Constitution’s system of checks and balances and can include examining actions taken by the executive branch. </p>
<p>In the past, for example, Congress has evaluated government waste, fraud and <a href="https://www.levin-center.org/harry-truman-and-the-investigation-of-waste-fraud-abuse-in-world-war-ii/">abuse</a>; <a href="https://www.levin-center.org/frank-church-and-the-church-committee/">troubling covert intelligence operations</a>; and <a href="https://www.levin-center.org/the-watergate-hearings/">government misconduct</a>. </p>
<p>When Congress begins asking questions, executive branch officials have sometimes refused to provide requested information.</p>
<p>Using its authority granted in the Constitution, Congress has previously imprisoned individuals for defying a congressional subpoena. <a href="https://crsreports.congress.gov/product/pdf/R/R45653">But that last occurred in 1935</a>. </p>
<p>When Congress has referred cases to the Department of Justice under the law requiring presentation to a grand jury, the department has <a href="https://levin-center.org/wp-content/uploads/2021/09/shaub-the_executive_s_privilege.pdf">routinely declined to prosecute</a> executive branch officials who are following presidential instructions to withhold information. Essentially, the department hasn’t chosen to prosecute officials from its own administration.</p>
<p>The change in pattern in the Bannon and Navarro cases may have occurred in part because the Biden Justice Department was asked to prosecute people associated with the Trump administration, and the withheld information involved a matter of rare constitutional significance. </p>
<p>The Bannon and Navarro convictions demonstrate for the first time in over 80 years that if the Department of Justice chooses to use them, statutory criminal prosecutions and penalties offer a feasible and forceful tool to protect congressional inquiries.</p>
<p>The House committee that requested the information from Bannon and Navarro has disbanded, so the two criminal cases will not be supplying it with any new information. But the contempt prosecutions, if they end up punishing the defendants’ misconduct, could create a potentially significant deterrent to those thinking about defying a congressional subpoena.</p>
<h2>Executive privilege</h2>
<p>Another key aspect of both cases involves the issue of executive privilege. Executive privilege enables the president to withhold information from Congress when it is in the public interest. <a href="https://www.levin-center.org/congress-first-investigation-general-st-clairs-defeat/">President George Washington was the first</a> to articulate the principle in 1792.</p>
<p>The Supreme Court first recognized executive privilege as constitutionally legitimate in <a href="https://www.oyez.org/cases/1973/73-1766">United States v. Nixon</a>, while also ruling that President Richard Nixon could not use the privilege to quash a grand jury subpoena of conversations recorded in the Oval Office, because “fundamental” due process and fairness required the prosecutor to have access to the tapes as part of a criminal inquiry. The Supreme Court has since provided little additional guidance on how to claim executive privilege or what it protects.</p>
<p>Both Republican and Democratic administrations have subsequently claimed that, due to executive privilege and other separation of powers concerns, presidential advisers are absolutely immune to congressional subpoenas, despite court rulings to the contrary. </p>
<p>In <a href="https://casetext.com/case/trump-v-mazars-usa-llp-2">Trump v. Mazars</a>, when President Trump sought to block the disclosure of certain personal financial documents to Congress, the Supreme Court pointedly ignored his claims of absolute immunity to congressional subpoenas. Instead, the court established a new test enabling Congress to subpoena certain information involving the president and sent the cases back to the lower courts to apply the test to the subpoenas at issue. </p>
<p>Following that Supreme Court guidance, the Bannon and Navarro district courts rejected the defendants’ immunity claims, although it is likely the defendants will bring up the issue again in their appeals.</p>
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<a href="https://images.theconversation.com/files/559459/original/file-20231114-17-kgyfft.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large room filled with people, including almost a dozen at a long table at the front of the room, with a large screen behind them that says them that says 'Select Committee to Investigate the January 6th Attack on the U.S. Capitol.'" src="https://images.theconversation.com/files/559459/original/file-20231114-17-kgyfft.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/559459/original/file-20231114-17-kgyfft.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/559459/original/file-20231114-17-kgyfft.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/559459/original/file-20231114-17-kgyfft.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/559459/original/file-20231114-17-kgyfft.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/559459/original/file-20231114-17-kgyfft.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/559459/original/file-20231114-17-kgyfft.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A June 9, 2022, hearing of the House committee investigating the Jan. 6 Capitol attack.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/capitol-police-officer-caroline-edwards-and-british-news-photo/1241208542?adppopup=true">Jabin Botsford-Pool/Getty Images</a></span>
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<p>Also significant is that the two district court judges in the Bannon and Navarro cases refused to allow either defendant to raise an executive privilege defense at trial. </p>
<p><a href="https://www.justice.gov/usao-dc/pr/stephen-k-bannon-found-guilty-jury-two-counts-contempt-congress">In the Bannon case</a>, the court held that he never proved that Trump asserted executive privilege over the requested information and that, while Bannon was an adviser to Trump in 2017, he was not in 2020, which was the time period covered by the congressional subpoena. <a href="https://www.justice.gov/usao-dc/pr/former-white-house-advisor-convicted-contempt-congress">In the Navarro case</a>, while Navarro was a presidential adviser in 2020, the court found him unable to prove that Trump ever asserted executive privilege over the subpoenaed information. </p>
<p>The inability to prove Trump instructed either of them to assert privilege suggests that neither defendant will be able to offer a strong executive privilege argument in their appeals.</p>
<h2>Strengthening Congress</h2>
<p>Unless reversed, the Bannon and Navarro cases have nudged open a door that had been effectively closed for 80 years, showing that federal prosecutors and juries can use criminal penalties to hold powerful political players accountable. </p>
<p>While their appeals continue, the two cases already suggest that criminal as well as civil enforcement of congressional subpoenas can work. If the convictions are upheld on appeal, Congress could even consider ways to make criminal prosecution a more viable option, perhaps by legislating new authority enabling Congress to require appointment of a special prosecutor to handle cases involving executive branch officials. </p>
<p>If Congress could appoint a special prosecutor, it would not have to rely on the Department of Justice to bring a prosecution. Of course, the special prosecutor would still have to try the criminal case in court before a judge and jury.</p>
<p>Equally important, the two cases may clarify the legal limits on executive privilege and absolute immunity.</p>
<p>The appeals court could, for example, bar future absolute immunity claims by executive branch officials subpoenaed by Congress. It could also make clear that executive privilege requires specific evidence to succeed in court. That includes proof that a current or former president asserted privilege, that the defendant was a presidential adviser at the relevant time, and that the defendant appeared before Congress and claimed the privilege on a question-by-question basis. </p>
<p>If the appeals court sustains those requirements, clarifying what has to be proved to assert executive privilege could affect not only criminal but also civil enforcement efforts, strengthening the hand of Congress when facing nebulous assertions of executive privilege.</p>
<p>The D.C. Court of Appeals held <a href="https://rollcall.com/2023/11/09/appeals-court-skeptical-of-bannon-push-to-overturn-contempt-of-congress-convictions/">oral argument in the Bannon case on Nov. 9</a>; the Navarro case will follow. How the appeals process unfolds will determine the extent to which the Bannon and Navarro contempt of Congress convictions will create an effective deterrent to executive branch defiance of Congress’ authority to subpoena information. Curbing noncompliance with congressional subpoenas promises, in turn, to strengthen Congress’ ability to serve as a constitutional check on the executive branch.</p>
<p><em>This story has been updated to reflect Navarro’s four-month prison sentence.</em></p><img src="https://counter.theconversation.com/content/217044/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elise J. Bean does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The conviction and incarceration of 2 former Trump aides who refused to comply with the House Jan. 6 committee’s information requests could revive a potent tool for accountability.Elise J. Bean, Director of the Washington Office of the Levin Center for Oversight and Democracy, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1964512023-03-30T22:30:50Z2023-03-30T22:30:50ZManhattan grand jury votes to indict Donald Trump, showing he, like all other presidents, is not an imperial king<figure><img src="https://images.theconversation.com/files/518609/original/file-20230330-20-6w7wz.jpg?ixlib=rb-1.1.0&rect=0%2C16%2C5391%2C3567&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump's indictment by a Manhattan grand jury will test his legal and political power.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-speaks-during-a-rally-at-news-photo/1476375309">Brandon Bell/Getty Images</a></span></figcaption></figure><p>A Manhattan grand jury voted to indict former President Donald Trump on March 30, 2023, for his <a href="https://www.reuters.com/legal/trumps-alleged-hush-money-payments-path-criminal-charges-2023-03-30/">alleged role in paying porn star</a> Stormy Daniels hush money.</p>
<p>Trump lawyer Joe Tacopina <a href="https://www.pbs.org/newshour/politics/donald-trump-indicted-lawyer-says">confirmed the indictment</a>.</p>
<p>The New York Times reported that it is not yet clear <a href="https://www.nytimes.com/live/2023/03/30/nyregion/trump-indictment-news">what exact charges Trump will face</a>, but a formal indictment will likely be issued in the next few days. Manhattan District Attorney Alvin Bragg is <a href="https://apnews.com/article/who-is-alvin-bragg-trump-manhattan-da-d77a4ec8df9a2b2b35f6e8bb9a52a5a7">the first prosecutor</a> ever to issue an indictment against a former president. Trump is still the center of <a href="https://www.nytimes.com/article/trump-investigations-civil-criminal.html">several ongoing investigations</a> regarding other alleged criminal activity, including actions he took while in office. </p>
<p>American history is rife with presidents who have used their office to extend executive authority. </p>
<p>Presidents are not kings. George Washington <a href="https://www.npr.org/sections/deceptivecadence/2011/02/20/133499991/sing-out-mr-president-george-washington-down-on-the-farm">once reflected on this distinction</a>, saying, “I had rather be on my farm than be emperor of the world.”</p>
<p>But American politics and presidency scholars – <a href="https://scholar.google.com/citations?user=_khILTgAAAAJ&hl=en">including me</a> – have long worried about <a href="https://www.worldcat.org/title/imperial-presidency/oclc/704887">the idea of an imperial presidency</a> – <a href="https://politicaldictionary.com/words/imperial-presidency/">meaning, a president</a> who tries to exert a level of control beyond what the Constitution spells out.</p>
<p>Trump was just another example of a president acting as if he was king by just another name.</p>
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<a href="https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People stand behind a large banner that says 'indict Trump,' and hold up their own small signs in front of an official government building." src="https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">People protest in Manhattan in April 2022, demanding the indictment of former President Donald Trump.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1390386928/photo/former-us-president-trump-stop-running-for-president-in-2024.jpg?s=1024x1024&w=gi&k=20&c=G022z32BTLMpcY-MqVx79QdM4GN3-b_fU4W2CR_D1g0=">Pablo Monsalve/VIEWpress</a></span>
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<h2>Expanding role of the presidency</h2>
<p>While some early presidents, notably<a href="https://millercenter.org/president/jackson/impact-and-legacy"> Andrew Jackson</a> and<a href="https://jmp.princeton.edu/events/abraham-lincolns-invention-presidential-war-powers"> Abraham Lincoln,</a> expanded the executive branch, most were constrained by the dominance of the legislative branch in their day.</p>
<p>The growth of the executive branch in terms of size and power began in earnest during the 20th century. </p>
<p>Franklin Roosevelt <a href="https://www.smithsonianmag.com/history/when-franklin-roosevelt-clashed-with-the-supreme-court-and-lost-78497994/">attempted to pack</a> the Supreme Court to overcome opposition to his <a href="https://politicaldictionary.com/words/imperial-presidency/">New Deal legislation</a>, a series of public works and spending projects in the 1930s.</p>
<p>Roosevelt wanted to add a justice for every existing judge on the court who did not retire by age 70 – but it was a transparent attempt to alter the court’s composition to favor his agenda, and <a href="https://supremecourthistory.org/schs-historical-documentaries/fdr-courtpacking-controversy-full-script/">the Senate shot it down</a>. </p>
<p>Richard Nixon decided to impound money authorized for programs simply because he disagreed with them. Nixon had vetoed the <a href="https://www.govinfo.gov/content/pkg/STATUTE-86/pdf/STATUTE-86-Pg816.pdf">Federal Water Pollution Control Act Amendments of 1972</a> but was overridden by Congress. He still <a href="https://www.nytimes.com/1973/10/07/archives/nixons-impounding-of-billions-in-federal-money-is-complicated-issue.html">withheld money</a>, which eventually <a href="https://supreme.justia.com/cases/federal/us/420/35/">culminated in a 1975 Supreme Court case</a>, in which the court <a href="https://law.jrank.org/pages/9356/Presidential-Powers-Power-Impoundment.html">ruled against Nixon</a>.</p>
<p>Other presidents tried to unduly influence more mundane aspects of life.</p>
<p>In August 1906, for example, Theodore Roosevelt <a href="https://www.history.com/news/theodore-roosevelt-spelling-controversy">issued an executive order</a> forcing the Government Printing Office to begin using the new spellings of 300 words – including “although” and “fixed” – in order to simplify them. </p>
<p>Following broad public criticism of this plan, <a href="https://childrenofthecode.org/code-history/roosevelt.htm">Congress voted </a>to reject these proposed spelling improvements in 1906.</p>
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<a href="https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A black and white photo shows two men sitting in armchairs facing each other." src="https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=510&fit=crop&dpr=1 754w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=510&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=510&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Richard Nixon speaks with journalist David Frost in 1977, three years after Nixon resigned.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/50426386/photo/frost-interviews-nixon.jpg?s=612x612&w=gi&k=20&c=ghRZcU4BWKy-fprsduiqPDQybzP0A86zbemPw8rP1os=">John Bryson/Getty Images</a></span>
</figcaption>
</figure>
<h2>Trump’s turn</h2>
<p>Trump’s actions and words throughout the presidency also suggest he believed that the office gave him overarching power.</p>
<p>For example, Trump reflected on his power over states to force them to reopen <a href="https://www.politico.com/states/california/story/2020/04/13/trump-claims-total-authority-over-state-decisions-1275506">during the COVID-19 crisis,</a> saying in April 2020, “When somebody’s president of the United States, the authority is total.” But governors actually maintained the control over what remained open or closed in their states during the pandemic. </p>
<p>Trump has also treated the independent judiciary as an inferior branch of government, subject to his control. </p>
<p>“If it’s my judges, you know how they’re gonna decide,” <a href="https://www.washingtonpost.com/politics/trump-to-congress-see-you-in-court/2019/04/26/9f114890-678d-11e9-82ba-fcfeff232e8f_story.html">Trump said</a> of his potential judicial appointees in 2016. </p>
<p>Chief Justice John Roberts rejected Trump’s view on this issue <a href="https://www.nbcnews.com/politics/supreme-court/rare-rebuke-chief-justice-roberts-slams-trump-comment-about-obama-n939016">in 2018, saying,</a> “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. … What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”</p>
<h2>It’s classified</h2>
<p>There is a rigorous procedure if presidents decide to declassify information. This <a href="https://www.archives.gov/isoo/policy-documents/cnsi-eo.html">complex process</a> involves all classified material being reviewed by appropriate government agencies and experts at the National Archives.</p>
<p>But Trump <a href="https://www.lawfareblog.com/can-trump-just-declare-nuclear-secrets-unclassified">claimed at one point</a> any documents he took home were already declassified. </p>
<p><a href="https://www.nytimes.com/2022/08/14/us/politics/trump-classified-documents.html%20%20https://www.msn.com/en-us/news/politics/donald-trump-tells-fox-news-host-i-can-declassify-docs-just-by-thinking-about-it/ar-AA1267nK">He later asserted</a>, “There doesn’t have to be a process, as I understand it. … You’re the president of the United States, you can declassify just by saying it’s declassified, even by thinking about it.”</p>
<p>These comments help substantiate Trump’s belief in his absolute authority. There are <a href="https://www.brennancenter.org/our-work/research-reports/government-classification-and-mar-lago-documents">specific procedures</a> in place to <a href="https://www.archives.gov/isoo/policy-documents/cnsi-eo.html">manage declassification</a> that do not involve psychic powers.</p>
<h2>One real superpower</h2>
<p>If the American presidents have one superpower, it is the <a href="https://theconversation.com/pardon-me-an-ethicists-guide-to-what-is-proper-when-it-comes-to-presidential-pardons-151461">power of the pardon</a>. American presidents can pardon people, and the legislative and judiciary branches cannot prevent it. </p>
<p>Past presidents have used pardons largely in the service of justice, but at times to also reward personal friends or connections. But Trump took it even further, using this power seemingly as a way to <a href="https://www.cnbc.com/2020/12/22/-trump-pardons-15-including-people-convicted-in-mueller-probe-.html">reward his loyal supporters</a> – and <a href="https://www.cnn.com/2022/09/01/politics/january-6-pardons-trump-2024/index.html">says he will</a> seriously consider pardoning the Jan. 6, 2021, Capitol rioters if he is reelected. </p>
<p>Trump also apparently considered <a href="https://www.nytimes.com/2021/01/07/us/politics/trump-self-pardon.html">granting himself</a> a pardon as a way to avoid any prosecution for his involvement with the Capitol attack. </p>
<p>A self-pardon would also potentially place any president in constitutional murky water. </p>
<p>A <a href="https://supreme.justia.com/cases/federal/us/236/79/#89-90">1919 Supreme Court ruling</a> declared that a pardon “carries an imputation of guilt and acceptance of a confession of it.” So, if Trump had pardoned himself for anything, he would have admitted to having committed a crime – for which he could still potentially be impeached or investigated under any applicable state law, which is not covered by a presidential pardon.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People are seen in a large conference or other official looking room, looking at a large projecter screen that has details about government pardons and Jan. 6." src="https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=391&fit=crop&dpr=1 600w, https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=391&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=391&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=491&fit=crop&dpr=1 754w, https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=491&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=491&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Private communications about presidential pardons are shown during a hearing of the Jan. 6 committee in June 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1241485404/photo/house-january-6th-select-committee-holds-its-fifth-hearing.jpg?s=1024x1024&w=gi&k=20&c=eUF7kc7woKyBGwO0e5wzrqPZx-mtQd0OJHQQjsmkRCs=">Mandel Ngan-Pool/Getty Images</a></span>
</figcaption>
</figure>
<h2>After office</h2>
<p>Since leaving office, Trump has <a href="https://www.nytimes.com/2022/09/30/us/politics/trump-executive-privilege.html">attempted to claim</a> post-presidential executive privilege, independent of the current administration. But President Joe Biden – who must first give Trump this privilege – never extended it to his predecessor. </p>
<p>Trump’s defense that he was allowed to store classified documents at Mar-a-Lago as a result of executive privilege has <a href="https://www.politico.com/news/2022/12/01/appeals-court-tosses-trumps-lawsuit-over-mar-a-lago-search-00071743">largely been unsuccessful</a> in the courts. </p>
<p>Trump has also used his time as president to avoid any lawsuits that emerged after he left office. </p>
<p>In January 2023, a federal judge shot down Trump’s attempt to dismiss a 2022 defamation lawsuit filed by the writer E. Jean Carroll, who says Trump raped her in the 1990s. Trump denied the rape in 2019. </p>
<p>In court, <a href="https://www.reuters.com/legal/court-weighs-immunity-donald-trump-defamation-case-over-rape-claim-2023-01-10/">Trump argued that</a> anything he said as president should be protected and he should be given immunity during that period. </p>
<p>Though a ruling is still pending, Carroll <a href="https://www.theguardian.com/us-news/2023/jan/13/trumps-e-jean-carroll-lawsuit-absurd-ruling">has argued in court</a> that immunity would apply only if Trump were referring to presidential matters, and not personal ones. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A white man with a blue suit walks past a row of American flags with the words 'Make America Great again' on a banner above the flags" src="https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump speaks at an event in his Mar-a-Lago home in November 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1441806213/photo/former-u-s-president-donald-trump-makes-an-announcement-at-his-florida-home.jpg?s=1024x1024&w=gi&k=20&c=aExQgUpOv8qb42hejd_g4ntovKv8zgjdvpCMU_ozkMs=">Joe Raedle/Getty Images</a></span>
</figcaption>
</figure>
<h2>Everyone is held to the same rules</h2>
<p>American presidents serve a limited amount of time governing before they return to the general population’s ranks. </p>
<p>Those privileged enough to hold the top office in the U.S. are still citizens. They are held to the same laws as everyone else and, the founders believed, should never be held above them. </p>
<p>Throughout history, many presidents have pushed the boundaries of power for their own personal preferences or political gain. However, Americans do have the right to push back and hold these leaders accountable to the country’s laws.</p>
<p>Presidents have never been monarchs. If they ever act in that manner, I believe that the people have to remind them of who they are and whom they serve.</p><img src="https://counter.theconversation.com/content/196451/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shannon Bow O'Brien does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Trump’s indictment will force Americans to grapple with the exact role of presidents – and limits of their power.Shannon Bow O'Brien, Associate Professor of Instruction, The University of Texas at AustinLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1965592023-01-12T13:21:28Z2023-01-12T13:21:28ZTrump is facing various criminal charges – here’s what we can learn from legal cases against Nixon and Clinton<figure><img src="https://images.theconversation.com/files/504070/original/file-20230111-14-t9gpgf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump waves to people during a New Year's event at his Mar-a-Lago home in December 2022. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1453537376/photo/donald-trump-addresses-the-press-on-new-years-eve-at-mar-a-lago-mansion.jpg?s=1024x1024&w=gi&k=20&c=ZPmora_FI5LKPZ9ezZ3DTxKoHRFR0iuAkvGdPSewxJ4=">Joe Raedle/Getty Images</a></span></figcaption></figure><p>A <a href="https://www.cnn.com/2023/01/09/politics/fulton-county-grand-jury-trump-election/index.html">Georgia special grand jury has finished its work</a> investigating whether former president Donald Trump and his allies committed crimes when trying to overturn the 2020 election results.</p>
<p>While special grand juries cannot themselves issue indictments, they can recommend district attorneys do so. This and other recent news about Trump’s mounting legal problems has led to a number of legal experts and <a href="https://www.washingtonpost.com/opinions/2023/01/10/georgia-fulton-investigation-trump-indictment/">political observers</a> saying that Trump could soon be indicted.</p>
<p>Trump, meanwhile, faces several other criminal investigations that could also result in indictments. The Department of Justice is <a href="https://www.vox.com/policy-and-politics/23306941/donald-trump-crimes-criminal-investigation-mar-a-lago-fbi-january-6-election-georgia-new-york">investigating Trump</a> for retaining government documents in violation of several federal laws. </p>
<p>And the House Select Committee to Investigate the January 6th Attack on the United States Capitol <a href="https://apnews.com/article/january-6-final-hearing-investigation-wraps-0bceb95826c1c836023d2810ccbeccca">referred Trump</a> to the Department of Justice in December 2022, <a href="https://www.npr.org/2022/12/23/1145160544/jan-6-report-committee-donald-trump">citing multiple likely</a> criminal violations in his role of orchestrating an attack on the Capitol. The Department of Justice’s special counsel is now investigating. </p>
<p>Trump, who may become the first former president of the United States to be indicted by a court of law, is not the first modern president with <a href="https://www.wsj.com/articles/which-presidents-have-been-tied-to-a-crime-a-history-1534943720">legal problems</a>. But the question of whether a president – sitting or former – should be charged with a crime has come up three times in the last half-century. </p>
<p>As a <a href="https://law.wayne.edu/profile/ew9862">legal scholar</a>, I understand the important questions raised about the rule of law within U.S. democracy by the possible indictment of a former president. </p>
<p>The <a href="http://rolalliance.org/rol-alliance-impact/rule-of-law-democracy/">rule of law</a> means that no one is above the law. It ensures that the rules are made by and for the people. Those rules are enforced equally and adjudicated through well-established procedures. For the rule of law to prevail, any decision to indict a former president – or not to – has to be credible, independent and supported by evidence.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A white man with a blue suit walks past a row of American flags with the words 'Make America Great again' on a banner above the flags." src="https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump speaks at an event in his Mar-a-Lago home in November 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1441806213/photo/former-u-s-president-donald-trump-makes-an-announcement-at-his-florida-home.jpg?s=612x612&w=gi&k=20&c=R2vt8_lclk72suKPt3eLn75Rak5i1LT6SIe18wHUig0=">Joe Raedle/Getty Images</a></span>
</figcaption>
</figure>
<h2>Being a current or former president matters</h2>
<p><a href="http://www.processhistory.org/presidential-misconduct-historians-and-history/">Presidential misconduct</a> is not new. </p>
<p>Presidents have engaged in unlawful activity. Some have even run into legal problems while in office. But their legal problems are often settled by the time they leave office and fade from the public’s memory. </p>
<p>The perseverance of Trump’s legal problems raises important new questions about how to deal with misconduct by a former president.</p>
<p>This matters, because federal law treats former presidents differently from sitting presidents. Former presidents do not retain all the legal advantages of being president. For example, former presidents can try to assert executive privilege to shield certain documents and information from Congress, courts and the public to protect the nation, but courts <a href="https://www.theusconstitution.org/litigation/thompson-v-trump/">have limited their</a> ability to do so. </p>
<p>The question of whether a sitting president can be indicted remains unresolved. In 2000, the Department of Justice <a href="https://www.justice.gov/olc/opinion/sitting-president%E2%80%99s-amenability-indictment-and-criminal-prosecution">adopted a policy</a> against indicting a sitting president. The policy protects presidents while they are in office so they can fulfill their constitutional duties. </p>
<p>But it is tradition, not law or policy, that has kept former presidents from indictment in <a href="https://www.theatlantic.com/ideas/archive/2020/10/case-criminally-investigating-ex-president/616804/">the past 240 years</a>. </p>
<p>The legal arguments against indicting a sitting president – namely that it would undermine the capacity of the executive branch to perform its constitutional functions – lose weight once a president leaves office. A former president becomes a private citizen and no longer has any duties under the Constitution.</p>
<h2>Legal trouble for sitting presidents</h2>
<p>A few presidents have faced legal problems while in office, including Republican Richard Nixon and Democrat Bill Clinton. </p>
<p>Nixon famously ran into legal trouble after his <a href="https://www.britannica.com/event/Watergate-Scandal">reelection campaign</a> burglarized and bugged the Democratic National Committee’s headquarters in June 1972 – and he subsequently participated in the effort to cover up the scandal. </p>
<p>Nixon resigned in 1974 before the House of Representatives could have potentially impeached him – or the Senate could have convicted him and removed him from office <a href="https://www.vox.com/2014/8/7/5970967/what-was-watergate-scandal-nixon">for his crimes</a> of obstruction of justice, abuse of power and contempt of Congress.</p>
<p><a href="https://www.britannica.com/biography/Leon-Jaworski">Special Prosecutor Leon Jaworski</a>, who was investigating the Watergate scandal, struggled with the question of whether a court can indict a sitting president. </p>
<p>The U.S. Constitution does not say that the president is immune from ordinary processes of the criminal law. It does, however, provide for impeachment and removal from office. </p>
<p>Some believe that because the Constitution establishes an <a href="https://www.lawfareblog.com/indicting-and-prosecuting-sitting-president">impeachment process</a> to address presidential misconduct, it should take precedent over a criminal indictment. Others worry that indictment would interfere with a president’s ability to fulfill his or her constitutional duties.</p>
<p>Jaworski left this legal question open and chose not to indict Nixon in 1974. He transmitted the evidence he had gathered on Nixon’s involvement in Watergate to the House so it could pursue impeachment proceedings. </p>
<p>The grand jury that was also investigating the Watergate scandal, however, <a href="https://www.nytimes.com/1974/06/07/archives/jury-named-nixon-a-coconspirator-but-didnt-indict-st-clair-confirms.html">voted in June 1974</a> to name Nixon as an unindicted co-conspirator in an alleged conspiracy to obstruct justice. It also recommended indicting seven men involved in the crime.</p>
<p>Nixon’s successor, President Gerald Ford, then faced the question of how to deal with Nixon’s misconduct after his predecessor resigned the office. Ford didn’t have the power to indict, but he could pardon Nixon for his alleged crimes. Ford decided that it was in the best interest of the country to <a href="https://www.history.com/this-day-in-history/ford-pardons-nixon">move on</a> from the Watergate scandal and to not allow prosecutors to indict Nixon. </p>
<p>Shortly after Nixon’s resignation, Ford <a href="https://www.history.com/this-day-in-history/ford-pardons-nixon">granted a full</a>, free and absolute pardon to Nixon in September 1974 for all offenses committed during his tenure as president. Ford’s pardon ensured that Nixon would not face indictment as a former president.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A black and white photo shows two men sitting in arm chairs facing each other." src="https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=510&fit=crop&dpr=1 754w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=510&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=510&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Richard Nixon speaks with journalist David Frost in 1977, three years after Nixon resigned.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/50426386/photo/frost-interviews-nixon.jpg?s=612x612&w=gi&k=20&c=ghRZcU4BWKy-fprsduiqPDQybzP0A86zbemPw8rP1os=">John Bryson/Getty Images</a></span>
</figcaption>
</figure>
<h2>Another kind of legal trouble</h2>
<p>Clinton was never indicted, but he faced serious consequences for his presidential misconduct. His legal problems related to his treatment of and relationships with several women who were not his wife. </p>
<p>Clinton was accused of lying in court proceedings in a sexual harassment case filed against him. His alleged lying led to his impeachment for lying under oath to a federal grand jury and obstruction of justice. The Senate voted not to convict him, and thus he was not removed from office. A <a href="https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/contempt041399.htm">federal district judge</a> held Clinton in contempt of court for making false statements in deposition testimony in the case. </p>
<p>Unlike Nixon, Clinton paid a price for his presidential misconduct. An Arkansas Supreme Court <a href="https://www.washingtonpost.com/archive/politics/2000/07/01/arkansas-court-panel-sues-clinton/9226bfa2-3297-453a-b680-d8a34b1f98f8/">committee sued him</a> for his behavior while in office and asked that Clinton be disbarred for his behavior.</p>
<p>Clinton <a href="https://www.washingtonpost.com/archive/politics/2001/01/20/in-a-deal-clinton-avoids-indictment/bb80cc4c-e72c-40c1-bb72-55b2b81c3065/">settled</a> the suit by agreeing to a five year suspension of his law license, a $25,000 fine and public acknowledgment that he had violated the Arkansas Rules of Professional Conduct. He accepted a punishment far harsher than the reprimand normally given in similar situations, but escaped criminal prosecution. </p>
<h2>Preserving the rule of law</h2>
<p>Trump now faces multiple criminal investigations that could result in an indictment. No former president has faced so many possible indictments. </p>
<p>Any decision for or against indicting Trump could threaten the rule of law if it is not carefully considered and supported by the evidence. As weighty and historic as the decisions about indicting Trump may seem, they reflect the country’s larger struggle in navigating how to deal with presidential misconduct.</p>
<p>The next steps in Trump’s legal saga will be key in determining how our democracy decides to hold former presidents accountable for their misconduct.</p><img src="https://counter.theconversation.com/content/196559/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kirsten Matoy Carlson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Trump isn’t the first modern president with legal problems, but he would be the first former president to be indicted for alleged crimes.Kirsten Matoy Carlson, Professor of Law and Adjunct Professor of Political Science, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1815482022-06-02T18:56:15Z2022-06-02T18:56:15ZWhat 5 previous congressional investigations can teach us about the House Jan. 6 committee hearings<figure><img src="https://images.theconversation.com/files/466595/original/file-20220601-49081-yb92dg.jpeg?ixlib=rb-1.1.0&rect=10%2C0%2C3652%2C2422&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Chairman of the Senate Watergate Committee Sam Ervin sits with Chief Counsel Sam Dash, Sen. Howard Baker, staffer Rufus Edmiston and others as they listen to a witness during the Watergate hearings. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/chairman-of-the-senate-watergate-committee-sam-ervin-sits-news-photo/576823048?adppopup=true">Wally McNamee/CORBIS/Corbis via Getty Images</a></span></figcaption></figure><p>Public hearings to be held in June by the House committee investigating the Jan. 6, 2021, Capitol insurrection will attempt to <a href="https://www.theguardian.com/us-news/2022/may/23/capitol-attack-panel-public-hearings-trump">answer the question of whether</a> former President Donald Trump and his political allies broke the law in seeking to overturn the 2020 election results.</p>
<p>The Jan. 6 hearings are part of a <a href="https://time.com/5944289/jan-6-commission-history/">long history</a> of congressional investigation.</p>
<p>The <a href="https://www.levin-center.org/congress-first-investigation-general-st-clairs-defeat/">first congressional inquiry</a> occurred in the House in 1792 to investigate Gen. Arthur St. Clair’s role in the U.S. Army’s defeat in the Battle of the Wabash against the tribes of the Northwest Territory. The Senate conducted its <a href="https://www.jstor.org/stable/pdf/3124558.pdf">first official investigation</a> in 1818, looking into Gen. Andrew Jackson’s conduct in the Seminole War.</p>
<p>A look back at five of the most noteworthy congressional investigations since those initial probes suggests that Congress regularly has used its constitutional authority to gather facts and draw public attention to important issues in the country.</p>
<h2>Ku Klux Klan hearings</h2>
<p>In 1871, Congress <a href="https://www.washingtonpost.com/outlook/2021/01/08/1871-provides-roadmap-addressing-wednesdays-pro-trump-insurrection/">established a committee</a> to investigate violence against and intimidation of Black voters in several states.</p>
<p>A year later, the committee produced <a href="https://onlinebooks.library.upenn.edu/webbin/metabook?id=insurrection1872">13 volumes</a> of evidence containing the testimony of over 600 witnesses describing systemic violence – including killings, beatings, lynchings and rapes – committed by the Ku Klux Klan, known also as the KKK. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/466604/original/file-20220601-49330-yh83ah.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A drawing depicts a man labeled 'White League' shaking hands with a Ku Klux Klan member over a shield illustrated with an African American couple holding a possibly dead baby. In the background is a man hanging from a tree." src="https://images.theconversation.com/files/466604/original/file-20220601-49330-yh83ah.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/466604/original/file-20220601-49330-yh83ah.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=743&fit=crop&dpr=1 600w, https://images.theconversation.com/files/466604/original/file-20220601-49330-yh83ah.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=743&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/466604/original/file-20220601-49330-yh83ah.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=743&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/466604/original/file-20220601-49330-yh83ah.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=934&fit=crop&dpr=1 754w, https://images.theconversation.com/files/466604/original/file-20220601-49330-yh83ah.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=934&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/466604/original/file-20220601-49330-yh83ah.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=934&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Congress investigated the racist violence of the KKK in 1871.</span>
<span class="attribution"><a class="source" href="https://www.loc.gov/resource/cph.3c28619/">Library of Congress</a></span>
</figcaption>
</figure>
<p>Despite extensive media coverage and the wealth of information uncovered by the committee, many Americans at that time <a href="https://www.jstor.org/stable/27919387">still questioned</a> the KKK’s existence.<br>
Such skepticism was supported by the Democratic minority report that accompanied Congress’ investigation. At a time when Democrats represented the party that had supported slavery, their report legitimized the KKK’s actions in undeniably racist language. Segments of the public <a href="https://www.washingtonpost.com/outlook/2022/03/13/what-history-says-about-jan-6-committee-investigation/">adopted</a> the bigoted language and ideas contained in the minority report for decades to come.</p>
<h2>Teapot Dome scandal</h2>
<p>In 1922, news broke that President Warren G. Harding’s administration had secretly leased federal oil fields to political allies. At the time, these no-bid contracts were valued at around <a href="https://www.usnews.com/news/articles/2008/01/11/bought-off-by-big-oil?context=amp">$200 million</a> – the equivalent of over $3 billion today.</p>
<p>The contracts were awarded by <a href="https://www.britannica.com/event/Teapot-Dome-Scandal">Secretary of the Interior Albert Fall</a>, a former senator and a friend of the president’s. </p>
<p>Congress opened an investigation into the matter, <a href="https://www.upi.com/Archives/1924/01/22/Senate-Committee-to-use-all-legal-powers-to-investigate-Teapot-Dome/8404631771198/">and a UPI news story said</a> on Jan. 22, 1924, “The assistance of Department of Justice agents, United States marshals and the federal courts will be invoked if necessary, senators said, to force the truth from reluctant witnesses.” </p>
<p>As a result of the investigation, Fall resigned and was later convicted of bribery. He was the <a href="https://millercenter.org/president/harding/essays/fall-1921-secretary-of-the-interior">first former Cabinet official</a> in history to be sentenced to prison because of misconduct in office.</p>
<p>Harding is <a href="http://content.time.com/time/specials/packages/article/0,28804,1879648_1879646_1879696,00.html">considered</a> to be one of the country’s worst presidents, in part because of the scandal and corruption brought to light by Congress’ investigation. </p>
<h2>Organized crime and the Kefauver Committee</h2>
<p>In 1950, Congress formed a special committee <a href="https://catalog.archives.gov/id/10449541">in response</a> to a series of news articles suggesting that organized crime was corrupting many local government officials. It was referred to as the Kefauver Committee after its chairman, Democratic Senator Estes Kefauver of Tennessee. The committee launched an investigation, traveling to 14 major cities in the process.</p>
<p>The committee’s hearings rank among the <a href="https://www.senate.gov/about/powers-procedures/investigations/kefauver.htm">most widely viewed congressional investigations</a> in history. It is estimated that <a href="https://www.smithsonianmag.com/history/the-senator-and-the-gangsters-69770823/">90% of televisions</a> in America were tuned in to the hearings.</p>
<p>In part, what made the investigation such good TV was the <a href="https://www.senate.gov/about/resources/pdf/kefauver-committee-full-citations.pdf">cast of characters</a> subpoenaed to testify. Mobsters, their girlfriends, former elected officials and their lawyers paraded into the hearings, all captured on live television.</p>
<p>Not all witnesses complied with the subpoenas. In fact, the Senate approved <a href="https://library.cqpress.com/cqalmanac/document.php?id=cqal51-889-29670-1406711">45 contempt of Congress citations</a> in 1951 alone. <a href="https://www.pbs.org/wgbh/americanexperience/features/lasvegas-kefauver/">Litigation over witness noncompliance continued</a> in most cases even after the committee issued its over 11,000-page final report. </p>
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<a href="https://images.theconversation.com/files/466591/original/file-20220601-48778-yx23wp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A crowded room where a handful of men are sitting at a raised desk, while one woman talks in the audience" src="https://images.theconversation.com/files/466591/original/file-20220601-48778-yx23wp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/466591/original/file-20220601-48778-yx23wp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=464&fit=crop&dpr=1 600w, https://images.theconversation.com/files/466591/original/file-20220601-48778-yx23wp.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=464&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/466591/original/file-20220601-48778-yx23wp.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=464&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/466591/original/file-20220601-48778-yx23wp.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=584&fit=crop&dpr=1 754w, https://images.theconversation.com/files/466591/original/file-20220601-48778-yx23wp.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=584&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/466591/original/file-20220601-48778-yx23wp.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=584&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Virginia Hill Hauser, onetime girlfriend of mobster Bugsy Siegel, talks as members of the Kefauver Senate Crime Investigating Committee listen to her testimony during interstate crime probe hearings at a federal courthouse in New York City on March 15, 1951.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/VirginiaHillHauser/86b0ef78e34f4517aa4b75dc64b0bb6e/photo?Query=Kefauver%20committee&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=65&currentItemNo=15">AP Photo</a></span>
</figcaption>
</figure>
<h2>Watergate</h2>
<p>In 1973, after seven men from President Richard Nixon’s reelection campaign broke into the headquarters of the Democratic National Committee, <a href="https://www.levin-center.org/the-watergate-hearings/">the Senate voted 77-0</a> to establish a committee to investigate the break-in.</p>
<p>Throughout the investigation, President Nixon <a href="https://www.senate.gov/about/powers-procedures/investigations/watergate.htm">refused to cooperate</a> with the committee’s requests for information and directed his aides to do the same. He claimed <a href="https://constitutioncenter.org/blog/anniversary-of-united-states-v-nixon">executive privilege</a> gave him the right to refuse to hand over White House records, including audiotapes, and <a href="https://www.washingtonpost.com/history/2022/02/07/presidential-records-act-trump-nixon/">planned</a> for many of them to be destroyed. </p>
<p>The battle between the president and Congress went to court and, <a href="https://www.washingtonpost.com/history/2019/10/03/inside-supreme-court-ruling-that-made-nixon-turn-over-his-watergate-tapes/">hours before</a> the House was scheduled to start debating whether to impeach him, the Supreme Court <a href="https://supreme.justia.com/cases/federal/us/418/683/">ruled</a> against Nixon.</p>
<p>The tapes showed Nixon had, despite his denials, taken part in the cover-up. Nixon lost the support of prominent Republicans in Congress, and he resigned shortly thereafter to <a href="https://www.history.com/this-day-in-history/nixon-resigns">avoid impeachment</a>. </p>
<h2>Intelligence community and the Church Committee</h2>
<p>In addition to revealing presidential misconduct, the Watergate Committee investigation found evidence that the U.S. intelligence community was conducting <a href="https://www.senate.gov/about/powers-procedures/investigations/church-committee.htm">potentially unconstitutional</a> domestic operations, including spying on U.S. citizens. </p>
<p>Then, in 1974, The New York Times published an <a href="https://www.nytimes.com/1974/12/22/archives/huge-cia-operation-reported-in-u-s-against-antiwar-forces-other.html">extensive investigation</a> by reporter Seymour M. Hersh suggesting that the CIA maintained at least 10,000 intelligence files on U.S. citizens.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/466606/original/file-20220601-48874-a0wqb1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men sitting at a table, one holding up an oddly shaped gun." src="https://images.theconversation.com/files/466606/original/file-20220601-48874-a0wqb1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/466606/original/file-20220601-48874-a0wqb1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=373&fit=crop&dpr=1 600w, https://images.theconversation.com/files/466606/original/file-20220601-48874-a0wqb1.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=373&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/466606/original/file-20220601-48874-a0wqb1.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=373&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/466606/original/file-20220601-48874-a0wqb1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=469&fit=crop&dpr=1 754w, https://images.theconversation.com/files/466606/original/file-20220601-48874-a0wqb1.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=469&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/466606/original/file-20220601-48874-a0wqb1.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=469&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Chairman Frank Church, D-Idaho, of the Senate Intelligence Committee, displays a poison dart gun Sept. 17, 1975, as Co-Chairman John G. Tower, R-Texas, looks at the weapon during the panel’s probe of the Central Intelligence Agency.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CHURCHTOWER/b870744467e5da11af9f0014c2589dfb/photo?Query=Church%20Committee%20hearing&mediaType=photo&sortBy=arrivaldatetime:asc&dateRange=Anytime&totalCount=82&currentItemNo=9">AP Photo</a></span>
</figcaption>
</figure>
<p>In response, Congress established a special committee to investigate. The committee’s <a href="https://www.levin-center.org/frank-church-and-the-church-committee/">16-month inquiry</a> exposed the attempted assassinations of foreign political leaders, experiments conducted on U.S. citizens, and covert operations to recruit journalists to monitor private citizens’ communications and to spread propaganda over the media. </p>
<p>The committee found that <a href="https://www.senate.gov/about/powers-procedures/investigations/church-committee.htm">every presidential administration</a> from Franklin D. Roosevelt to Richard Nixon had abused its authority. </p>
<p>“Intelligence agencies have undermined the constitutional rights of citizens,” <a href="https://www.intelligence.senate.gov/resources/intelligence-related-commissions">the final report concluded</a>, “primarily because checks and balances designed by the framers of the Constitution to assure accountability have not been applied.”</p>
<h2>Mainstream oversight</h2>
<p>A few common themes run throughout these five noteworthy congressional investigations. </p>
<p>First, as the legacy of the Church Committee suggests, public hearings help provide a layer of <a href="https://www.washingtonpost.com/news/wonk/wp/2013/06/27/in-the-1970s-congress-investigated-intelligence-abuses-time-to-do-it-again/">transparency</a> to government.</p>
<p>Congress and the media can be <a href="https://press.princeton.edu/books/hardcover/9780691171852/investigating-the-president">allies</a> in investigation. Investigative reporting like in the work that revealed the <a href="https://www.newspapers.com/clip/33493758/wall-street-journal-reports-on-sinclair/">Teapot Dome scandal</a> and <a href="https://www.npr.org/2014/06/13/321316118/40-years-on-woodward-and-bernstein-recall-reporting-on-watergate">Watergate</a> can lay the groundwork for congressional probes. And media coverage of proceedings like the <a href="https://www.senate.gov/about/resources/pdf/kefauver-committee-full-citations.pdf">Kefauver Committee’s investigation</a> not only raises public awareness but also puts pressure on federal, state and local government officials to act.</p>
<p>But party can get in the way. In one example, partisan infighting and the Democrats’ rejection of the KKK proceedings hindered Congress’ effectiveness and <a href="https://www.heraldnet.com/opinion/comment-jan-6-panel-must-avoid-fate-of-congress-klan-report/">provided a narrative</a> that helped justify Jim Crow laws and other racist policies.</p>
<p>Similarly, party loyalty led many Republicans to remain <a href="https://fivethirtyeight.com/features/it-took-a-long-time-for-republicans-to-abandon-nixon/">vocal in support of Nixon</a> until the full scope of the president’s actions were revealed through the Watergate investigation.</p>
<p>These moments in history also illustrate the importance of examining elected officials’ political support networks. </p>
<p>When President Harding assumed office, he placed <a href="https://www.politico.com/magazine/story/2017/06/07/the-greatest-hearings-in-american-history-215237/">loyal allies</a> in government positions. While these allies helped reinforce Harding’s pledge to reorganize government and “<a href="https://millercenter.org/issues-policy/us-domestic-policy/making-teapot-dome-scandal-relevant-again">return to normalcy</a>,” they also perpetuated corruption. </p>
<p>Likewise, the Watergate investigation prompted <a href="https://www.vanityfair.com/news/2022/02/why-did-nixons-team-order-watergate-break-in-in-the-first-place">criminal charges</a> against 69 people, including two Cabinet officials. Additionally, dozens of major corporations pleaded guilty to illegally financing Nixon’s reelection campaign.</p>
<p>While the upcoming hearings of the House Jan. 6 investigative committee will be dealing with unprecedented events in American history, the very investigation of these events has strong precedent. Congress has long exercised its power to investigate some of the greatest problems facing the nation. In that way, the upcoming hearings fit squarely into the mainstream of American government oversight.</p><img src="https://counter.theconversation.com/content/181548/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The views expressed in this article are solely the views of the author and not the Carl Levin Center for Oversight and Democracy.</span></em></p>The public hearings of the House Jan. 6 investigative committee will deal with unprecedented events in American history, but the very investigation of these events has strong precedent.Jennifer Selin, Co-director, Washington Office, Carl Levin Center for Oversight and Democracy, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1753812022-01-20T19:16:29Z2022-01-20T19:16:29ZSupreme Court rejects Trump’s blocking of Jan. 6 docs: 3 key takeaways from ruling<figure><img src="https://images.theconversation.com/files/441785/original/file-20220120-17-1taf4y0.jpg?ixlib=rb-1.1.0&rect=8%2C0%2C2842%2C2021&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Some things can't be hidden from public view.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-waves-as-he-returns-to-the-white-news-photo/1177283798?adppopup=true">Mark Wilson/Getty Images</a></span></figcaption></figure><p>In a legal blow for Donald Trump, the <a href="https://news.bloomberglaw.com/us-law-week/supreme-court-rejects-trump-clears-disclosure-of-jan-6-papers">Supreme Court has cleared the way</a> for presidential records dating from his time in office to be turned over to a House committee investigating the Jan. 6 attack.</p>
<p>Trump, through his lawyers, had sought to shield over <a href="https://www.bloomberg.com/news/articles/2022-01-19/supreme-court-rejects-trump-clears-disclosure-of-jan-6-papers">800 pages of information</a> from the panel, citing <a href="https://www.economist.com/the-economist-explains/2021/11/10/what-is-executive-privilege">executive privilege</a>, which allows for a president to withhold certain information from public release. But in <a href="https://www.supremecourt.gov/opinions/21pdf/21a272_9p6b.pdf">a 8-1 ruling</a>, the Supreme Court on Jan. 19, 2022, rejected a request to block the documents from being handed to Congress.</p>
<p>The ruling has immediate – and potentially longer-term – consequences. Here are three key takeaways from the court’s decision. </p>
<h2>1. Executive power has its limits</h2>
<p>Trump has championed an expansive view of executive power. During his presidency, he refused to provide information to Congress by <a href="https://theconversation.com/courts-have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-wade-in-128269">asserting executive privilege</a> over a dozen times, issued executive orders in the face of congressional opposition, and even <a href="https://casetext.com/case/trump-v-mazars-usa-llp-2">sued his personal and business accountants</a> to prevent them from handing personal tax information over to Congress, which had subpoenaed those records.</p>
<p>Unlike previous presidents, Trump refused to negotiate with Congress over disclosing White House records. Instead, he took his fights with Congress to the courts.</p>
<p>Out of office, Trump continues to resist efforts to disclose information about his presidency. He has <a href="https://theconversation.com/steve-bannon-faces-criminal-charges-over-jan-6-panel-snub-setting-up-a-showdown-over-executive-privilege-169996">urged several former White House staffers</a> and advisers to claim executive privilege in response to subpoenas for information related to the Jan. 6 Capitol attack. The Congress has even had to take the extraordinary step of referring former Trump adviser <a href="https://theconversation.com/steve-bannon-faces-criminal-charges-over-jan-6-panel-snub-setting-up-a-showdown-over-executive-privilege-169996">Steve Bannon</a> and former <a href="https://www.nbcnews.com/politics/congress/house-expected-vote-mark-meadows-criminal-contempt-referral-n1285908">White House Chief of Staff</a> Mark Meadows to the Department of Justice for criminal contempt proceedings because they have refused to comply with subpoenas. </p>
<p>Federal courts <a href="https://theconversation.com/courts-have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-wade-in-128269">do not like to wade into disputes</a> between the executive branch and Congress, but Trump pushed them to do so.</p>
<p>In its short opinion, the Supreme Court rejected Trump’s expansive view of executive power. The court denied Trump’s request to prevent the National Archives from releasing documents to the committee, stating that his case to shield the records could not prevail “<a href="https://www.supremecourt.gov/opinions/21pdf/21a272_9p6b.pdf">under any of the tests</a> [he] advocated.” </p>
<p>The court added, “Because the court of appeals concluded that President Trump’s claims would have failed even if he were the incumbent, his status as a former president necessarily made no difference in the decision.”</p>
<p>It isn’t the first time that the Supreme Court has had to wade into the issue of Trump’s attempted use of executive power to withhold information from Congress.</p>
<p>In a 2020 ruling in <a href="https://casetext.com/case/trump-v-mazars-usa-llp-2">Trump v. Mazars</a> – in which Trump sued his accountants in a bid to prevent their release of tax documents to Congress – the court rejected Trump’s claim of absolute immunity from congressional process and crafted a new analysis to determine when Congress can obtain a president’s personal records.</p>
<p>Similarly, in the latest ruling the Supreme Court appears to be pushing back against Trump’s expansive view of executive power in favor of a more balanced approach.</p>
<h2>2. Unanswered question over ex-presidents and executive privilege</h2>
<p>Although the justices questioned Trump’s expansive view on executive power, the Supreme Court ruling still preserves the ability of a former president to raise such a claim.</p>
<p>This is consistent with <a href="https://theconversation.com/house-committee-investigating-capitol-insurrection-has-a-lot-of-power-but-its-unclear-it-can-force-trump-to-testify-165294">a landmark 1977 decision</a> in which the Supreme Court held that former President Richard Nixon could claim executive privilege in challenging a federal law known as “The Presidential Recordings and Materials Preservation Act.”</p>
<p>That <a href="https://www.archives.gov/presidential-libraries/laws/1974-act.html">law ensured that government agencies</a> – and, ultimately, the public – could obtain certain documents and tape recordings made during Nixon’s presidency.</p>
<p>The court allowed Nixon to make the executive privilege claim, but it ultimately ruled against him. In upholding the law, the Supreme Court noted that the lack of support for Nixon’s claim by other presidents weakened his case for executive privilege. </p>
<p>The court, in its latest ruling, did not consider the questions of whether and under what conditions a former president may be able to prevail on a claim of executive privilege.</p>
<h2>3. The importance of congressional oversight</h2>
<p>The Supreme Court’s ruling also reiterated the importance of congressional oversight, and the need for the American people to learn the truth about what happened on Jan. 6, 2021.</p>
<p>[<em>Over 140,000 readers rely on The Conversation’s newsletters to understand the world.</em> <a href="https://memberservices.theconversation.com/newsletters/?source=inline-140ksignup">Sign up today</a>.]</p>
<p>By paving the way for the House Select Committee to access hundreds of documents – including visitor and call logs, emails, draft speeches and handwritten notes – the court has seemingly recognized that a healthy, stable democracy depends on people knowing what their government is doing so they can hold elected officials accountable.</p>
<p>As such, the Supreme Court has indicated a willingness to protect a constitutional system that can ensure transparency and accountability by legitimizing legislative branch oversight over the executive.</p><img src="https://counter.theconversation.com/content/175381/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kirsten Matoy Carlson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Justices have cleared the way for hundreds of Trump administration documents to be handed to a panel investigating the Jan. 6 attack. A law scholar explains what that means for executive privilege.Kirsten Matoy Carlson, Associate Professor of Law and Adjunct Associate Professor of Political Science, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1730162021-12-10T00:34:26Z2021-12-10T00:34:26ZAppeals court says Trump has given ‘no legal reason’ to defy Congress’ demand for Jan. 6 documents, but Supreme Court may have final say<figure><img src="https://images.theconversation.com/files/436809/original/file-20211209-140267-1ddxyuh.jpg?ixlib=rb-1.1.0&rect=8%2C8%2C5699%2C3722&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">All eyes are now on Donald Trump's White House records.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/an-image-of-president-donald-trump-appears-on-video-screens-news-photo/1230450967?adppopup=true">Bill Clark/CQ-Roll Call, Inc via Getty Images</a></span></figcaption></figure><p>Former President Donald Trump has <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/913002F9EFB94590852587A60075CC4F/$file/21-5254-1926128.pdf">lost his latest legal battle</a> over documents relating to the Jan. 6 attack on the Capitol, in a case that tests the power of a former president to withhold his records from Congressional scrutiny.</p>
<p>On Dec. 9, 2021, the D.C. Circuit Court of Appeals court said that the Congressional committee investigating the Capitol attack should have access to a trove of evidence that Trump is attempting to shield from the panel.</p>
<p>It is the latest ruling in a series of court cases in which Trump has fought legal demands from Congress for documents from his administration. This legal battle pitted the untested powers of a former president to keep his papers from public view against the proven power of the current president to determine which administration documents – from former or current presidents – can be released to the public. The battle is likely headed to the Supreme Court. </p>
<h2>How did we get here?</h2>
<p>After Jan. 6, the House of Representatives established a <a href="https://january6th.house.gov">select committee</a> to investigate the facts and circumstances surrounding the attack. <a href="https://www.npr.org/2021/07/27/1020713409/here-are-the-9-lawmakers-investigating-the-jan-6-capitol-attack">Of the nine members</a>, two are Republicans; all were appointed by House Speaker Nancy Pelosi.</p>
<p>As part of the committee’s investigation, Congress sought to obtain records – including visitor logs, handwritten notes and speech drafts – from Trump’s period in office that relate to the Capitol attack. </p>
<p>In addition to <a href="https://theconversation.com/house-committee-investigating-capitol-insurrection-has-a-lot-of-power-but-its-unclear-it-can-force-trump-to-testify-165294">issuing subpoenas</a> to Trump aides for documents and testimony – with varying degree of success in getting former administration officials to comply – the select committee requested presidential records that were held by the National Archives. </p>
<p><a href="https://www.law.cornell.edu/uscode/text/44/2201">Presidential records</a> are materials created or received by the president or his immediate staff to help the president carry out his constitutional duties. </p>
<p>Federal law regulates access to those records. </p>
<p>Under the <a href="https://www.archives.gov/about/laws/presidential-records.html">Presidential Records Act</a>, once a president leaves office, it becomes the job of the archivist of the United States to preserve the former president’s documents. The archivist also controls their release. </p>
<p>This means the select committee had to <a href="https://www.archives.gov/foia/january-6-committee">ask the archivist</a> for access to Trump’s records.</p>
<p>The law requires that, after the archivist receives such a request, he notify both the former president, in this case Trump, and the current president, Joe Biden. If either man felt that the records contained constitutionally protected information that should not be disclosed, either had 30 calendar days to assert that claim.</p>
<p>Trump <a href="https://www.archives.gov/files/foia/pdf/trump-to-ferriero-re-executive-privilege-2021-10-08-1.pdf">did just that</a>. He told the archivist that he believed the records were protected by executive privilege and that they could not be disclosed. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/436817/original/file-20211209-25-q3b80v.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Judge Millett at her confirmation hearing, wearing pearls, a beige shirt and dark jacket. She has short, brown hair." src="https://images.theconversation.com/files/436817/original/file-20211209-25-q3b80v.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/436817/original/file-20211209-25-q3b80v.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=812&fit=crop&dpr=1 600w, https://images.theconversation.com/files/436817/original/file-20211209-25-q3b80v.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=812&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/436817/original/file-20211209-25-q3b80v.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=812&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/436817/original/file-20211209-25-q3b80v.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1020&fit=crop&dpr=1 754w, https://images.theconversation.com/files/436817/original/file-20211209-25-q3b80v.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1020&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/436817/original/file-20211209-25-q3b80v.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1020&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Judge Patricia Millett wrote the decision for the three-judge panel of the U.S. Court of Appeals, District of Columbia circuit.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/senatormarkwarner/9256234736/">Sen. Mark Warner flickr account</a></span>
</figcaption>
</figure>
<h2>What is executive privilege?</h2>
<p><a href="https://caselaw.findlaw.com/us-dc-circuit/1433973.html">Executive privilege</a> enables presidents and executive branch officials to withhold documents that would reveal the opinions, recommendations and deliberations on which governmental decisions and policies are based. This privilege exists to <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/psq.12714?casa_token=5vGaOuTbnY4AAAAA:jftwxo9gbOzprGT7Gd6X4C3liaxRCc8SBvGOWoIPB3ntK-DpQHaXwzGMqJu6OIK2S6jm4NZ-tBF4CjU">encourage candor</a> among presidential advisers by preserving the confidentiality of their communications. </p>
<p>Trump has argued that some of the documents the select committee requested from the archivist reflect deliberations that he asserted should remain confidential. <a href="https://www.rollcall.com/2021/11/30/appeals-court-weighs-trumps-push-to-block-jan-6-records/">According to Trump’s legal team</a>, releasing the documents would hurt the office of the president by compromising the ability of future presidents to rely on full and frank advice. </p>
<p>For example, Presidents <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/tlr88&div=14&id=&page=">Harry Truman, Richard Nixon</a> and <a href="https://www.lawfareblog.com/executive-privilege-and-jan-6-investigation">George W. Bush</a> all argued that the modern realities of the presidency require that presidents be able keep some information secret even after leaving office. </p>
<p>However, this is the <a href="http://cdn.cnn.com/cnn/2021/images/11/09/ruling.pdf">first case</a> in which a former president has asserted executive privilege and the current president disagreed.</p>
<h2>Biden v. Trump</h2>
<p>Under the Presidential Records Act, the archivist must consult with the incumbent president when a former president asserts a claim of privilege. </p>
<p>When Archivist David Ferriero did so, the Biden White House said asserting executive privilege would not be in the best interests of the country and <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/10/13/second-letter-from-dana-a-remus-counsel-to-the-president-to-david-ferriero-archivist-of-the-united-states-dated-october-8-2021/">instructed</a> the archivist to grant the select committee access to the records.</p>
<p>Trump then <a href="https://www.lawfareblog.com/trump-files-lawsuit-against-jan-6-committee-and-nara">went to court</a>. Among other things, he asked the judiciary to prevent the archivist from giving the disputed records to the select committee.</p>
<p>On Nov. 9, 2021, the District Court <a href="https://www.cnn.com/2021/11/09/politics/trump-injunction-denied-national-archives-records-january-6/index.html">denied</a> Trump’s request.</p>
<p>Trump <a href="https://www.politico.com/news/2021/11/30/trump-jan-6-appeals-court-523484">appealed</a> the decision.</p>
<p>Then, on Dec. 9, the Circuit Court <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/913002F9EFB94590852587A60075CC4F/$file/21-5254-1926128.pdf">ruled</a> that Trump had provided insufficient legal basis for overriding Biden’s decision. In the opinion, the court noted that the “profound interests in disclosure” of the documents far outweighed Trump’s concerns about executive privilege.</p>
<h2>Supreme Court next?</h2>
<p>The D.C. District Court ended its opinion by saying that the “events of January 6th exposed the fragility of those democratic institutions and traditions that we had perhaps come to take for granted. In response, the President of the United States and Congress have each made the judgment that access to this subset of presidential communication records is necessary to address a matter of great constitutional moment for the Republic. </p>
<p>"Former President Trump has given this court no legal reason to cast aside President Biden’s assessment of the Executive Branch
interests at stake, or to create a separation of powers conflict that the Political Branches have avoided.”</p>
<p>This case is just the latest in a <a href="https://theconversation.com/steve-bannon-indicted-over-jan-6-panel-snub-pushing-key-question-over-presidential-power-to-the-courts-171794">series of battles</a> over congressional access to information from the Trump administration.</p>
<p>The D.C. Circuit Court acknowledged the implications of these battles in its opinion and noted that arguments over the documents are best worked out between the political branches of government.</p>
<p>Yet, these disputes raise real <a href="https://www.theatlantic.com/ideas/archive/2021/10/january-6-trump-executive-privilege-biden/620393/">separation of powers concerns</a>, particularly – as here – when the executive and legislative branches look to the courts to serve as an umpire. Also at stake is how much power Congress has to hold the president accountable. As a result, the case is very likely headed to the Supreme Court.</p>
<p>[<em><a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-important">Get The Conversation’s most important politics headlines, in our Politics Weekly newsletter</a>.</em>]</p><img src="https://counter.theconversation.com/content/173016/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer L. Selin has received funding and/or support for her research on Congress and the executive branch from the Center for Effective Lawmaking, Dirksen Congressional Center, Kinder Institute on Constitutional Democracy, and Levin Center at Wayne Law.</span></em></p>Diaries, visitor logs, handwritten notes and speech drafts are among the records Donald Trump has tried to keep from a Congressional committee investigating the Capitol riot of Jan. 6.Jennifer Selin, Kinder Institute Assistant Professor of Constitutional Democracy, University of Missouri-ColumbiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1717942021-11-12T23:51:19Z2021-11-12T23:51:19ZSteve Bannon indicted over Jan. 6 panel snub, pushing key question over presidential power to the courts<figure><img src="https://images.theconversation.com/files/431759/original/file-20211112-25883-1ru1mkn.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3994%2C2658&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Bannon faces potential jail time for contempt of Congress.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trumps-former-chief-strategist-stephen-news-photo/1228130608?adppopup=true">Bryan Smith/AFP via Getty Images</a></span></figcaption></figure><p>Former Trump ally Steve Bannon faces possible fines and <a href="https://www.npr.org/2021/11/12/1054309797/steve-bannon-contempt-congress-justice-department">time behind bars</a> after being indicted on two counts of contempt of Congress. </p>
<p>The criminal charges, announced on Nov. 12, 2021, by the Department of Justice, follow a vote by the <a href="https://apnews.com/article/steve-bannon-donald-trump-capitol-siege-subpoenas-congress-f1807d868003e4e93ca9bf59d7821e90">House of Representatives in October to hold Bannon in contempt</a> when he defied a subpoena issued by a congressional committee investigating the Jan. 6 attack on the Capitol. Bannon’s lawyers have said their client refused to testify in accordance with the <a href="https://www.nytimes.com/2021/10/21/us/politics/bannon-contempt-jan-6-subpoena.html">instructions of former President Donald Trump</a>.</p>
<p>The indictment is the <a href="https://www.nbcnews.com/politics/justice-department/former-trump-adviser-steve-bannon-indicted-federal-grand-jury-contempt-n1283834">first in history</a> to involve a contempt prosecution of someone claiming executive privilege.</p>
<p>But Trump and his advisers aren’t the first to try to keep some details of a president’s time in office from wider view. <a href="https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1172&context=dlj">Every president in history</a> has refused to disclose information to Congress. These refusals are so commonplace that there is <a href="https://www.justice.gov/sites/default/files/olc/opinions/1983/01/31/op-olc-v006-p0782_0.pdf">not even a comprehensive listing</a> of how often they occur.</p>
<p>The indictment of Bannon captures a <a href="https://theconversation.com/can-congress-hold-trump-accountable-4-essential-reads-on-a-historic-power-struggle-128900">near-constant power struggle</a> between presidents and Congress.</p>
<p>It also raises questions about the constitutional authority of Congress and how lawmakers acquire the information needed to hold the executive branch accountable in the <a href="https://www.law.cornell.edu/wex/separation_of_powers_0#:%7E:text=Separation%20of%20Powers%20in%20the,branch%20from%20becoming%20too%20powerful.">U.S. system of separation of powers</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Steve Bannon getting into a limousine amid a crowd." src="https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Steve Bannon, former White House senior counselor to President Donald Trump.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-white-house-senior-counselor-to-president-donald-news-photo/1186387838?adppopup=true">Alex Wong/Getty Images</a></span>
</figcaption>
</figure>
<h2>Power to investigate</h2>
<p>No constitutional provision explicitly states that Congress has the authority to investigate <a href="https://supreme.justia.com/cases/federal/us/354/178/">problems or defects</a> in the nation’s social, economic or political systems. But the legislature’s power to acquire information through investigation is an <a href="https://supreme.justia.com/cases/federal/us/341/367/">established</a> part of representative democracy.</p>
<p>This is true regardless of the investigation’s end result or even whether critics accuse Congress of being partisan. As the <a href="https://supreme.justia.com/cases/federal/us/421/491/">Supreme Court</a> put it in 1975, democratic governance means that some investigations may be nonproductive. In “times of political passion,” the court said, “dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed.”</p>
<p><a href="https://supreme.justia.com/cases/federal/us/166/661/">More than 200 years of Supreme Court precedent</a> also recognizes that the fundamental right of Congress to investigate includes the power of subpoena, which compels testimony by an individual or requires production of evidence.</p>
<p>But the power of subpoena is of little value without the ability to enforce it. That mechanism is called contempt. </p>
<h2>How contempt works</h2>
<p>If a target of a congressional investigation refuses to comply with a subpoena, Congress can hold the individual in contempt. There are three forms of contempt – inherent, civil and criminal – each of which relies on a different branch of government for enforcement. </p>
<p>Congress has its <a href="https://supreme.justia.com/cases/federal/us/19/204/">own power</a> to enforce a subpoena. However, to use that power, Congress has to conduct a trial and then find the individual in contempt. Because this process is lengthy and cumbersome, Congress has <a href="https://sgp.fas.org/crs/misc/RL34097.pdf">not used it</a> since the 1930s. </p>
<p>Congress can also ask the courts to declare an individual in contempt. Known as civil contempt, this method requires a resolution authorizing a congressional committee or the House general counsel’s office to file a civil lawsuit. The courts then determine whether Congress has the right to the information it has demanded.</p>
<p>Congress used this power in the past three presidential administrations – <a href="https://crsreports.congress.gov/product/pdf/RL/RL30240/37">Bush, Obama and Trump</a> – to acquire information. </p>
<p>However, civil contempt is also slow moving. For example, Congress held Attorney General Eric Holder in civil contempt in 2012 for withholding information relating to <a href="https://www.thedailybeast.com/what-is-operation-fast-and-furious-11-questions-and-answers">Operation Fast and Furious</a>, a Department of Justice policy that allowed certain illegal gun sales in order to track Mexican drug cartels. Congress eventually obtained some records, but it took <a href="https://www.politico.com/story/2019/05/09/fast-and-furious-documents-holder-1313120">seven years </a> for courts to reach a settlement. </p>
<p>The last form of contempt relies on the executive branch – specifically the Department of Justice and U.S. attorneys – for enforcement. If someone refuses to testify or produce documents, a congressional committee can first cite the individual in <a href="https://www.law.cornell.edu/uscode/text/2/192">criminal contempt</a> and then ask its chamber of Congress to adopt a resolution affirming the committee’s decision. After that resolution, the Department of Justice and U.S. attorneys decide whether to pursue the matter in court. </p>
<p><a href="https://www.cnn.com/2021/10/21/politics/steve-bannon-house-contempt-vote/index.html">Criminal contempt is what the House used in the Bannon</a> case.</p>
<p>[<em>Over 115,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-newsletter-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p>
<h2>Bannon’s defiance</h2>
<p>In June 2021, the <a href="https://www.congress.gov/bill/117th-congress/house-resolution/503/text">House of Representatives established</a> a select committee to investigate the facts and circumstances surrounding the Jan. 6 attack on the Capitol. As part of the select committee’s investigation, committee Chairman <a href="https://www.cnbc.com/2021/09/23/house-committee-probing-jan-6-capitol-riot-subpoenas-four-trump-allies-including-mark-meadows-and-steve-bannon.html">Bennie Thompson signed a subpoena</a> requiring Bannon to produce documents by Oct. 7 and to appear for a deposition on Oct. 14. </p>
<p>In response to the subpoena, former President Trump <a href="https://www.nytimes.com/2021/10/07/us/politics/jan-6-subpoenas.html">instructed Bannon</a> not to comply.</p>
<p>Bannon <a href="https://www.jurist.org/news/2021/10/house-committee-releases-contempt-report-on-stephen-bannon/">refused</a> to provide a single document or to appear for his deposition, citing Trump’s <a href="https://www.nytimes.com/2021/10/21/us/politics/bannon-contempt-jan-6-subpoena.html">directive</a>.</p>
<p>The select committee then issued a <a href="https://docs.house.gov/meetings/IJ/IJ00/20211019/114156/HRPT-117-NA.pdf">report</a> recommending that the House hold Bannon in criminal contempt. On Oct. 21, the House agreed with the committee’s recommendation and <a href="https://www.congress.gov/bill/117th-congress/house-resolution/730">adopted a resolution</a> finding Bannon in contempt.</p>
<p>After House Speaker Nancy Speaker Pelosi officially referred the case to the Department of Justice, Attorney General <a href="https://www.cnn.com/2021/10/21/politics/garland-house-judiciary-hearing-oversight/index.html">Merrick Garland said</a> the department would “apply the facts and the law when making the decision to prosecute.” </p>
<p>On Nov. 12, Garland <a href="https://www.justice.gov/opa/pr/stephen-k-bannon-indicted-contempt-congress">announced the charges</a>, noting: “The subpoena required him to appear and produce documents to the Select Committee, and to appear for a deposition before the Select Committee. According to the indictment, Mr. Bannon refused to appear to give testimony as required by subpoena and refused to produce documents in compliance with a subpoena.”</p>
<p>Each count of contempt carries a maximum sentence of one year in jail, along with fines of up to US$1,000.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Protesters brandishing flags reading 'Trump' and 'Dont Tread on Me'" src="https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The committee that issued the subpoena to Bannon is investigating the Jan. 6 Capitol riot by Trump supporters.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/protesters-supporting-u-s-president-donald-trump-break-into-news-photo/1294935650?adppopup=true">Win McNamee/Getty Images</a></span>
</figcaption>
</figure>
<h2>The catch</h2>
<p>While Bannon’s failure to comply with the congressional subpoena is striking, he needed to do so to challenge the subpoena. </p>
<p>To <a href="https://scholarship.law.cornell.edu/cjlpp/vol25/iss2/4/">legally contest</a> a congressional request for information, an individual first must refuse to comply and then, if held in criminal contempt, can provide a defense.</p>
<p>Bannon’s defense – and Trump’s instruction not to provide information to Congress – centers on the concept of executive privilege. Since President George Washington, <a href="https://theconversation.com/trump-ukraine-and-a-whistleblower-ever-since-1796-congress-has-struggled-to-keep-presidents-in-check-124146">executive officials have claimed</a> the ability to withhold certain information that is fundamental to the operation of government. These claims relate to the idea that confidentiality encourages candor among presidents and their advisers when making important governmental decisions and policies. </p>
<p>In a letter to Bannon and three others under congressional investigation, Trump’s lawyer <a href="https://time.com/6105290/steve-bannon-subpoean-trump-january-6-commission/">said they are protected</a> from compelled disclosure “by the executive and other privileges, including among others the presidential communications, deliberative process, and attorney-client privileges.”</p>
<p>Presidents and their advisers have always <a href="https://www.lawfareblog.com/executives-privilege-rethinking-presidents-power-withhold-information">interpreted executive privilege broadly</a>. However, President Trump and his advisers have taken an even <a href="https://theconversation.com/courts-have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-wade-in-128269">more expansive view</a> than previous administrations. </p>
<p>My own <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/psq.12714?casa_token=85PEfMDdpq0AAAAA:1bcmfrV-s4DNtPTj8AS5VCMkyTcmsiJ9i49Ro-pR7EIFo43xJhc6_VcSkbuz7iQ5tmkRmnjQwJTbBfU">research</a> suggests that Trump and his advisers have asserted this privilege in at least 84 different federal cases. In contrast, in President Obama’s first term, only 37 federal cases involved executive privilege claims. The claims in both administrations were made in a range of cases, from Freedom of Information Act lawsuits to lawsuits over agency actions.</p>
<p>Courts have <a href="https://law.justia.com/cases/federal/appellate-courts/cadc/08-5357/08-5357-1142234-2011-03-24.html">recognized</a> that cases over congressional access to information inevitably force the judiciary to side with one branch over the other. Yet <a href="https://casetext.com/case/oversight-v-holder">courts acknowledge</a> the need to arbitrate disputes resulting from congressional investigations, particularly when those investigations could implicate presidential misconduct or criminal activity. </p>
<p>At least <a href="https://archive.constitutionproject.org/wp-content/uploads/2009/07/WhenCongressComesCalling.pdf">14 presidential administrations</a> have been the subject of investigations that required sitting or former presidents and their advisers to produce evidence. Legal disputes over these investigations have rarely made it to court.</p>
<p>But Bannon has <a href="https://www.politico.com/news/2021/10/19/jan-6-commission-steve-bannon-criminal-contempt-516233">made it clear</a> that he will not cooperate with Congress until the judiciary steps in.</p>
<p>How the courts handle the matter will have implications for how Congress holds current and future presidential administrations accountable.</p>
<p><em>This article is an updated version of a story that was <a href="https://theconversation.com/steve-bannon-is-held-in-criminal-contempt-of-congress-pushing-key-question-over-presidential-power-to-the-courts-170426">originally published</a> on Oct. 29, 2021.</em></p><img src="https://counter.theconversation.com/content/171794/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer L. Selin has received funding and/or support for her research on Congress and the executive branch from the Center for Effective Lawmaking, Dirksen Congressional Center, Kinder Institute on Constitutional Democracy, and Levin Center at Wayne Law.</span></em></p>Donald Trump asked former aides not to testify before a committee investigating the Jan. 6 Capitol insurrection. The Department of Justice has now charged one over that refusal.Jennifer Selin, Kinder Institute Assistant Professor of Constitutional Democracy, University of Missouri-ColumbiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1704262021-10-29T12:37:47Z2021-10-29T12:37:47ZSteve Bannon is held in criminal contempt of Congress, pushing key question over presidential power to the courts<figure><img src="https://images.theconversation.com/files/428905/original/file-20211027-25602-1wacc4i.jpeg?ixlib=rb-1.1.0&rect=16%2C8%2C5618%2C3742&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">U.S. Reps. Bennie Thompson and Liz Cheney, chair and vice chair of the committee investigating the Capitol insurrection, after voting to hold Steve Bannon in criminal contempt.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/rep-bennie-thompson-chair-of-the-select-committee-news-photo/1347577606?adppopup=true">Alex Wong/Getty Images</a></span></figcaption></figure><p><a href="https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1172&context=dlj">Every president in history</a> has refused to disclose information to Congress. These refusals are so commonplace that there is <a href="https://www.justice.gov/sites/default/files/olc/opinions/1983/01/31/op-olc-v006-p0782_0.pdf">not even a comprehensive listing</a> of how often they occur.</p>
<p>In just the latest incident, the <a href="https://apnews.com/article/steve-bannon-donald-trump-capitol-siege-subpoenas-congress-f1807d868003e4e93ca9bf59d7821e90">House of Representatives voted to hold former Trump adviser Steve Bannon in contempt</a> of Congress in mid-October 2021. At <a href="https://www.nytimes.com/2021/10/21/us/politics/bannon-contempt-jan-6-subpoena.html">Trump’s request, Bannon defied a subpoena</a> from the committee investigating the Capitol insurrection, refusing to testify. </p>
<p>The House vote captured the <a href="https://theconversation.com/can-congress-hold-trump-accountable-4-essential-reads-on-a-historic-power-struggle-128900">constant power struggle</a> between presidents and Congress.</p>
<p>The recent eruption of this battle between the two branches of government over access to presidential information raises questions about the constitutional authority of Congress and how lawmakers acquire the information needed to hold the executive branch accountable in the <a href="https://www.law.cornell.edu/wex/separation_of_powers_0#:%7E:text=Separation%20of%20Powers%20in%20the,branch%20from%20becoming%20too%20powerful.">U.S. system of separation of powers</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Steve Bannon getting into a limousine amid a crowd." src="https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/428907/original/file-20211027-14962-xepxpq.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Steve Bannon, former White House senior counselor to President Donald Trump.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-white-house-senior-counselor-to-president-donald-news-photo/1186387838?adppopup=true">Alex Wong/Getty Images</a></span>
</figcaption>
</figure>
<h2>Power to investigate</h2>
<p>No constitutional provision explicitly states that Congress has the authority to investigate <a href="https://supreme.justia.com/cases/federal/us/354/178/">problems or defects</a> in the nation’s social, economic or political systems. But the legislature’s power to acquire information through investigation is an <a href="https://supreme.justia.com/cases/federal/us/341/367/">established</a> part of representative democracy.</p>
<p>This is true regardless of the investigation’s end result or even whether critics accuse Congress of being partisan. As the <a href="https://supreme.justia.com/cases/federal/us/421/491/">Supreme Court</a> put it in 1975, democratic governance means that some investigations may be nonproductive. In “times of political passion,” the court said, “dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed.”</p>
<p><a href="https://supreme.justia.com/cases/federal/us/166/661/">Over 200 years of Supreme Court precedent</a> also recognizes that the fundamental right of Congress to investigate includes the power of subpoena, which compels testimony by an individual or requires them to produce evidence.</p>
<p>But the power of subpoena is of little value without the ability to enforce it. That mechanism is called contempt. </p>
<h2>How contempt works</h2>
<p>If a target of a congressional investigation refuses to comply with a subpoena, Congress can hold the individual in contempt. There are three forms of contempt – inherent, civil and criminal – each of which relies on a different branch of government for enforcement. </p>
<p>Congress has its <a href="https://supreme.justia.com/cases/federal/us/19/204/">own power</a> to enforce a subpoena. However, to use that power, Congress has to conduct a trial and then find the individual in contempt. Because this process is lengthy and cumbersome, Congress has <a href="https://sgp.fas.org/crs/misc/RL34097.pdf">not used it</a> since the 1930s. </p>
<p>Congress can also ask the courts to declare an individual in contempt. Known as civil contempt, this method requires a resolution authorizing a congressional committee or the House general counsel’s office to file a civil lawsuit. The courts then determine whether Congress has the right to the information it has demanded.</p>
<p>Congress used this power in the past three presidential administrations – <a href="https://crsreports.congress.gov/product/pdf/RL/RL30240/37">Bush, Obama and Trump</a> – to acquire information. </p>
<p>However, civil contempt is also slow moving. For example, Congress held Attorney General Eric Holder in civil contempt in 2012 for withholding information relating to <a href="https://www.thedailybeast.com/what-is-operation-fast-and-furious-11-questions-and-answers">Operation Fast and Furious</a>, a Department of Justice policy that allowed certain illegal gun sales in order to track Mexican drug cartels. Congress eventually obtained some records, but it took <a href="https://www.politico.com/story/2019/05/09/fast-and-furious-documents-holder-1313120">seven years </a> for courts to reach a settlement. </p>
<p>The last form of contempt relies on the executive branch – specifically the Department of Justice and U.S. attorneys – for enforcement. If someone refuses to testify or produce documents, a congressional committee can first cite the individual in <a href="https://www.law.cornell.edu/uscode/text/2/192">criminal contempt</a> and then ask its chamber of Congress to adopt a resolution affirming the committee’s decision. After that resolution, the Department of Justice and U.S. attorneys decide whether to pursue the matter in court. </p>
<p><a href="https://www.cnn.com/2021/10/21/politics/steve-bannon-house-contempt-vote/index.html">Criminal contempt is what the House used in the Bannon</a> case.</p>
<h2>Bannon’s defiance</h2>
<p>In June 2021, the House of Representatives <a href="https://www.congress.gov/bill/117th-congress/house-resolution/503/text">established</a> a select committee to investigate the facts and circumstances surrounding the Jan. 6 attack on the Capitol. As part of the select committee’s investigation, committee Chairman <a href="https://www.cnbc.com/2021/09/23/house-committee-probing-jan-6-capitol-riot-subpoenas-four-trump-allies-including-mark-meadows-and-steve-bannon.html">Bennie Thompson signed a subpoena</a> requiring Bannon to produce documents by Oct. 7 and to appear for a deposition on Oct. 14. </p>
<p>In response to the subpoena, former President Trump <a href="https://www.nytimes.com/2021/10/07/us/politics/jan-6-subpoenas.html">instructed Bannon,</a> his former aide, not to comply.</p>
<p>Bannon <a href="https://www.jurist.org/news/2021/10/house-committee-releases-contempt-report-on-stephen-bannon/">refused</a> to provide a single document or appear for his deposition, citing Trump’s <a href="https://www.nytimes.com/2021/10/21/us/politics/bannon-contempt-jan-6-subpoena.html">directive</a>.</p>
<p>The select committee then issued a <a href="https://docs.house.gov/meetings/IJ/IJ00/20211019/114156/HRPT-117-NA.pdf">report</a> recommending that the House hold Bannon in criminal contempt. On Oct. 21, the House agreed with the committee’s recommendation and <a href="https://www.congress.gov/bill/117th-congress/house-resolution/730">adopted a resolution</a> finding Bannon in contempt. </p>
<p>House Speaker <a href="https://www.npr.org/2021/10/21/1048051026/u-s-house-approves-criminal-contempt-referral-for-steve-bannon">Nancy Pelosi officially certified</a> the contempt report and referred it to the Department of Justice this week. The department will now decide whether to prosecute the case.</p>
<p>Attorney General <a href="https://www.cnn.com/2021/10/21/politics/garland-house-judiciary-hearing-oversight/index.html">Merrick Garland said</a> that the department “will apply the facts and the law” when making this decision.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Protesters brandishing flags reading 'Trump' and 'Don't Tread on me'" src="https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/428908/original/file-20211027-25-8uatow.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The committee that issued the subpoena to Bannon is investigating the Jan. 6 Capitol riot by Trump supporters.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/protesters-supporting-u-s-president-donald-trump-break-into-news-photo/1294935650?adppopup=true">Win McNamee/Getty Images</a></span>
</figcaption>
</figure>
<h2>The catch</h2>
<p>While Bannon’s failure to comply with the congressional subpoena is striking, he needed to do so to challenge the subpoena. </p>
<p>To <a href="https://scholarship.law.cornell.edu/cjlpp/vol25/iss2/4/">legally contest</a> a congressional request for information, an individual first must refuse to comply and then, if held in criminal contempt, can provide a defense.</p>
<p>Bannon’s defense – and Trump’s instruction not to provide information to Congress – centers on the concept of executive privilege. Since President George Washington, <a href="https://theconversation.com/trump-ukraine-and-a-whistleblower-ever-since-1796-congress-has-struggled-to-keep-presidents-in-check-124146">executive officials have claimed</a> the ability to withhold certain information that is fundamental to the operation of government. These claims relate to the idea that confidentiality encourages candor among presidents and their advisers when making important governmental decisions and policies. </p>
<p>In a letter to Bannon and three others under congressional investigation, Trump’s lawyer <a href="https://time.com/6105290/steve-bannon-subpoean-trump-january-6-commission/">said they are protected</a> from compelled disclosure “by the executive and other privileges, including among others the presidential communications, deliberative process, and attorney-client privileges.”</p>
<p>Presidents and their advisers have always <a href="https://www.lawfareblog.com/executives-privilege-rethinking-presidents-power-withhold-information">interpreted executive privilege broadly</a>. However, President Trump and his advisers have taken an even <a href="https://theconversation.com/courts-have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-wade-in-128269">more expansive view</a> than previous administrations. </p>
<p>My own <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/psq.12714?casa_token=85PEfMDdpq0AAAAA:1bcmfrV-s4DNtPTj8AS5VCMkyTcmsiJ9i49Ro-pR7EIFo43xJhc6_VcSkbuz7iQ5tmkRmnjQwJTbBfU">research</a> suggests that Trump and his advisers have asserted this privilege in at least 84 different federal cases. In contrast, in Obama’s first term, only 37 federal cases involved executive privilege claims. The claims in both administrations were made in a range of cases, from Freedom of Information Act lawsuits to lawsuits over agency actions.</p>
<p>Courts have <a href="https://law.justia.com/cases/federal/appellate-courts/cadc/08-5357/08-5357-1142234-2011-03-24.html">recognized</a> that cases over congressional access to information inevitably force the judiciary to side with one branch over the other. Yet, <a href="https://casetext.com/case/oversight-v-holder">courts acknowledge</a> the need to arbitrate disputes resulting from congressional investigations, particularly when those investigations could implicate presidential misconduct or criminal activity. </p>
<p>At least <a href="https://archive.constitutionproject.org/wp-content/uploads/2009/07/WhenCongressComesCalling.pdf">14 presidential administrations</a> have been the subject of investigations that required sitting or former presidents and their advisers to produce evidence. Legal disputes over these investigations have rarely made it to court.</p>
<p>But Bannon has <a href="https://www.politico.com/news/2021/10/19/jan-6-commission-steve-bannon-criminal-contempt-516233">made it clear</a> that he will not cooperate with Congress until the judiciary steps in.</p>
<p>How the courts handle the matter will have implications for how Congress holds current and future presidential administrations accountable.</p>
<p>[<em><a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-important">Get The Conversation’s most important politics headlines, in our Politics Weekly newsletter</a>.</em>]</p><img src="https://counter.theconversation.com/content/170426/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer L. Selin has received funding and/or support for her research on Congress and the executive branch from the Center for Effective Lawmaking, Dirksen Congressional Center, Kinder Institute on Constitutional Democracy, and Levin Center at Wayne Law.</span></em></p>Donald Trump asked his former presidential aides not to testify before a congressional committee investigating the Jan. 6 Capitol insurrection – testing the limits of congressional oversight.Jennifer Selin, Kinder Institute Assistant Professor of Constitutional Democracy, University of Missouri-ColumbiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1698712021-10-22T12:38:57Z2021-10-22T12:38:57ZTrump wants the National Archives to keep his papers away from investigators – post-Watergate laws and executive orders may not let him<figure><img src="https://images.theconversation.com/files/427634/original/file-20211020-17-jemexo.jpeg?ixlib=rb-1.1.0&rect=16%2C8%2C5369%2C4005&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Nixon resigned after tapes he had fought making public incriminated him in the Watergate coverup.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/washington-dc-newspaper-headlines-being-read-by-tourists-in-news-photo/515451050?adppopup=true">Bettmann/Getty </a></span></figcaption></figure><p>The National Archives is the United States’ memory, a repository of artifacts that includes everything from half-forgotten correspondence to the paper trails that document the days of the country’s life. The National Archives contains such items as bureaucratic correspondence, patents and captured German records. <a href="https://prologue.blogs.archives.gov/2016/08/10/the-gems-of-record-group-242-foreign-records-seized/">It holds Eva Braun’s diary</a> and <a href="https://internsdc.com/hidden-treasures-in-the-national-archives/">photographs of child labor conditions at the turn of the 19th century</a>.</p>
<p>Most of the time, the National Archives goes on with its work with little attention. But right now it is at the center of <a href="https://www.axios.com/biden-jan-6-white-house-records-executive-privilege-e3a2c75d-5049-4943-b265-11dfa5226d6a.html">a political fight about the public’s access to the papers</a> of former President Donald Trump.</p>
<p>That battle is being fought by Trump against President Joe Biden and the House committee investigating the Jan. 6 insurrection. The legislators want to see Trump administration records that are housed in the National Archives, Biden has said the archives should provide them – <a href="https://s3.documentcloud.org/documents/21087682/10-18-21-trump-v-thompson-complaint.pdf">and Trump has sued</a> the committee and the archives to stop the papers from being divulged to Congress. </p>
<p>What materials should be kept, where they should be kept and, in the case of presidents, who owns and controls them have long been a thorny question for the nation. Historian <a href="https://www.archives.gov/files/about/history/sources/mccoy.pdf">John Franklin Jameson pointed out that from 1833 to 1915 the U.S. had 254 fires</a> in federal buildings – with important public records consumed by the flames. Fire, bugs, mold, water and vermin were all persistent threats that ate away at the country’s earliest materials. </p>
<p>Jameson, along with others, pushed for funding a National Archives in the early 20th century. The formal organization known today was <a href="https://www.archives.gov/global-pages/larger-image.html?i=/historical-docs/doc-content/images/nara-national-archives-act-l.jpg&c=/historical-docs/doc-content/images/nara-national-archives-act.caption.html">created by Congress in 1934</a>. From that time, “all archives or records belonging to the Government of the United States” were to be under “the charge and superintendence” of the national archivist. </p>
<p>Currently, <a href="https://www.archivesfoundation.org/about-the-archives/">the National Archives is home</a> to 12 billion sheets of paper, 40 million photographs, 5.3 billion electronic records, and untold miles of video and film. <a href="https://www.archives.gov/publications/general-info-leaflets/1-about-archives.html">Among those materials</a> are the Emancipation Proclamation of 1863, military and immigration records and even the canceled check for the purchase of Alaska. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/427613/original/file-20211020-16-q3kivh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="National Archives workers push a cart of Veterans Administration records into a vacuum chamber for fumigation in June 1936." src="https://images.theconversation.com/files/427613/original/file-20211020-16-q3kivh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/427613/original/file-20211020-16-q3kivh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=460&fit=crop&dpr=1 600w, https://images.theconversation.com/files/427613/original/file-20211020-16-q3kivh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=460&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/427613/original/file-20211020-16-q3kivh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=460&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/427613/original/file-20211020-16-q3kivh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=579&fit=crop&dpr=1 754w, https://images.theconversation.com/files/427613/original/file-20211020-16-q3kivh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=579&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/427613/original/file-20211020-16-q3kivh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=579&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Before the establishment of the archives, many records were poorly stored. Here archives workers push a cart of Veterans Administration records into a vacuum chamber for fumigation in June 1936.</span>
<span class="attribution"><a class="source" href="https://catalog.archives.gov/id/7822037">Historic Photograph File of National Archives Events and Personnel, 1935 - 1975</a></span>
</figcaption>
</figure>
<h2>People’s papers?</h2>
<p>At the center of the current conflict between Trump and the congressional committee is <a href="https://www.jstor.org/stable/4307432">the status of presidential papers: Are they public or private?</a></p>
<p>The archives have long dealt with this question. <a href="https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/george-washingtons-papers/">President George Washington took his papers home</a> with the intention of creating a library, but it never materialized. In fact, <a href="https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/george-washingtons-papers/">rats ate many of Washington’s records</a>. </p>
<p>Washington had established the idea that the president’s papers were his property, since he had written or created them. Many other presidential families who didn’t like the contents of their relation’s presidential records <a href="https://www.archives.gov/presidential-libraries/about/faqs.html">disposed of or burned them</a>, leaving only a slanted picture of the actual history. </p>
<p>The situation continued until the presidency of Franklin D. Roosevelt, who was the <a href="https://www.fdrlibrary.org/dedication">first to assert presidential papers should be preserved for future generations</a>. He considered presidents stewards, not owners, of their materials. The wealthy Roosevelt privately built a facility and then donated the papers and collections to the National Archives. </p>
<p>Roosevelt’s library sparked public awareness of these papers, and by the late 1940s the question about what the country should do with the president’s papers came to a head. Roosevelt’s successor, Harry Truman, was hesitant to make all his records fully public property, but he also was appalled to find out how many predecessors’ records had been intentionally destroyed. </p>
<p>“Such destruction should never again be permitted,” <a href="https://www.newyorker.com/magazine/2020/11/23/will-trump-burn-the-evidence">said Truman</a> in 1949. “The truth behind a president’s actions can be only found in his official papers, and every presidential paper is official.” </p>
<p><a href="https://www.archives.gov/presidential-libraries/laws/1955-act.html">The Presidential Libraries Act</a> was passed by Congress in 1955. It allowed <a href="https://www.archives.gov/presidential-libraries/about/faqs.html">private construction of locations to house presidential papers, but those libraries would be maintained</a> by the national government. The presidential documents were still considered the private property of their chief executive, though most donated them to their libraries. </p>
<p>In <a href="https://www.archives.gov/presidential-libraries/laws/1974-act.html">1974, the Presidential Recordings and Materials Preservation Act</a> was enacted to prevent the destruction of President Richard Nixon’s materials in the wake of the Watergate scandal. In <a href="https://www.archives.gov/presidential-libraries/laws/1978-act.html">1978, passage of the Presidential Records Act</a> settled the question of ownership over presidential records: They were the property of the American public. As soon as a president leaves office, all records move immediately to the custody of the national archivist. </p>
<p>The 1978 legislation stated that duplicate or truly nonrelevant records can be disposed of, but only after consultation with the archivist of the United States. <a href="https://www.archives.gov/press/press-releases/2015/nr15-23.html">In 2014, this act was updated to also include electronic records</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/427632/original/file-20211020-20-je02qv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The first page of the grand jury subpoena to President Nixon in the Watergate case." src="https://images.theconversation.com/files/427632/original/file-20211020-20-je02qv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/427632/original/file-20211020-20-je02qv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=474&fit=crop&dpr=1 600w, https://images.theconversation.com/files/427632/original/file-20211020-20-je02qv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=474&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/427632/original/file-20211020-20-je02qv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=474&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/427632/original/file-20211020-20-je02qv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=595&fit=crop&dpr=1 754w, https://images.theconversation.com/files/427632/original/file-20211020-20-je02qv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=595&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/427632/original/file-20211020-20-je02qv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=595&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Nixon fought the subpoena for his Oval Office tapes, citing executive privilege. He lost in the Supreme Court.</span>
<span class="attribution"><a class="source" href="https://www.docsteach.org/documents/document/grand-jury-subpoena-dues-tecum-to-richard-m-nixon-to-testify-and-bring-documents-or-objects-listed-with-attached-schedule-of-documents-or-objects-to-be-produced-by-or-on-behalf-of-richard-m-nixon">Records of the Watergate Special Prosecution Force0; National Archives at College Park</a></span>
</figcaption>
</figure>
<h2>Shielding embarrassing information</h2>
<p>Much of my academic <a href="https://liberalarts.utexas.edu/government/faculty/sbo69">career as a political scientist</a> rests upon the availability of these documents. My dissertation and <a href="https://www.palgrave.com/us/book/9783319781358">first book</a> both look at locations of presidential speeches. If presidents can speak anywhere, what can we learn about their priorities from these choices? Public documents made my research possible. Without them, no comprehensive accounting of presidential speeches would exist.</p>
<p>Presidential records have occasionally stirred controversy. Many presidents have sought to shield possibly embarrassing or controversial information from public view. </p>
<p>During Watergate, investigators sought potentially incriminating materials from Nixon. <a href="https://constitutioncenter.org/blog/anniversary-of-united-states-v-nixon">He claimed he had an absolute executive privilege</a> and <a href="https://www.docsteach.org/documents/document/executive-privilege-subpoenaed-materials">could withhold any communication</a> from the legislative and judicial branches. </p>
<p>Executive privilege allows current presidents to provide notice to the National Archives to withhold any materials unless told to do so directly by them or court order.</p>
<p>The Supreme Court sharply disagreed with Nixon’s sweeping executive privilege claim <a href="https://www.oyez.org/cases/1973/73-1766">in a unanimous opinion in 1974, stating</a>, “Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” Nixon’s records had to be released. </p>
<p>In 2001, President George W. Bush, building on <a href="https://www.archives.gov/federal-register/codification/executive-order/12667.html">efforts of President Ronald Reagan</a>, sought to create a formal process to <a href="https://www.archives.gov/about/laws/appendix/13233.html">manage claims of executive privilege</a>. Bush’s change was controversial because it allowed sitting and former presidents the ability to almost indefinitely shield information and also allowed a former president to appoint a representative to assert on their behalf even after their death. </p>
<p>Barack Obama revoked Bush’s order <a href="https://www.federalregister.gov/documents/2009/01/26/E9-1712/presidential-records">the day after he was inaugurated in 2009</a>. </p>
<p>Obama’s 2009 order guides current policies. Any claims of executive privilege involve consultations with the archivist, attorney general and president’s counsel. Other executive agencies may also be involved if the information affects them. </p>
<p>[<em>Over 115,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p>
<p>How the policy applies to former presidents is trickier. Those who want executive privilege to prevent disclosure of documents – as Trump does – must rely upon the current administration for the final decision. They do not have the ability as former presidents to assert blanket executive privilege. </p>
<p>For other presidents, such as George W. Bush and Barack Obama, executive privilege was implemented <a href="https://www.justsecurity.org/78413/modern-history-of-disclosure-of-presidential-records-on-the-boundaries-of-executive-privilege/">as a tool to stall investigations</a>. Trump’s attempt to use it may be a delaying tactic, which may benefit him in the short term. But it could also cement the limitations the Supreme Court put on a president’s power to invoke executive privilege. If, in considering the Trump case, the court reaffirms the Nixon ruling, that would be a reaffirmation that the president’s power to keep documents secret was not absolute.</p><img src="https://counter.theconversation.com/content/169871/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shannon Bow O'Brien does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Donald Trump’s lawsuit to stop the release to Congress of potentially embarrassing or incriminating documents puts the National Archives in the middle of an old legal conflict.Shannon Bow O'Brien, Associate Professor of Instruction, The University of Texas at Austin College of Liberal ArtsLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1699962021-10-14T20:12:04Z2021-10-14T20:12:04ZSteve Bannon faces criminal charges over Jan. 6 panel snub, setting up a showdown over executive privilege<figure><img src="https://images.theconversation.com/files/426556/original/file-20211014-19-1wsngzq.jpg?ixlib=rb-1.1.0&rect=0%2C6%2C4471%2C3003&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Defiant or following Trump's direction?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-chief-strategist-for-us-president-donald-trump-news-photo/1228133349?adppopup=true">John Lamparski/NurPhoto via Getty Images</a></span></figcaption></figure><p>The House committee investigating the Jan. 6 attack on the U.S. Capitol is tasked with providing as full an account as possible of the attempted insurrection. But there is a problem: Not everyone is cooperating.</p>
<p>As of Oct. 14, 2021, Steve Bannon, a one-time aide to former President Donald Trump, <a href="https://news.yahoo.com/lawyer-aided-trump-subpoenaed-jan-045911533.html">has stated that he will not comply with a committee subpoena</a> compelling him to give testimony. Bannon’s lawyers have said their client is not acting out of defiance; rather, he is <a href="https://www.newsweek.com/steve-bannon-subpoena-capitol-attack-trump-1638839">following the direction of Trump</a>, who, citing executive privilege, has told Bannon not to produce testimony or documents. </p>
<p>Either way, Bannon now faces the prospect of <a href="https://www.cnn.com/2021/10/14/politics/steve-bannon-deposition-deadline/index.html">criminal contempt charges</a>.</p>
<p>Bannon isn’t alone in being subpoenaed by the Jan. 6 committee. Trump’s former chief of staff Mark Meadows, former deputy chief of staff Dan Scavino, former chief of staff to the acting United States Secretary of Defense Kash Patel and former Trump Justice Department official Jeffrey Clark <a href="https://www.npr.org/2021/10/13/1045774976/jan-6-panel-issues-subpoena-for-trump-ally-ex-doj-official-jeffrey-clark">have also been served</a>. Meadows, Scavino, Patel and Clark – unlike Bannon – have not said whether they will comply, although their actions <a href="https://www.washingtonpost.com/politics/2021/10/12/we-still-dont-know-if-mark-meadows-kash-patel-will-comply-with-jan-6-subpoenas/">suggest a degree of foot-dragging</a>. </p>
<p>The responses to the subpoenas serve to delay and frustrate the committee, which now finds itself caught up in a legal fight that may deny the committee information it seeks.</p>
<p>It also serves to highlight that the committee has an array of tools at its disposal to gather evidence from reluctant witnesses. But there remains lingering uncertainty over how these powers of the committee rub up against claims of presidential executive privilege.</p>
<h2>Investigating the ‘darkest days’</h2>
<p>Congress handed the committee a fairly wide charge to gather evidence. On June 30, 2021, lawmakers passed <a href="https://www.congress.gov/bill/117th-congress/house-resolution/503/text?q=%7B%22search%22%3A%5B%22H.Res.+503%22%5D%7D&r=1&s=2">House Resolution 503</a>, charging the committee with investigating the activities of law enforcement, intelligence agencies and the armed forces relating to that day as well as uncovering the factors contributing to the attack, including technology, social media and malign foreign influences. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/413999/original/file-20210730-23-nigrca.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="former President Trump in front of flags and on a stage at a rally, with people crowded below him" src="https://images.theconversation.com/files/413999/original/file-20210730-23-nigrca.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/413999/original/file-20210730-23-nigrca.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/413999/original/file-20210730-23-nigrca.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/413999/original/file-20210730-23-nigrca.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/413999/original/file-20210730-23-nigrca.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/413999/original/file-20210730-23-nigrca.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/413999/original/file-20210730-23-nigrca.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Then-President Donald Trump at the ‘Stop the Steal’ rally on Jan. 6, 2021, that preceded the Capitol insurrection.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-greets-the-crowd-at-the-stop-the-news-photo/1294918265?adppopup=true">Tasos Katopodis/Getty Images</a></span>
</figcaption>
</figure>
<p>Ultimately, the committee aims to issue a report with detailed findings and suggestions for corrective measures.</p>
<p>The select committee has already used one of its main tools for investigating the attack on the Capitol: holding public hearings and inviting testimony from key players in the attack. </p>
<p><a href="https://www.npr.org/2021/07/27/1019736664/jan-6-insurrection-hearing-police-nancy-pelosi-committee">Four police officers who had defended the Capitol</a> during the attack gave testimony during the committee’s first hearing.</p>
<p>The committee is now looking to hear testimony from former White House staffers, rally organizers and members of Congress. It can also ask for and receive information from various government agencies and private organizations.</p>
<p>The panel has used its power to issue subpoenas to obtain information it deems vital to the investigation from former Trump administration officials, such as Meadows, Scavino and Patel, as well as <a href="https://www.cnbc.com/2021/09/29/house-committee-investigating-jan-6-capitol-riot-subpoenas-11-individuals-including-mick-mulvaneys-niece.html">organizations that planned</a> the Jan. 6 rally.</p>
<h2>Compelling requests</h2>
<p>A subpoena is a legal order requiring a person to appear and testify or produce documents.</p>
<p><a href="https://www.congress.gov/bill/117th-congress/house-resolution/503/text?q=%7B%22search%22%3A%5B%22H.Res.+503%22%5D%7D&r=1&s=2">House Resolution 503</a> expressly authorizes the committee to issue and compel subpoenas for documents and testimony.</p>
<p>Historically, congressional committees <a href="https://theconversation.com/courts-have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-wade-in-128269">have preferred to cooperate</a> with the other branches of government to obtain information. But if a cooperative approach does not produce the information the committee needs, it can subpoena information and testimony from members of Congress, former White House staffers, social media companies and even the former president. </p>
<p>While in office, President Trump repeatedly <a href="https://theconversation.com/courts-have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-wade-in-128269">claimed executive privilege</a>, which allows a president to withhold certain information from Congress, the courts or the public, in response to congressional subpoenas served on officials in his administration.</p>
<p>Now Trump has <a href="https://www.washingtonpost.com/politics/jan-6-committee-clark-bannon/2021/10/13/2468292e-2c2a-11ec-8ef6-3ca8fe943a92_story.html">advised his former aides</a> not to testify before or provide documents to the committee. He claims that such cooperation would violate executive privilege. He has also <a href="https://www.washingtonpost.com/politics/jan-6-committee-clark-bannon/2021/10/13/2468292e-2c2a-11ec-8ef6-3ca8fe943a92_story.html">asserted executive privilege</a> to prevent the release of records pertaining to his administration from the National Archives, even though the Biden administration has said that it does not object to the release of the information.</p>
<p>The law is less than clear about whether a former president can successfully claim executive privilege in the face of a congressional subpoena. The executive and legislative branches have <a href="https://theconversation.com/courts-have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-wade-in-128269">historically preferred to avoid such confrontations</a> and to negotiate the sharing of information. </p>
<p>As a result, federal courts have yet to determine the extent of the executive privilege retained by former presidents and when they can assert it. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/414144/original/file-20210802-16-zjv8fh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Four policemen sitting at a table in a Congressional hearing." src="https://images.theconversation.com/files/414144/original/file-20210802-16-zjv8fh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/414144/original/file-20210802-16-zjv8fh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/414144/original/file-20210802-16-zjv8fh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/414144/original/file-20210802-16-zjv8fh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/414144/original/file-20210802-16-zjv8fh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/414144/original/file-20210802-16-zjv8fh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/414144/original/file-20210802-16-zjv8fh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Four policemen who fought rioters during the Jan. 6 Capitol attack testified on July 27, 2021, to the House select committee investigating the attack.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/capitol-police-sgt-aquilino-gonell-washington-metropolitan-news-photo/1234241743?adppopup=true">Andrew Harnik-Pool/Getty Images</a></span>
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</figure>
<p>Trump has extensively claimed executive privilege to cover not only matters of whether he himself can be forced to give evidence but also whether his former aides have to. In Bannon’s case it is even more curious as he <a href="https://www.washingtonpost.com/politics/2021/10/13/jan-6-subpoenas/">didn’t work in the White House</a> during the period in which the Jan. 6 committee is investigating.</p>
<h2>Little support for claim</h2>
<p>The resistance to the Jan. 6 subpoenas could lead the courts to revisit issues over executive privilege that have not been considered for 40 years.</p>
<p>In a <a href="https://supreme.justia.com/cases/federal/us/433/425/">1977 decision</a>, the Supreme Court held that former President Richard Nixon could claim executive privilege in challenging a federal law known as the Presidential Recordings and Materials Preservation Act. That law ensured government agencies and, ultimately, the public <a href="https://dictionary.archivists.org/entry/presidential-recordings-and-materials-preservation.html">could have access to certain documents and tape recordings</a> made during Nixon’s presidency. Although the court allowed Nixon to make the executive privilege claim, it ultimately ruled against him and upheld the law, noting that the lack of support for Nixon’s claim by other presidents weakened his arguments for executive privilege. </p>
<p>Trump would not have a stronger claim. President Biden has already signaled that he will not support Trump’s assertion of executive privilege in an attempt to prevent disclosure of testimony or documents relating to the Jan. 6 attack. In fact, Biden’s rejection of Trump’s request to block the release of around 50 documents to keep them from being entered into evidence led Trump to <a href="https://www.washingtonpost.com/politics/bannon-refuses-jan6-committee-subpoena/2021/10/08/337c23d6-284f-11ec-9de8-156fed3e81bf_story.html">formally claim that executive privilege</a> should prevent their disclosure.</p>
<p>As to Trump’s former aides, the <a href="https://www.justsecurity.org/77610/unpacking-the-doj-letters-no-executive-privilege-for-trump-era-witnesses-on-2020-election-machinations/">Department of Justice</a> has already informed Trump administration witnesses that it does not support any assertions of executive privilege on matters relating to efforts to overturn the 2020 presidential election. </p>
<h2>Legal battles ahead?</h2>
<p>In light of the Nixon case and the positions taken by the Biden administration, former Trump officials may face an uphill battle in arguing for executive privilege. </p>
<p>Meadows and Patel are in <a href="https://www.npr.org/2021/10/13/1045774976/jan-6-panel-issues-subpoena-for-trump-ally-ex-doj-official-jeffrey-clark">negotiations with the panel</a> and may be trying to avoid further confrontation over the issue.</p>
<p>In the case of Bannon, the Jan. 6 committee’s chair has said <a href="https://www.nytimes.com/2021/10/14/us/politics/jan-6-capitol-riot-bannon.html">the panel will pursue criminal charges</a>, with a vote expected to take place the week of Oct. 18. </p>
<p>This action shows a desire by the committee to flex its considerable power in requesting information, even if that means engaging in a protracted legal battle with the former administration.</p>
<p>And if Bannon and other former Trump aides continue to resist, the courts may have to step in.</p>
<p><em>Portions of this article originally appeared in a <a href="https://theconversation.com/house-committee-investigating-capitol-insurrection-has-a-lot-of-power-but-its-unclear-it-can-force-trump-to-testify-165294">previous article</a> published on Aug. 3, 2021.</em></p><img src="https://counter.theconversation.com/content/169996/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kirsten Matoy Carlson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Former aides to Donald Trump have refused and delayed compliance with a subpoena issued by the Jan. 6 committee. It has set up a messy legal fight over executive privilege.Kirsten Matoy Carlson, Associate Professor of Law and Adjunct Associate Professor of Political Science, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1381542020-05-08T14:57:03Z2020-05-08T14:57:03ZHistoric power struggle between Trump and Congress reviewed by Supreme Court<figure><img src="https://images.theconversation.com/files/333498/original/file-20200507-49550-1emsyep.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Justices of the Supreme Court will hear a crucial case on the limits of presidential power. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-us-supreme-court-is-seen-in-washington-dc-on-may-4-news-photo/1211716552?adppopup=true">Getty/Saul Loeb/AFP</a></span></figcaption></figure><p>The Supreme Court heard arguments on May 12 in two cases concerning congressional demands, known as subpoenas, for materials that President Donald Trump claims are intrusions into his private affairs and are not legitimate uses of congressional power. </p>
<p>Another case argued before the court at the same time involves the <a href="https://www.nytimes.com/2019/09/16/nyregion/trump-tax-returns-cy-vance.html">Manhattan district attorney’s subpoena of records from Trump’s businesses</a> as part of an investigation of state tax law violations. Trump is fighting that one, too.</p>
<p>How the court will rule this summer on these three crucial cases about the limits of executive power was not clear from the questioning by the justices, who did not appear to line up along obvious ideological grounds on the issue.</p>
<p>Not since the “Red Scare” subpoena cases from the 1950s-1960s, where Congress conducted hearings that many called political witch hunts against alleged communists, and the Watergate era in the 1970s, when President Nixon claimed through his attorney that he was “as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment,” has the Supreme Court taken up such far-reaching questions about the ability of Congress to oversee and check the president’s power. </p>
<p>Either Congress will be able to maintain its historic role of conducting oversight of the president and the executive branch, the president will be able to keep information secret no matter what – or the court will punt and the two branches of government will remain locked in the conflict.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Trump is fighting congressional demands for financial records.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-speaks-as-he-departs-the-white-house-news-photo/1211871661?adppopup=true">Getty/Jim Watson/AFP</a></span>
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</figure>
<h2>From ethics to emoluments</h2>
<p>Congress is investigating whether <a href="https://www.politico.com/news/2020/01/20/trump-businesses-empire-tied-presidency-100496">Trump used his power as president to profit his business</a>, whether he <a href="https://www.law.cornell.edu/uscode/text/5a/compiledact-95-521">accurately reported his finances</a> as all government employees are required to do and whether he accepted gifts from foreign governments without permission from Congress, which is <a href="https://www.britannica.com/story/what-is-the-emoluments-clause">banned by the Constitution</a>. This ban reflected the framers’ concern that no official be subject to foreign intrigue or influence of any kind – a common practice at the time among foreign sovereigns. </p>
<p>The first case, <a href="https://www.theusconstitution.org/litigation/trump-v-mazars-usa-llp/">Trump v. Mazars</a>, relates to those investigations. Trump is trying to stop his accountants and the bank he deals with from providing information subpoenaed by two House committees – oversight and intelligence.</p>
<p><a href="https://law.justia.com/cases/federal/appellate-courts/cadc/19-5142/19-5142-2019-10-11.html">Trump objected to these subpoenas</a> on the grounds that they lack a legislative purpose and that their true aim is to obtain personal information for political advantage. </p>
<p>The Court of Appeals rejected this argument. It found that the records the congressional committees wanted were relevant to Congress’ legislative duties, and thus the subpoenas were legitimate.</p>
<p>All subpoenas from, and investigations by, Congress <a href="https://theconversation.com/oversight-committee-session-with-michael-cohen-looks-like-an-illegitimate-show-hearing-112253">must have a legislative purpose</a>. By law, Congress has the authority to pursue any “<a href="https://theconversation.com/oversight-committee-session-with-michael-cohen-looks-like-an-illegitimate-show-hearing-112253">subject on which legislation can be had</a>” as well as inquiries into fraud, waste and abuse in government programs. The broad standard for upholding that investigative power is affirmed in the Supreme Court’s ruling in <a href="https://www.oyez.org/cases/1900-1940/273us135">McGrain v. Daugherty</a> in 1927, which established that “the power of inquiry – with process to enforce it – is an essential and appropriate” aspect of how Congress carries out its legislative function.</p>
<h2>Congress acted appropriately</h2>
<p>The second case involves House committee subpoenas for Trump companies’ bank records from Deutsche Bank and Capital One. As with the Mazars case, Trump has tried to stop the banks from handing over the documents.</p>
<p>Those subpoenas are related to reviews by the House Financial Services Committee and the Intelligence Committee of the movement of illicit funds through the global financial system and money laundering. Deutsche Bank, <a href="https://www.nytimes.com/2020/02/04/magazine/deutsche-bank-trump.html">which has loaned large amounts of money to Trump businesses</a>, has already <a href="https://www.reuters.com/article/us-deutsche-mirrortrade-probe/deutsche-bank-fined-for-10-billion-sham-russian-trades-idUSKBN15F1GT">been fined US$10 billion</a> for a money-laundering scheme unrelated to Trump. </p>
<p><a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/20C16C3C5721030C85258490004DE33C/$file/19-5142-1810450.pdf">The Court of Appeals rejected Trump’s argument</a> and said Congress was legitimately entitled to pursue and get the records. </p>
<p>They wrote that the committees’ focus on illegal money laundering was not on any purported misconduct by Trump but instead on whether such activity occurred in the banking industry, the adequacy of banking regulation and the need for legislation to fix any problems – all legitimate oversight goals.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=427&fit=crop&dpr=1 600w, https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=427&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=427&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=536&fit=crop&dpr=1 754w, https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=536&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=536&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">President Bill Clinton fought against being deposed in the Paula Jones sexual discrimination suit; he lost and had to comply.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/this-10-december-image-taken-from-c-span-television-shows-news-photo/51634512?adppopup=true">Getty/AFP</a></span>
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<h2>Nixon, Clinton precedents</h2>
<p>Neither of these cases involves the president <a href="https://www.law.cornell.edu/wex/executive_privilege">claiming executive privilege</a> – the doctrine that keeps confidential many of the communications between the president and his closest advisers. Nor do the cases involve any challenge to the performance of his official duties. </p>
<p>Both concern only his private business activities before he assumed office. The records from before he was president are relevant because he refused to divest from his businesses, raising the concern of whether his official actions once in office conflict with, or appear to conflict with, his existing business interests.</p>
<p>Two previous Supreme Court cases will in all likelihood weigh significantly in its decisions in these cases. </p>
<p>One is <a href="https://www.oyez.org/cases/1973/73-1766">United States v. Nixon</a>, which took place during the Watergate scandal, when <a href="https://www.nytimes.com/1974/04/17/archives/jaworski-seeks-court-subpoena-for-nixon-tapes-he-wants-64-of.html">Special Prosecutor Leon Jaworski subpoenaed the tape recordings</a> of conversations between the president and four of his advisers who had been indicted. President Richard Nixon tried to claim executive privilege, saying the recordings of conversations between him and his advisers were confidential and should not be given to the special prosecutor. </p>
<p>The court ruled unanimously that the need for the tapes in the aides’ upcoming trial outweighed the president’s claim of confidentiality. And although no case applying the Nixon case precedent to a congressional subpoena has reached the Supreme Court, the <a href="https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2018/07/24/daily-202-why-u-s-v-nixon-matters-now-more-than-ever/5b5678331b326b1e646954eb/">implication drawn from the case</a> is that if his privilege can be overcome by a subpoena for conversations with his closest aides, business records generated before a president came to office can legitimately be subpoenaed by Congress.</p>
<p>“The ruling rejected what it called the notion of ‘absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances,’ which has an obvious impact on any president under serious suspicion, such as President Trump,” <a href="https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2018/07/24/daily-202-why-u-s-v-nixon-matters-now-more-than-ever/5b5678331b326b1e646954eb/">wrote presidential historian Michael Beschloss</a> to a Washington Post reporter in 2018.</p>
<p>The other case relevant to these decisions is <a href="https://www.oyez.org/cases/1996/95-1853">Clinton v. Jones</a>. The case stemmed from a sexual harassment suit against Clinton concerning his conduct before his presidency. Clinton had refused to give a deposition in the case, insisting that it would be a distraction from his duties as president and an invitation to litigants to harass any president while in office with lawsuits.</p>
<p>The <a href="https://www.oyez.org/cases/1996/95-1853">case description on the Supreme Court website</a> asks, “Is a serving President … entitled to absolute immunity from civil litigation arising out of events which transpired prior to his taking office?” </p>
<p>The court’s answer: No.</p>
<h2>Will the court rule?</h2>
<p>These two decisions established precedents that seem to portend defeat for President Trump in the upcoming hearing. </p>
<p>Were the Supreme Court to validate Trump’s position in either case, or decline to decide the cases, it would stymie Congress and force it to seek enforcement by arresting those who refused to honor their subpoenas. That’s the way the Senate enforced its subpoena in the McGrain case and how Congress frequently operated in the 19th century.</p>
<p>The court has asked for additional briefing from the parties on whether the cases are not suitable for judicial decision as “political questions.” That legal doctrine says <a href="https://www.law.cornell.edu/wex/political_question_doctrine">some cases are so politically freighted</a> that the federal court system should not consider them – they should be resolved by the political players.</p>
<p>This has fueled speculation that the court may decide not to referee the dispute using the political doctrine as it has done in other cases involving disputes between Congress and the president over war powers or the disposition of the Panama Canal. </p>
<p>None of this indicates how the court will decide in the cases, only that whatever it decides will be momentous in the annals of congressional disputes with the president.</p>
<p><em>Editor’s note: This is an updated version of an article originally published on May 8, 2020.</em></p>
<p>[<em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=youresmart">You can read us daily by subscribing to our newsletter</a>.]</p><img src="https://counter.theconversation.com/content/138154/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stanley M. Brand does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Three cases just argued in the Supreme Court have the potential to redefine the power of Congress to hold the president accountable.Stanley M. Brand, Distinguished Fellow in Law and Government, Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1294852020-01-27T15:26:28Z2020-01-27T15:26:28ZAfter the trial’s over, President Trump’s impeachment battles could determine who holds real power in the US government<figure><img src="https://images.theconversation.com/files/311873/original/file-20200124-81352-ohh81e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Cases related to the Trump impeachment may end up at the Supreme Court.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-us-supreme-court-is-pictured-january-9-2017-in-news-photo/631355218?adppopup=true">ZACH GIBSON/AFP via Getty Images</a></span></figcaption></figure><p>The legal and constitutional battles sparked by President Trump’s behavior could affect how the U.S. government works for generations, long after the impeachment trial is over. </p>
<p>After the last Senate staffer turns out the lights, major questions remain to be decided outside of the Capitol about the limits of presidential power, the willingness of courts to decide political questions and the ability of Congress to exercise effective oversight and hold a president accountable. </p>
<p>Here are three of those questions.</p>
<h2>What are the limits of presidential power?</h2>
<p>First, the aggressive exercise of executive power by Trump has put this power under court scrutiny. </p>
<p>Trump’s vow to “fight all the subpoenas” breaks from the traditional process – negotiation and accommodation – that previous presidents have used to resolve disputes between branches of the government. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/311874/original/file-20200124-81341-5zbfgz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/311874/original/file-20200124-81341-5zbfgz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/311874/original/file-20200124-81341-5zbfgz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/311874/original/file-20200124-81341-5zbfgz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/311874/original/file-20200124-81341-5zbfgz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/311874/original/file-20200124-81341-5zbfgz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/311874/original/file-20200124-81341-5zbfgz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/311874/original/file-20200124-81341-5zbfgz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Trump in the Roosevelt Room of the White House on Jan. 9, 2020.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-looks-on-during-an-event-to-unveil-news-photo/1192749953?adppopup=true">Drew Angerer/Getty Images</a></span>
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<p>As a result, several cases are currently pending, including a legal challenge brought by the House Judiciary Committee <a href="https://thehill.com/homenews/house/476651-house-lawyers-press-court-to-enforce-subpoena-against-trump-aide">to compel the testimony of Don McGahn</a>, Trump’s former White House counsel. The House had sought McGahn’s testimony <a href="https://www.usatoday.com/story/news/politics/2020/01/03/house-appeals-court-hearing-compel-don-mcgahn-testimony-trump-impeachment/2740779001/">about Trump’s alleged obstruction of justice</a> in the investigation of special counsel Robert Mueller into Russian election interference. </p>
<p>McGahn challenged the subpoena issued by the Judiciary Committee on the <a href="https://www.lawfareblog.com/executive-privilege-and-compelled-testimony-presidential-advisers-don-mcgahns-dilemma">grounds of absolute immunity</a>, arguing that he – a close aide to the president, and a member of the co-equal executive branch – need not appear before Congress to answer questions at all. </p>
<p>U.S. District Judge <a href="https://www.politico.com/f/?id=0000016e-a4c4-d442-a5ef-fee4e04c0000">Ketanji Brown Jackson rejected this argument</a>, saying that while McGahn could possibly assert executive privilege about individual questions, he could not refuse to appear altogether. </p>
<p>Executive privilege is not specified in the Constitution. But the Supreme Court has <a href="https://fas.org/sgp/crs/secrecy/R42670.pdf">recognized that a president may shield from disclosure</a> certain sensitive information and communications to encourage candid advice from aides and to protect national security and other sensitive information. </p>
<p>“However busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires,” Judge Jackson wrote.</p>
<p>The case is now on appeal, and during oral argument in early January, the committee’s lawyer said that <a href="https://thehill.com/homenews/house/476651-house-lawyers-press-court-to-enforce-subpoena-against-trump-aide">additional impeachment articles could be filed</a> based on McGahn’s testimony. </p>
<p><a href="https://www.oyez.org/cases/1973/73-1766">In 1974, in United States v. Nixon</a>, however, the court stated that the privilege is not absolute, and must yield in some circumstances, such as a criminal investigation. Absolute immunity, which courts have not recognized, goes even further than executive privilege, permitting an aide to refuse to appear altogether.</p>
<p>Regardless of the outcome of the case, a court decision in the McGahn case will provide clarity that will weaken or strengthen the negotiating position of future presidents. </p>
<h2>Should courts step into political conflicts?</h2>
<p>Some of the cases still pending could determine how much power courts have in impeachment matters. </p>
<p><a href="https://theconversation.com/courts-have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-wade-in-128269">Under what is known as the “political question doctrine,” courts typically avoid what are known as “political questions”</a> that involve branches of government in conflict. They have dismissed most cases that present such questions, deferring to the other branches to resolve them. In the more than 200 years between 1789 and 2017, when Trump took office, <a href="https://theconversation.com/courts-have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-wade-in-128269">courts heard only five cases</a> for presidential claims of executive privilege in response to a congressional subpoena.</p>
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Read more:
<a href="https://theconversation.com/courts-have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-wade-in-128269">Courts have avoided refereeing between Congress and the president, but Trump may force them to wade in</a>
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<p>In the 1993 case of <a href="https://www.oyez.org/cases/1992/91-740">Nixon v. United States</a> (no, not that Nixon, U.S. District Judge Walter Nixon), the Supreme Court held that a federal judge could not appeal to a court seeking to overturn his conviction at a Senate impeachment trial. The Constitution, the court ruled, gives the Senate the sole power to try all impeachments. </p>
<p>Concurring opinions in the Nixon case, however, left open the possibility of an appeal to courts for an impeachment trial that was conducted “arbitrarily,” that is, lacking procedural fairness.</p>
<p>Trump’s personal lawyer, Rudolph Giuliani, suggested at one time that Trump <a href="https://www.thedailybeast.com/rudy-giuliani-chief-justice-can-dismiss-trumps-impeachment">file a court challenge to dismiss</a> the articles of impeachment. </p>
<p>While that seems unlikely in light of the Nixon case, the political question doctrine is likely to figure in other pending cases, such the effort by Congress to seek grand jury material from Mueller’s investigation. </p>
<p>During oral argument earlier this month in the case over grand jury material pending before the court of appeals, one of the judges expressed reluctance to decide the case because it involves a political question.</p>
<p>As the courts decide the cases involving McGahn’s testimony, the Mueller grand jury material, and any challenge arising from Trump’s impeachment trial, the contours of the political question doctrine will become more defined.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/311877/original/file-20200124-81362-1ym30r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/311877/original/file-20200124-81362-1ym30r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/311877/original/file-20200124-81362-1ym30r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=425&fit=crop&dpr=1 600w, https://images.theconversation.com/files/311877/original/file-20200124-81362-1ym30r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=425&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/311877/original/file-20200124-81362-1ym30r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=425&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/311877/original/file-20200124-81362-1ym30r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=535&fit=crop&dpr=1 754w, https://images.theconversation.com/files/311877/original/file-20200124-81362-1ym30r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=535&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/311877/original/file-20200124-81362-1ym30r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=535&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Will a dispute about impeachment trial testimony by former presidential aide John Bolton, pictured here, end up before Chief Justice John Roberts?</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-national-security-advisor-john-bolton-speaks-at-news-photo/1178121134?adppopup=true">Win McNamee/Getty Images</a></span>
</figcaption>
</figure>
<h2>Will the executive, legislative and judicial branches collide?</h2>
<p>In the impeachment’s aftermath, the extent of Congress’ ability to serve as a valid check on presidential power will become more clear. </p>
<p>The framers of the Constitution envisioned <a href="https://www.loc.gov/law/help/parliamentary-oversight/unitedstates.php">a Congress that would provide oversight over a president</a>. They did not count on members of Congress having more loyalty to their party than to their institution. </p>
<p>If the Senate were to acquit the president in the face of additional incriminating evidence, the institution’s ability to serve as a credible check on future presidents could be damaged. </p>
<p>The impeachment trial itself could cause all three branches to collide. Former national security adviser <a href="https://thehill.com/homenews/administration/476938-bolton-says-he-would-testify-in-senate-impeachment-trial-if">John Bolton has publicly stated</a> that he would testify if subpoenaed by the Senate. Trump has said he would <a href="https://www.reuters.com/article/us-usa-trump-impeachment-bolton-analysis/trump-will-have-hard-time-blocking-potential-bolton-trial-testimony-idUSKBN1ZM1PA">he would invoke executive privilege to block</a> Bolton’s testimony. </p>
<p>If the Senate wanted to compel the testimony, the presiding Chief Justice John Roberts would decide the standoff between the president and the Senate. If he were to rule in favor of the Senate and order Bolton to testify, could President Trump appeal that decision to the Supreme Court? Would the Court be willing to decide such a political question about impeachment? Would the Senate arrest and jail a witness for refusing to testify? </p>
<p>There are no rules for what happens then. </p>
<p>Throughout his presidency, Trump has been a disrupter of normal procedures. It appears that he will continue that trend even after impeachment. </p>
<p>[ <em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/129485/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Barbara L. McQuade does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>President Trump’s likely to be acquitted by the Senate in his impeachment trial. But the impeachment’s effects won’t end until lawsuits are resolved.Barbara L. McQuade, Professor from Practice, University of MichiganLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1293132020-01-08T12:17:18Z2020-01-08T12:17:18ZCongressional Republicans abandon constitutional heritage and Watergate precedents in defense of Trump<figure><img src="https://images.theconversation.com/files/308884/original/file-20200107-123411-1datbix.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Republican lawmakers are seen as Speaker of the House Nancy Pelosi (D-Calif.) oversees a vote on the second article of impeachment against President Donald Trump in the House of Representatives, Dec. 18, 2019.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/republican-lawmakers-are-seen-as-speaker-of-the-house-nancy-news-photo/1189645530?adppopup=true">Matt McClain/The Washington Post via Getty Images</a></span></figcaption></figure><p>Once, not so long ago, congressional Republicans were impeachment’s constitutional stalwarts. </p>
<p>They stood up for the House of Representatives’ “<a href="https://www.archives.gov/founding-docs/constitution-transcript">sole power of impeachment</a>,” a power granted in the Constitution, including the right to subpoena witnesses and evidence. Even when the president under investigation was a Republican. Even when the Republican political base threatened to turn against them. </p>
<p>But that was when the president was Richard Nixon, not Donald Trump.</p>
<h2>Impeachment: 1974 vs. today</h2>
<p>I wrote a <a href="https://www.upress.virginia.edu/title/4886">book on the origins of Watergate</a>, so I get asked a lot how Trump’s impeachment inquiry compares with Nixon’s.</p>
<p>Much remains the same, especially the partisan attacks. In 1974, as today, Republicans complained that the impeachment inquiry was too <a href="https://twitter.com/FatalPolitics/status/1207079291889971200">secret</a>, too <a href="https://twitter.com/FatalPolitics/status/1207053144389087232">leaky</a> and a violation of presidential <a href="https://www.nytimes.com/1974/07/16/archives/a-secondary-defense-of-nixon-ziegler-presents-thesis.html">rights</a>. Both Team Nixon and Team Trump called their respective inquiries a “<a href="https://twitter.com/retronewsnow/status/975178659270144001">witch hunt</a>,” a “<a href="https://twitter.com/FatalPolitics/status/1207371750385704960">lynch mob</a>” and a “<a href="https://www.nytimes.com/1974/07/20/archives/ziegler-condemns-a-kangaroo-court.html">kangaroo court</a>.” </p>
<p>There is one vital difference between then and now. </p>
<p>In 1974, when the <a href="https://www.nytimes.com/1974/06/11/archives/president-defies-house-subpoena-for-more-tapes-letter-to-rodino.html">president defied some impeachment subpoenas</a>, many congressional Republicans said that that was, all by itself, an impeachable offense. </p>
<p>Yet in 2019, <a href="https://www.nytimes.com/2019/12/18/us/politics/trump-impeached.html">not a single House Republican voted</a> for the second article of impeachment charging President Trump, who defied <em>all</em> impeachment subpoenas, with obstruction of Congress.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/308883/original/file-20200107-123411-1911nuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/308883/original/file-20200107-123411-1911nuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/308883/original/file-20200107-123411-1911nuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/308883/original/file-20200107-123411-1911nuk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/308883/original/file-20200107-123411-1911nuk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/308883/original/file-20200107-123411-1911nuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=510&fit=crop&dpr=1 754w, https://images.theconversation.com/files/308883/original/file-20200107-123411-1911nuk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=510&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/308883/original/file-20200107-123411-1911nuk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=510&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The House Judiciary Committee on July 30, 1974, at the urging of the panel’s second-ranking Republican, moved on a 21-to-17 vote to recommend President Nixon’s impeachment on a charge that he ‘willfully disobeyed’ the committee’s subpoenas for 147 Watergate related tapes.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-house-judiciary-committee-at-the-urging-of-the-panels-news-photo/515575234?adppopup=true">Getty - Bettmann / Contributor</a></span>
</figcaption>
</figure>
<h2>Nixon-era Republicans drew a line</h2>
<p>In 1974, many House Republicans defended the impeachment subpoena power at great political risk.</p>
<p>In January of that year, President Nixon told House Republicans, “I’m going to <a href="https://www.nytimes.com/1974/01/24/archives/nixon-to-fight-like-hell-against-impeachment-step-nixon-vows-to.html">fight like hell</a>” against impeachment. </p>
<p>Nixon’s first move was to invoke “<a href="https://theconversation.com/will-trumps-use-of-executive-privilege-help-him-avoid-congressional-oversight-it-didnt-help-richard-nixon-116575">executive privilege</a>” to justify his refusal to turn over evidence, like his secretly recorded White House tapes, to congressional investigators.</p>
<p>A key House Republican, <a href="https://www.washingtonpost.com/archive/local/1985/07/24/ex-rep-hutchinson-dies/465b93a1-42dd-4e2a-bf2a-37cc1cf0ca78/">Edward Hutchinson of Michigan</a>, firmly drew the line. The ranking Republican on the House Judiciary Committee, Hutchinson said the doctrine of executive privilege “in an impeachment inquiry <a href="https://www.nytimes.com/1974/01/30/archives/nixon-faces-gop-move-for-data-in-house-inquiry-nixon-faces.html">must fail</a>.” </p>
<p>The committee’s Republican counsel, Albert Jenner, agreed “100,000 percent.” Jenner warned that <a href="https://www.nytimes.com/1974/01/30/archives/nixon-faces-gop-move-for-data-in-house-inquiry-nixon-faces.html">if the president resisted a subpoena</a>, “the committee could exercise its judgment and include the action in its consideration of whether articles of impeachment should be brought.” </p>
<p>In February 1974, the full House backed the committee up, granting it the power to subpoena anything and anyone up to <a href="https://www.nytimes.com/1974/02/07/archives/house-4104gives-subpoena-power-in-nixon-inquiry-judiciary-panel-is.html">the president himself</a>. The vote was bipartisan, 410 in favor, with only 4 Republicans opposed. </p>
<p>In another bipartisan move, the committee voted <a href="https://www.nytimes.com/1974/04/12/archives/house-subpoena-bids-president-turn-over-tapes-other-material-white.html">33 to 3 in April 1974</a> to subpoena Nixon’s tapes. The Senate Republican minority leader, Hugh Scott of Pennsylvania, warned that failure to comply would put the administration in “grave danger … with <a href="https://books.google.com/books?id=cEF1AwAAQBAJ&pg=PA206&lpg=PA206#v=onepage&q&f=false">serious consequences</a> possibly leading to impeachment.”</p>
<p>While today’s Republicans complain that the House didn’t leave it to the courts to decide whether the president has to comply with its subpoenas, in May 1974 only six of the committee’s 17 Republicans voted to punt the issue to the courts. As Jenner put it earlier that year, “<a href="https://www.nytimes.com/1974/01/30/archives/nixon-faces-gop-move-for-data-in-house-inquiry-nixon-faces.html">No court in the land</a> has the power to review House and Senate actions on impeachment.”</p>
<p>The committee voted 21 to 17 in July 1974 to impeach the president for <a href="https://www.nytimes.com/1974/07/31/archives/house-panel-21-to-17-charges-nixon-with-defying-subpoenas-ends-its.html">subpoena defiance</a>. Two Republicans voted with the Democratic majority. Nixon resigned in August before the full House had a chance to vote.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/308890/original/file-20200107-123377-116077n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/308890/original/file-20200107-123377-116077n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/308890/original/file-20200107-123377-116077n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=456&fit=crop&dpr=1 600w, https://images.theconversation.com/files/308890/original/file-20200107-123377-116077n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=456&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/308890/original/file-20200107-123377-116077n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=456&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/308890/original/file-20200107-123377-116077n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=574&fit=crop&dpr=1 754w, https://images.theconversation.com/files/308890/original/file-20200107-123377-116077n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=574&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/308890/original/file-20200107-123377-116077n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=574&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">U.S. President Richard M. Nixon announces his resignation on television, Washington, D.C.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-richard-m-nixon-sits-at-a-desk-holding-papers-as-news-photo/2695962?adppopup=true">Hulton Archive/Getty Images</a></span>
</figcaption>
</figure>
<h2>Rewriting history</h2>
<p>This bipartisan – nonpartisan – history is one that today’s congressional Republicans have erased and replaced. </p>
<p>Testifying as a Republican witness before the House Judiciary Committee, <a href="https://thehill.com/homenews/house/472947-read-jonathan-turley-testimony">law professor Jonathan Turley called</a> the constitutional principle that the House decides the evidence and witnesses required for an impeachment inquiry an “extreme position.” </p>
<p>But that position was endorsed by eight committee Republicans (and 20 Democrats) when <a href="https://books.google.com/books?id=bNJRAQAAIAAJ&ppis=_e&pg=PA280#v=onepage&q&f=false">they wrote</a> in May 1974 to President Nixon: “Under the Constitution it is not within the power of the President to conduct an inquiry into his own impeachment, to determine which evidence, and what version and portion of that evidence, is relevant and necessary to such an inquiry. These are matters which, under the Constitution, the House has the sole power to determine.” </p>
<p>This view was mainstream, not extreme, and retains <a href="https://twitter.com/FatalPolitics/status/1207752917819822081">majority support by Americans</a> today.</p>
<p>To justify the current congressional Republican position that the House should let the courts decide its subpoena powers, Turley, a professor of constitutional law, gave a comically inaccurate account of legal history.</p>
<p><a href="https://www.rev.com/blog/house-judiciary-committee-impeachment-hearing-transcript-day-1">According to Turley</a>, the Supreme Court in <a href="https://www.oyez.org/cases/1973/73-1766">United States v. Nixon</a> told the president, “‘We’ve heard your arguments. We’ve heard Congress’ arguments. And you know what? You lose. Turn over the material to Congress.’ You know, what that did for the Judiciary Committee is, it gave this body legitimacy.” </p>
<p>There are three problems with Turley’s history: First, the Supreme Court did not hear Congress’ arguments, since Congress never took the matter to court. The case of U.S. v. Nixon was pressed by the Justice Department’s Watergate special prosecutor. Second, the court did not order Nixon to turn over his tapes to Congress, only to the special prosecutor; therefore, third, the decision could not add anything to the House Judiciary Committee’s legitimacy.</p>
<p>Turley’s is partisan history for partisan purposes. It enables one party to abandon principle and precedent while accusing the other of doing the same.</p>
<p>[ <em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/129313/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ken Hughes is a researcher with the University of Virginia's Miller Center whose work is supported by grants from the National Historical Publications & Records Commission.</span></em></p>An expert on Watergate says that today’s House Republicans have taken precisely the opposite position than the GOP took in 1974 on the president’s power to withhold documents from Congress.Ken Hughes, Research Specialist, the Miller Center, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1165752019-05-08T21:24:41Z2019-05-08T21:24:41ZWill Trump’s use of executive privilege help him avoid congressional oversight? It didn’t help Richard Nixon<figure><img src="https://images.theconversation.com/files/273386/original/file-20190508-183106-rkwlld.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">On Aug. 9, 1974, Richard M. Nixon resigned and left the White House</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Associated-Press-Domestic-News-Dist-of-Columbi-/363e09d444e5da11af9f0014c2589dfb/38/0">AP/Chick Harrity</a></span></figcaption></figure><p>Like Donald Trump, Richard Nixon tried to stonewall congressional investigations into crimes allegedly committed in the White House. </p>
<p>“Why, we’ll just let it go to the (Supreme) Court. <a href="https://books.google.com/books?id=SyBzl29qbZ0C&lpg=PA227&ots=KcAVn--Dq3&dq=%E2%80%9CWhy%2C%20we%E2%80%99ll%20just%20let%20it%20go%20to%20the%20(Supreme)%20Court.%20Fight%20it%20like%20hell%E2%80%9D&pg=PA227#v=onepage&q=%E2%80%9CWhy,%20we%E2%80%99ll%20just%20let%20it%20go%20to%20the%20(Supreme)%20Court.%20Fight%20it%20like%20hell%E2%80%9D&f=false">Fight it like hell</a>,” Nixon said. </p>
<p>But the stone wall crumbled under pressure from the public, Congress and the courts, and its rubble formed the foundation for an article of impeachment.</p>
<p>As the Senate Watergate investigation began in 1973, Nixon took a position like <a href="https://www.usatoday.com/story/news/politics/2019/05/02/trump-not-let-mcgahn-testify-before-congress/3656604002/">Trump did on May 2</a>, when he barred former White House counsel Don McGahn from testifying before Congress about potential obstruction of justice by the president. </p>
<p>To block current and former White House aides from testifying before Congress, Nixon claimed that “<a href="https://www.presidency.ucsb.edu/documents/statement-about-executive-privilege">executive privilege</a>” shielded presidential conversations from congressional oversight. </p>
<p>And just as Trump claimed on Wednesday that executive privilege <a href="https://www.politico.com/story/2019/05/08/trump-invokes-executive-privilege-to-block-release-of-unredacted-mueller-report-1311738">allows him to withhold</a> the complete, unredacted Mueller report from Congress, Nixon claimed it allowed him to withhold executive branch documents.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/273390/original/file-20190508-183083-1m1yf02.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/273390/original/file-20190508-183083-1m1yf02.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/273390/original/file-20190508-183083-1m1yf02.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/273390/original/file-20190508-183083-1m1yf02.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/273390/original/file-20190508-183083-1m1yf02.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/273390/original/file-20190508-183083-1m1yf02.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/273390/original/file-20190508-183083-1m1yf02.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/273390/original/file-20190508-183083-1m1yf02.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Donald Trump asserted executive privilege to keep information about the Mueller report from Congress.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Fact-Check-Week/e6969fdccdea4b2e841e19c23390b5f4/206/0">AP/Alex Brandon</a></span>
</figcaption>
</figure>
<h2>Why Nixon resisted</h2>
<p>Nixon’s claims of executive privilege were a matter of political survival. </p>
<p>One of the crimes for which Congress was investigating Nixon was <a href="https://www.history.com/this-day-in-history/nixon-charged-with-first-of-three-articles-of-impeachment">obstruction of justice</a>, and he was guilty. </p>
<p>There is no credible evidence that Nixon knew about the <a href="https://www.quora.com/Did-Richard-Nixon-know-about-the-Watergate-break-in-before-it-happened">underlying crime</a>, the <a href="https://millercenter.org/the-presidency/educational-resources/watergate-break">Watergate break-in</a>, until after the burglars got caught. </p>
<p>But Nixon did know that some of those involved in the break-in were linked to other crimes he personally initiated, such as the illegal leaking of information obtained from <a href="https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/rule6e.htm">grand juries</a> to discredit his political enemies. </p>
<p>The president had obstructed the FBI investigation of Watergate to conceal his own crimes. On June 23, 1972, for example, in a conversation captured on his own secret White House taping system, Nixon approved a plan to use the CIA to obstruct the FBI investigation. This tape ultimately became known as “the <a href="https://millercenter.org/the-presidency/secret-white-house-tapes/smoking-gun">smoking gun</a>,” since it proved that Nixon was guilty of obstruction.</p>
<p>Nixon was using “executive privilege” to conceal his obstruction from Congress and the Watergate special prosecutor.</p>
<h2>Political survival</h2>
<p>Nixon could not hold the hard line for long. It made him look guilty, even to supporters, who started asking why he didn’t just let his aides testify if he was innocent. </p>
<p>And when former aides decided to testify against him, as former White House counsel <a href="http://www.washingtonpost.com/wp-srv/onpolitics/watergate/johndean.html">John W. Dean III did on national television</a>, it was obvious Nixon had no power to stop them. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=226&fit=crop&dpr=1 600w, https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=226&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=226&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=284&fit=crop&dpr=1 754w, https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=284&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=284&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">New York Times, May 23, 1973.</span>
<span class="attribution"><a class="source" href="https://timesmachine.nytimes.com/timesmachine/1973/05/23/issue.html?action=click&contentCollection=Archives&module=LedeAsset&region=ArchiveBody&pgtype=article">Screenshot, NY Times archive</a></span>
</figcaption>
</figure>
<p>If Nixon wanted any current or former White House aides to testify in his favor – there were many who were willing to, from H.R. Haldeman to Patrick Buchanan – and offset the bad publicity he was getting from the hearings, he had to reverse himself. <a href="https://law.justia.com/cases/federal/appellate-courts/F2/487/700/82051/">In May 1973, Nixon announced that</a> “executive privilege will not be invoked as to any testimony concerning possible criminal conduct.”</p>
<p>But he still withheld White House documents. </p>
<p>Again, it was a matter of political survival. He could plausibly deny testimony against him, but it was impossible to deny <a href="https://www.washingtonpost.com/politics/president-refuses-to-turn-over-tapes-ervin-committee-cox-issue-subpoenas/2012/06/04/gJQAWfG9IV_story.html?utm_term=.ad7c5ce80182">his own voice on tape</a>. </p>
<h2>Struggle over privilege</h2>
<p>Once the existence of his <a href="https://www.c-span.org/video/?313828-1/senate-watergate-committee-testimony">secret tapes was revealed to Congress in July 1973, they</a> became the center of the <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/072473-1.htm">struggle over executive privilege</a>.</p>
<p><a href="https://millercenter.org/three-little-words">Congress and the special prosecutor wanted the tapes</a>, because they could prove once and for all who was telling the truth. Nixon withheld them for that same reason. </p>
<p>The issue came to a head once the <a href="https://timesmachine.nytimes.com/timesmachine/1973/10/31/91024202.pdf">House Judiciary Committee began an impeachment inquiry</a>. </p>
<p>The committee’s ranking Republican, Rep. Edward Hutchinson of Michigan, said at the inquiry’s outset that he “would tell (the White House) that <a href="https://www.nytimes.com/1974/02/03/archives/on-the-record-about-the-past.html">executive privilege in the face of an impeachment inquiry must fall</a>.” </p>
<p>The notion that the president enjoys the privilege of withholding information from Congress is based in the <a href="https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=5725&context=penn_law_review">constitutional separation of powers, but impeachment is an exception</a> to that separation. Impeachment is a legislative check on executive power, just as the veto, for example, is an executive check on legislative power. </p>
<p>Nixon’s own Justice Department could not find a single example in history of anyone <a href="https://www.nytimes.com/1974/02/28/archives/a-justice-study-assays-inquiry-confrontation-of-highest-magnitude.html">ever</a> invoking executive privilege in an impeachment inquiry – not even Andrew Johnson, the only president to have been impeached by that point. (Congress can impeach any <a href="https://history.house.gov/Institution/Origins-Development/Impeachment/">civil officer</a> of the U.S. government.) </p>
<p>When the Judiciary Committee subpoenaed Nixon’s tapes, Nixon refused to turn them over, saying he had already provided Congress with “the <a href="https://www.nytimes.com/1974/06/11/archives/president-defies-house-subpoena-for-more-tapes-letter-to-rodino.html">full story</a> of Watergate.” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/273392/original/file-20190508-183103-1khyfuz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/273392/original/file-20190508-183103-1khyfuz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/273392/original/file-20190508-183103-1khyfuz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=494&fit=crop&dpr=1 600w, https://images.theconversation.com/files/273392/original/file-20190508-183103-1khyfuz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=494&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/273392/original/file-20190508-183103-1khyfuz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=494&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/273392/original/file-20190508-183103-1khyfuz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=621&fit=crop&dpr=1 754w, https://images.theconversation.com/files/273392/original/file-20190508-183103-1khyfuz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=621&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/273392/original/file-20190508-183103-1khyfuz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=621&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The original Nixon White House tape recorder.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Nixon-Tapes/1d7e0d2288fd4b0eb398487651e84f66/1/0">National Archives via the AP</a></span>
</figcaption>
</figure>
<h2>The court acts, the president resigns</h2>
<p>But Nixon was forced to give his tapes to the special prosecutor when the <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/072574-1.htm">Supreme Court</a> decided 8-0 on July 24, 1974, that executive privilege did not give a president the right to refuse to hand over evidence in a criminal trial.</p>
<p>Within a week, the Judiciary Committee, which was debating impeachment counts, voted 21-17 <a href="https://www.nytimes.com/1974/07/31/archives/house-panel-21-to-17-charges-nixon-with-defying-subpoenas-ends-its.html">to charge Nixon with defying congressional subpoenas</a>. </p>
<p>“If we do not pass this article today, the whole impeachment power becomes meaningless,” <a href="https://library.cqpress.com/cqalmanac/document.php?id=cqal74-1223105">said Rep. Lawrence J. Hogan, a Republican of Maryland</a>, father of the <a href="https://governor.maryland.gov/governor-larry-hogan/">current Maryland governor, Larry Hogan</a>.</p>
<p>In August, publication of a transcript of the the smoking gun tape confirmed that the president was guilty of obstruction of justice. <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/080974-3.htm">Nixon resigned</a> rather than give Congress the chance to remove him. </p>
<p>His claims of executive privilege had helped him hold onto power an extra year. Invoking executive privilege was not a winning play – but it was the last one available to a guilty president.</p>
<p><em>This article has been updated to correct the vote count when the Judiciary Committee charged Nixon with defying Congressional subpoenas.</em></p><img src="https://counter.theconversation.com/content/116575/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>It's not relevant to this article, but Ken Hughes works for an organization, the Miller Center, that receives government funding through the National Historical Publications & Records Commission.</span></em></p>President Trump has invoked executive privilege to stymie congressional investigators. Another president, Richard Nixon, did the same thing. It helped Nixon hold onto power – but only for a while.Ken Hughes, Research Specialist, the Miller Center, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1141212019-04-04T10:45:05Z2019-04-04T10:45:05ZCongressional oversight is at the heart of America’s democracy<figure><img src="https://images.theconversation.com/files/267351/original/file-20190403-177178-1g9ao3f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lawmakers have the power to constrain the White House. </span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-US-Ireland/0d8dd0aac627458aabe2b0740e286183/83/0">AP Photo/Susan Walsh</a></span></figcaption></figure><p>President Donald Trump increasingly acts as though he believes he can <a href="https://www.cnn.com/2019/02/08/politics/white-house-khashoggi-deadline/index.html">ignore Congress</a> and set wide-ranging national policies on his own.</p>
<p>He has, for instance, recently taken unilateral steps to <a href="https://www.politico.com/story/2019/03/30/trump-cut-foreign-aid-central-america-1244463">cut off foreign aid</a> to countries he says are <a href="https://www.cnbc.com/2018/06/19/trump-cut-foreign-aid-to-countries-sending-not-their-best-people.html">sending too many migrants</a> to the United States. He wants to redirect some of the Pentagon’s budget to building the <a href="https://www.vox.com/policy-and-politics/2019/3/26/18282432/wall-emergency-funding-trump-news-congress">border wall</a> that Congress rejected. His administration has <a href="https://energycommerce.house.gov/committee-activity/hearings/hearing-on-examining-the-failures-of-the-trump-administration-s-inhumane">separated families</a> at the border, rolled back <a href="https://www.help.senate.gov/imo/media/doc/2019-03-05%20Murray%20Davis%20Servicing%20Oversight%20Letter%20to%20ED.pdf">student loan protections</a> and <a href="https://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=109029">energy efficiency</a> standards, and reportedly blocked AT&T Inc.’s US$85 billion acquisition of <a href="https://www.reuters.com/article/us-time-warner-at-t-congress/democrats-probe-whether-white-house-interfered-in-att-time-warner-merger-idUSKCN1QO2IX">Time Warner</a>. </p>
<p>Congress has responded by scheduling hearings and requesting documents from the administration. So far, Trump has largely dismissed this congressional oversight as “<a href="https://www.theatlantic.com/politics/archive/2019/01/trumps-new-catchphrase-presidential-harassment/579364/">presidential harassment</a>” and attempted to resist by claiming <a href="https://www.cnn.com/2019/03/08/opinions/democrats-battle-against-trump-over-executive-privilege-garber/index.html">executive privilege</a> exempts him from oversight. </p>
<p>In his <a href="https://www.cnbc.com/2019/02/05/trump-calls-for-end-to-house-investigations-at-state-of-the-union.html">State of the Union</a> address, Trump went so far as to say that “if there is going to be peace and legislation, there cannot be war and investigation.”</p>
<p>As a <a href="https://scholar.google.com/citations?user=eVP-tTgAAAAJ&hl=en&oi=sra">constitutional law scholar</a>, I’m certain that the answer to who wins this fight is clear. </p>
<p>Presidential power to override Congress is limited to a very small set of circumstances. As for everything else, the <a href="https://www.chicagotribune.com/news/opinion/commentary/ct-perspec-congressional-oversight-myths-trump-investigation-0107-20190104-story.html">Constitution empowers Congress</a> to set the nation’s course and keep it on track through oversight. </p>
<p>Congress can eliminate almost every federal agency in the country or, instead, redirect agencies’ efforts toward building homes for the poor and require daily reports on progress toward that goal. As long as the votes are there in Congress to pursue a course of action, presidents can’t do much about it.</p>
<h2>Carrying out laws</h2>
<p>Oversight allows Congress to ensure the executive is properly carrying out the laws as Congress intends. </p>
<p>The Brookings Institution, a centrist think tank, has created a new <a href="https://www.brookings.edu/interactives/tracking-house-oversight-in-the-trump-era/">“oversight tracker,”</a> which shows that Congress is doing this across a wide range of issues and agencies: energy, education, immigration, commerce, civil rights, rule of law, ethics and more.</p>
<p>Congress is asking the administration important policy questions. Are adequate rules, resources and incentives in place to reunite families who have been <a href="https://docs.house.gov/meetings/IF/IF02/20190207/108846/HHRG-116-IF02-20190207-SD002-U1.pdf">separated at the border</a>? Are the nation’s anti-trust laws being used to achieve <a href="https://cicilline.house.gov/sites/cicilline.house.gov/files/documents/AT&T_Antitrust__Delrahim%20Letter_3.7.19.pdf">political</a> rather than legal ends? Are <a href="https://www.help.senate.gov/imo/media/doc/2019-03-05%20Murray%20Davis%20Servicing%20Oversight%20Letter%20to%20ED.pdf">student loan providers</a> being held accountable for their failure to treat students fairly? Why have <a href="https://docs.house.gov/meetings/IF/IF03/20190307/109029/HHRG-116-IF03-20190307-SD002.pdf">energy efficiency improvements slowed down</a> or reversed?</p>
<p>All federal agencies, commissions and offices that presidents direct were <a href="https://www.justia.com/administrative-law/legislative-agencies/">created by Congress</a>.
<a href="https://www.foreffectivegov.org/node/3461">Congress has created more and more federal agencies</a> over time, and increased the scope of the executive branch’s authority. But the power of individual presidents remains constitutionally limited to the powers that Congress gives them.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/267449/original/file-20190403-177187-18tr0pl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/267449/original/file-20190403-177187-18tr0pl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/267449/original/file-20190403-177187-18tr0pl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/267449/original/file-20190403-177187-18tr0pl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/267449/original/file-20190403-177187-18tr0pl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/267449/original/file-20190403-177187-18tr0pl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/267449/original/file-20190403-177187-18tr0pl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/267449/original/file-20190403-177187-18tr0pl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A January 2019 Cabinet meeting.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump/c26414c697284a149aeb6b0404e1af65/211/0">AP Photo/Evan Vucci</a></span>
</figcaption>
</figure>
<h2>Operating within limits</h2>
<p>The executive branch started out small. </p>
<p>George Washington only had <a href="https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/cabinet-members/">four Cabinet officials</a>. Lincoln had <a href="http://www.mrlincolnswhitehouse.org/residents-visitors/cabinet-vice-presidents/">seven</a>.</p>
<p>The executive branch remained small until the early 20th century, when the <a href="https://www.nber.org/chapters/c6891.pdf">Great Depression</a> led Congress to expand and create various agencies to deal with the economy, poverty and unemployment.</p>
<p>In the 1960s and ‘70s, Congress expanded the executive branch to its approximate current shape and size, adding agencies like <a href="https://www.hud.gov/about/qaintro">Housing and Urban Development</a>, <a href="https://www.transportation.gov/mission/about-us">Transportation</a>, <a href="https://www.energy.gov/management/office-management/operational-management/history/brief-history-department-energy">Energy</a> and <a href="https://www2.ed.gov/about/overview/focus/what.html">Education</a>. Since then, the number of federal employees has hovered around <a href="https://www.brookings.edu/blog/fixgov/2017/02/13/ten-questions-and-answers-about-americas-big-government/">2 million</a>.</p>
<p>Their immediate boss has always been the person in the Oval Office. But the Constitution still demanded that these executive agencies and their staff operate within the limits Congress set. Congress <a href="https://supreme.justia.com/cases/federal/us/295/495/">cannot delegate</a> lawmaking to the president or any other executive officer or agency. Legislators cannot, for instance, leave it to the president to singlehandedly figure out what type of behavior to criminalize or how the nation should spend taxpayer dollars.</p>
<p>The Supreme Court has explained that Congress <a href="https://supreme.justia.com/cases/federal/us/293/388/">must establish rules</a> that point agencies in the right direction, even if Congress wants those agencies to exercise discretion implementing the law. </p>
<p>None of this is to suggest that presidents lack significant power. </p>
<p>Without agencies enforcing the law under the president’s leadership, federal laws would be nothing but ink on paper. And in our increasingly complex world, Congress <a href="https://www.publicknowledge.org/news-blog/blogs/the-case-for-agency-authority">needs agencies</a> to fill gaps in the law. </p>
<p>Congress, for instance, can prohibit the release of pollutants that make the <a href="https://www.law.cornell.edu/supct/html/99-1257.ZS.html">air unsafe</a> to human health. But if lawmakers are not confident that they have discovered all the unsafe pollutants or the precise level at which they pose a risk, they can direct agencies to assess those issues further as science develops and regulate accordingly.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/267451/original/file-20190403-177184-tsop4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/267451/original/file-20190403-177184-tsop4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=489&fit=crop&dpr=1 600w, https://images.theconversation.com/files/267451/original/file-20190403-177184-tsop4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=489&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/267451/original/file-20190403-177184-tsop4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=489&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/267451/original/file-20190403-177184-tsop4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=614&fit=crop&dpr=1 754w, https://images.theconversation.com/files/267451/original/file-20190403-177184-tsop4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=614&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/267451/original/file-20190403-177184-tsop4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=614&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Budget talks require negotiations among lawmakers, not just between the White House and Congress.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Budget-Battle/1dd165d1fdaf4eb7a19462c522db8469/30/0">AP Photo/Pablo Martinez Monsivais</a></span>
</figcaption>
</figure>
<p>The important lesson for today is that the <a href="https://thehill.com/opinion/white-house/369379-no-presidential-power-is-beyond-congress">vast majority of federal power lies in the hands of legislators</a>, not presidents. </p>
<p>Save the most central functions of the executive – law enforcement, managing the Treasury, foreign affairs and the military – presidents only have the power and agencies that Congress gives them.</p>
<h2>Holding agencies accountable</h2>
<p>No matter how much power Congress bestows upon presidents and agencies, that power is constrained by the continuing and final checks the Constitution gives Congress. </p>
<p>Presidents may nominate agency heads, ambassadors and federal judges at their discretion, but senators <a href="https://guides.ll.georgetown.edu/c.php?g=365722&p=2471070">confirm or reject</a> them. Equally important, the president’s <a href="https://www.law.cornell.edu/constitution/articleii">constitutional power</a> to make those appointments only covers high-ranking officials.</p>
<p>Congress can, on a case-by-case basis, choose who will appoint inferior officers and <a href="https://www.law.cornell.edu/supremecourt/text/487/654">limit the president’s ability</a> to remove them. For instance, to address ethical breaches by the executive branch following Watergate, Congress passed legislation establishing an <a href="https://www.law.cornell.edu/supremecourt/text/487/654">independent counsel</a>, an official which a special court rather than the president or attorney general would appoint for the sake of impartiality.</p>
<p>Congress also sets all the agencies’ <a href="https://fas.org/sgp/crs/misc/R45442.pdf">budgets</a> on an annual basis and dictates how they will spend their budgets. In short, lawmakers wield enormous authority over the presidency and they may ask for almost anything they want.</p>
<p>The people can fire Congress every two years, but they rely on their representatives to hold the White House accountable all the time. Americans need Congress to make sure presidents and their staff are enforcing the law in ways that meet the public’s needs. </p>
<p>Ultimately, the executive branch – like Congress – works for the people, not presidents.</p><img src="https://counter.theconversation.com/content/114121/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Derek W. Black does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Constitution gives Congress the power over the executive branch, which it’s free to flex.Derek W. Black, Professor of Law, University of South CarolinaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1143982019-03-28T10:39:20Z2019-03-28T10:39:20ZWhat you need to know about the Mueller report: 4 essential reads<figure><img src="https://images.theconversation.com/files/270046/original/file-20190418-28094-d3vbs7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Attorney General William Barr at an April 18 press conference about the public release of the special counsel's report on Donald Trump. </span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Russia-Probe/c1f2dd364890466c8d41edd7eb1d08cb/11/0">AP Photo/Patrick Semansky</a></span></figcaption></figure><p>The political saga triggered by the special counsel investigation into Donald Trump, which has cast such a long shadow over his presidency, will continue long after the inquiry’s end.</p>
<p>According to U.S. Attorney General William Barr, prosecutor Robert Mueller <a href="https://www.npr.org/2019/03/22/638169023/robert-mueller-submits-report-on-russia-investigation-to-attorney-general-barr">determined that Trump’s campaign did not collude with Russia</a> to influence the 2016 presidential election. The special counsel did not make a conclusion about whether Trump committed obstruction of justice.</p>
<p>Because Barr has not made Mueller’s more than 300-page report public, his exact findings remain unknown. Congressional Democrats are demanding access to the full report by April 2 to see what Mueller uncovered during his 22-month investigation into the president.</p>
<p>As this federal probe turns into a partisan battle, here are four key threads our experts have been watching.</p>
<h2>1. Obstruction of justice</h2>
<p>In a March 24 letter to Congress summarizing Mueller’s findings, Barr wrote that the evidence collected is “not sufficient to establish that the President committed an obstruction-of-justice offense.”</p>
<p>That differs from Mueller’s conclusion. He wrote that “while this report does not conclude that the president committed a crime, it also does not exonerate him.” </p>
<p>How can two people draw different conclusions from the same evidence?</p>
<p>“Obstruction of justice is a complicated matter,” <a href="https://theconversation.com/trump-and-obstruction-of-justice-an-explainer-114270">writes law professor David Orentlicher of the University of Nevada-Las Vegas</a>.</p>
<p>According to federal law, obstruction occurs when a person tries to impede or influence a trial, investigation or other official proceeding with threats or corrupt intent.</p>
<p>“Bribing a judge and destroying evidence are classic examples of this crime,” Orentlicher says.</p>
<p>But other actions may constitute obstruction too, depending on the context. And some actions that look like obstruction may not be, because the law requires a “corrupt” intention to obstruct justice as well.</p>
<p>President Trump did many things that influenced federal investigations into him and his aides, Orentlicher points out, including firing FBI Director James Comey and publicly attacking the special counsel’s work.</p>
<p>The legal question is: Did he do so with “corrupt” intent?</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/266184/original/file-20190327-139374-rdwqav.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/266184/original/file-20190327-139374-rdwqav.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/266184/original/file-20190327-139374-rdwqav.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/266184/original/file-20190327-139374-rdwqav.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/266184/original/file-20190327-139374-rdwqav.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/266184/original/file-20190327-139374-rdwqav.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/266184/original/file-20190327-139374-rdwqav.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Barr’s March 24 letter to Congress.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Russia-Probe/fb81cf81c274490e90b6a3d6b162287c/6/0">AP Photo/Jon Elswick</a></span>
</figcaption>
</figure>
<h2>2. Release of the report</h2>
<p>That’s among the many things House Democrats hope to learn from reading Mueller’s report. </p>
<p>But they <a href="https://theconversation.com/how-trump-and-barr-could-stretch-claims-of-executive-privilege-and-grand-jury-secrecy-114166">may never see it</a>, writes Charles Tiefer, professor of law at the University of Baltimore. He expects Trump and Barr will do “everything in their power to keep secret the full report and, equally important, the materials underlying the report.”</p>
<p>Tiefer was special deputy chief counsel of the House Iran-contra Investigation in the 1980s and has worked on many major House investigations.</p>
<p>“I saw the tricks the executive branch can pull to withhold evidence,” he says.</p>
<p>The main legal grounds Barr and Trump will try to use for suppressing the Mueller report, according to Tiefer, are executive privilege and grand jury secrecy.</p>
<p>Trump is likely to argue that executive privilege – the principle that the president can withhold certain information from the courts, Congress or others – permits him to keep much of the Mueller report private.</p>
<p>Executive privilege cannot be used to shield evidence of crime. But that’s where Barr’s exoneration of Trump really helps the White House, Tiefer says.</p>
<p>The attorney general, for his part, has already invoked grand jury secrecy – the rule that attorneys, jurors and others “must not disclose a matter occurring before the grand jury” – to keep Mueller’s report private.</p>
<p>Tiefer suspects Barr will seek to maximize what’s the law by using “the much-deprecated ‘Midas touch’ doctrine,” which could bury “everything indirectly and remotely having some attenuated whiff of a grand jury” as protected information.</p>
<h2>3. Politics versus the law</h2>
<p>In demanding Mueller’s full report, Democrats have asserted that Barr cannot be trusted to interpret its findings objectively because he was appointed by the president. They say that makes his exoneration of Trump a political, rather than legal, determination.</p>
<p>The question of Barr’s independence first arose during his confirmation hearing in February.</p>
<p>Barr, a veteran lawyer who previously served as President George H.W. Bush’s attorney general, interprets the Constitution as giving the president almost unlimited power. He has referred to the attorney general – the government’s top prosecutor – as “the president’s lawyer.”</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/266187/original/file-20190327-139352-s5xr9x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/266187/original/file-20190327-139352-s5xr9x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=345&fit=crop&dpr=1 600w, https://images.theconversation.com/files/266187/original/file-20190327-139352-s5xr9x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=345&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/266187/original/file-20190327-139352-s5xr9x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=345&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/266187/original/file-20190327-139352-s5xr9x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=433&fit=crop&dpr=1 754w, https://images.theconversation.com/files/266187/original/file-20190327-139352-s5xr9x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=433&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/266187/original/file-20190327-139352-s5xr9x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=433&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Barr was handpicked by Trump to be in office when the Mueller report came in.</span>
<span class="attribution"><span class="source">AP Photo/Alex Brandon/Jose Luis Magana</span></span>
</figcaption>
</figure>
<p>The question of who the attorney general works for <a href="https://theconversation.com/nominating-a-crony-loyalist-or-old-buddy-for-attorney-general-is-a-us-presidential-tradition-108160">dates back centuries</a>, says Austin Sarat, a political scientist at Amherst College. That’s because the position is not mentioned in the Constitution. </p>
<p>“It was created when the First Congress passed the Judiciary Act of 1789,” Sarat writes.</p>
<p>That law called for the appointment of a person “learned in the law, to act as attorney general for the United States.” It laid out such limited duties for the role that “the attorney general was to be a part-time official” reporting to the president, Sarat says.</p>
<p>As a result, “Throughout American history, there have been different visions of the role of the attorney general and his or her relationship to the president,” he adds.</p>
<h2>4. Loyalty to the president</h2>
<p>Trump expects <a href="https://theconversation.com/why-does-a-president-demand-loyalty-from-people-who-work-for-him-95199">personal loyalty from his staff</a> – including from his attorney general – reports Yu Ouyang, professor of political science at Purdue University Northwest.</p>
<p>The president fired the previous attorney general, Jeff Sessions, in November 2017, reportedly because Sessions’ recused himself from overseeing the FBI’s probe into Russian meddling – a betrayal that opened the door for Mueller’s appointment as special counsel. That’s how Barr got the attorney general job.</p>
<p>Ouyang, who studies loyalty and politics, says presidents it’s normal for presidents to prefer loyalists.</p>
<p>“Loyalty comes in handy for presidents when they enter office and ask, ‘How do I select the people who will help carry out my agenda?’”</p>
<p>What sets Trump apart, for Ouyang, is his “exceptional emphasis on loyalty.” He values it over other critical qualities like competence and honesty. And he appoints his staff accordingly.</p>
<p>That, say Democratic lawmakers, is why Barr cannot be the only public official to see the evidence Mueller collected on Trump.</p>
<p><em>This article is a round-up of stories from The Conversation’s archive.</em></p><img src="https://counter.theconversation.com/content/114398/count.gif" alt="The Conversation" width="1" height="1" />
As the special counsel’s investigation of Trump turns into a partisan battle in Congress, here are four key issues to follow.Catesby Holmes, International Editor | Politics Editor, The Conversation USLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1141662019-03-25T03:37:11Z2019-03-25T03:37:11ZHow Trump and Barr could stretch claims of executive privilege and grand jury secrecy<figure><img src="https://images.theconversation.com/files/265488/original/file-20190325-36270-wll63w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Attorney General William P. Barr, appointed by Donald Trump, has provided Congress with only a summary of Mueller's report.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/Search?query=barr+trump+nomination&ss=10&st=kw&entitysearch=&toItem=18&orderBy=Newest&searchMediaType=allmedia">AP Photo/Alex Brandon/Jose Luis Magana</a></span></figcaption></figure><p><a href="https://www.washingtonpost.com/context/read-attorney-general-barr-s-principal-conclusions-of-the-mueller-report/?noteId=9048a12b-2332-4645-a1be-d645db216eb5&questionId=218b8095-c5e3-4eab-9135-4170f5b3e87f&utm_term=.3eaad741bdb1">Attorney General William Barr’s letter</a> to Congress, delivered Sunday, purports to brief lawmakers about the Mueller report.</p>
<p>What it really does is set the stage for a battle royale with Trump and Barr doing everything in their power to keep secret the full report and, equally important, the materials underlying the report. They’re likely to fight Democrats in Congress, if not both parties, over the materials’ release. And while they’ll probably cite a range of reasons for their objections to revealing the report, they also share an expansive view of a president’s right to keep his discussions secret.</p>
<p>The public and Congress are unable to judge whether Barr’s conclusions are justified because Barr’s letter is mostly silent about the underlying Mueller report conclusions and evidence. This would be remedied in time if Barr were required to provide the full report and its supporting witness and documentary evidence. </p>
<p>But Trump and Barr each have tools to minimize the access of House investigations to the report and evidence. Despite the end of Mueller’s probe, those investigations continue: Democrat Jerrold Nadler, chairman of the House Judiciary Committee, made it clear on Sunday <a href="https://www.nytimes.com/2019/03/24/us/politics/trump-impeachment-democrats.html">that he plans to “move forward” with his committee’s investigations</a>, “into obstruction of justice, abuses of power, corruption, to defend the rule of law, which is our job.” </p>
<p>The key grounds for Barr and Trump to justify withholding of evidence are <a href="https://www.law.cornell.edu/rules/frcrmp/rule_6">grand jury secrecy</a> and <a href="https://www.lawfareblog.com/primer-executive-privilege-and-executive-branch-approach-congressional-oversight">executive privilege</a>. </p>
<h2>It’s been done before</h2>
<p>To be sure, these grounds for withholding, properly and narrowly applied, <a href="https://www.justice.gov/file/23246/download">have support in precedent</a>.</p>
<p>But I believe that Trump and Barr can be counted on to use every means available to overstate and exaggerate the degree to which these doctrines justify withholding this information from justifiable, duly-authorized House investigations. </p>
<p>I was <a href="https://www.judiciary.senate.gov/imo/media/doc/07-11-17%20Tiefer%20Testimony.pdf">special deputy chief counsel of the House Iran-contra Investigation</a> and <a href="https://ogc.house.gov/about/prior-general-counsels">acting general counsel of the House of Representatives</a> working with many major House investigations. I saw the tricks the executive branch can pull to withhold evidence. </p>
<p>And I saw the potential for the extreme extent that Trump and Barr could go to keep important materials secret.</p>
<p>Mueller’s investigation included presenting evidence to a grand jury. So let us start with the rule that attorneys, jurors and others “<a href="https://www.law.cornell.edu/rules/frcrmp/rule_6">must not disclose a matter occurring before the grand jury</a>” – a rule that could be used to keep much of the Mueller report secret.</p>
<p>In its precise form, this covers “proceedings” of the grand jury. These “proceedings” are occasions when the jurors themselves meet and hear evidence in an investigation. Typically, in investigations of a president or those around him, “proceedings” encompass only a small fraction of the overall body of witnesses and documents. </p>
<p>Voluntary witnesses can be interviewed by the FBI and prosecutors, without the unnecessary trappings of the grand jury. Such witnesses need only attend “proceedings” to the very limited extent that the jurors themselves need to hear them in person to vote an indictment.</p>
<p>Similarly, <a href="https://crsreports.congress.gov/product/pdf/R/R45456">the documents accumulated in an investigation</a> are only to a very limited extent brought to the grand jurors themselves, as needed for indictment. Over 90 percent of the time, interview memos by the FBI and prosecutors, not grand jury transcripts and specific grand jury exhibits, record the witness and documentary information.</p>
<h2>Defining a ‘proceeding’</h2>
<p>But Barr can be expected to wield the much-deprecated <a href="https://www.judiciary.senate.gov/imo/media/doc/08-05-15%20Brian%20Testimony.pdf">“Midas touch” doctrine</a>.<br>
Like King Midas’ touch that turned everything into gold, the “Midas touch” doctrine turns everything indirectly and remotely having some attenuated whiff of a grand jury into walled-up “proceedings” of the grand jury. </p>
<p>For example, take the former national security adviser, Michael Flynn, who <a href="https://www.politifact.com/truth-o-meter/article/2018/dec/05/detailing-michael-flynns-turn-trump-mueller/">cooperated with Mueller’s investigation</a>.</p>
<p>Mueller surely has full FBI and prosecutors’ materials and interviews regarding what Flynn said about <a href="https://www.nytimes.com/2017/12/06/us/politics/michael-flynn-russia-sanctions-ripped-up-whistleblower.html">Trump’s opposition to sanctions for Russia</a>. Yet Barr’s letter says nothing of this, even though the actual Mueller report may include a full accounting of it. </p>
<p>Here’s what could then happen if Flynn even once spoke to a grand jury: Using the “Midas touch” doctrine, Barr – if he provides a version of the Mueller report to the public – could keep all of the evidence secret that Flynn provided to law enforcement. </p>
<p>And the public would not even know if this material was expunged.</p>
<h2>What Trump can do</h2>
<p>Executive privilege is the principle that the <a href="https://www.npr.org/templates/story/story.php?storyId=11527747">president can withhold specific kinds of information from the courts, Congress or others</a>. It similarly provides a potent tool for Trump to withhold much of the Mueller report. </p>
<p>Executive privilege cannot be used to shield evidence of crime. Since Barr wrote in his letter that <a href="https://www.nytimes.com/2019/03/24/us/politics/mueller-report-summary.html">Mueller would not exonerate Trump for obstruction</a> of justice, which is a crime, I believe executive privilege should not be used to shield Trump’s communications that relate to obstruction. </p>
<p>In its narrow form, <a href="https://www.lawfareblog.com/primer-executive-privilege-and-executive-branch-approach-congressional-oversight">executive privilege only applies to communications with the president and those who serve him as advisers</a>. </p>
<p>So even if Trump has left an evidentiary trail a mile wide showing his intent to snuff out the Mueller inquiry, I expect Trump will claim that is all behind a wall of executive privilege. </p>
<p>And, in the broadest interpretation, executive privilege could supposedly stretch far beyond the president’s own communications, down to lowly assistants and factotums who know about <a href="https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1035&context=jcl">“pre-decisional deliberations”</a> at any level, high or low. </p>
<p>In this interpretation, if there are intelligence agency deputies who contributed to the conclusion, contrary to the president, of the Russian threat, those deputies and their reports are all “pre-decisional deliberations” shielded by executive privilege.</p>
<p>Will the House of Representatives fight against Trump and Barr’s claims of privilege? </p>
<p>Of course. The Framers called the House the <a href="https://www.nytimes.com/1974/01/21/archives/grand-inquest-of-the-nation-abroad-at-home.html">“Grand Inquest” of the nation</a> for a reason.</p><img src="https://counter.theconversation.com/content/114166/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles Tiefer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The president and attorney general can try to keep the findings of Mueller’s investigation secret. They’ll likely use both the secrecy of grand jury proceedings and executive privilege to do that.Charles Tiefer, Professor of law, University of BaltimoreLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/795372017-06-23T01:15:19Z2017-06-23T01:15:19ZWhat happens if Trump’s White House invokes executive privilege?<p>Donald Trump’s presidency has been defined by a central theme: Trump’s belief that ordinary rules and laws do not apply to him.</p>
<p>Trump has made clear that he believes it is up to his <a href="http://www.businessinsider.com/trump-james-mattis-override-torture-2017-1">personal discretion</a> to order torture – even though torture is <a href="https://www.counterpunch.org/2008/05/06/under-u-s-law-torture-is-always-illegal/">illegal under all circumstances</a>. In ordering a <a href="https://www.usatoday.com/story/opinion/2017/04/07/syria-attack-legal-only-congress-can-say-column/100163700/">military strike against Syria</a> in April, Trump brushed aside constitutional requirements that Congress approve such action unless the U.S. faces imminent attack. And he has defended his presidency by <a href="http://www.huffingtonpost.com/brianne-j-gorod/can-courts-hold-trump-accountable_b_13306772.html">falsely claiming</a> that the <a href="http://www.msnbc.com/rachel-maddow-show/trumps-new-boast-the-president-cant-have-conflict-interest">president is incapable of having conflicts of interest</a>.</p>
<p>I have argued in the past that Presidents George W. Bush and Barack Obama showed there is reason to be concerned about post-9/11 presidents testing the <a href="https://www.kirkusreviews.com/book-reviews/chris-edelson/power-without-constraint/">legal limits of their power</a>. The stakes are even higher now with Trump. He has demonstrated <a href="https://www.nytimes.com/2016/12/16/opinion/sunday/is-donald-trump-a-threat-to-democracy.html">authoritarian tendencies</a> and <a href="http://www.marketwatch.com/story/trumps-kleptocracy-could-be-turning-the-us-into-a-banana-republic-2017-05-03">contempt for the rule of law</a> that goes beyond anything Bush or Obama did. </p>
<p>The issue may be coming to a head with investigations into Russian interference in the 2016 election and possible obstruction of justice. As the nation has watched witnesses appear before congressional committees and read Trump’s tweets about Department of Justice officials, the key question to ask now is whether Trump <a href="http://talkingpointsmemo.com/edblog/a-very-very-dangerous-situation">will refuse</a> to let any investigation continue. If he does so successfully, Trump will effectively place himself <a href="https://lawfareblog.com/disabled-executive-special-counsel-investigation-and-presidential-immunities">beyond the reach of the law</a>.</p>
<h2>The rule of law</h2>
<p>The various ongoing investigations are all, in theory, governed by legal rules. <a href="https://www.documentcloud.org/documents/3726385-Order-3915-2017-Special-Counsel.html#document/p1">Special Counsel Robert Mueller’s task</a> is to speak to witnesses, review documents, gather evidence and decide whether there is any basis for prosecution under federal law. Congressional committees, meanwhile, hear from witnesses who testify under penalty of perjury if they lie under oath. </p>
<p>But such legal rules are not self-enforcing. When the rules are violated or flouted, someone has to act in order to give them force and meaning.</p>
<p>Attorney General Jeff Sessions’ recent testimony before the Senate Intelligence Committee is a case in point. Sessions refused to answer a number of questions about communications he’d had with the president. By itself, that is not extraordinary. If the communications were protected by executive privilege or involved classified information involving national security matters, there may have been a legitimate basis for Sessions to decline to answer senators’ questions. After all, the Supreme Court has recognized that <a href="http://markrozell.gmu.edu/wp-content/uploads/2014/05/Presidents_Executive_Privilege_Rozell_and_Sollenberger.pdf">the Constitution implicitly allows</a> the president to invoke executive privilege in some circumstances in order to protect the confidentiality of discussions with close advisers in the executive branch. </p>
<p>But Sessions, the top lawyer for the U.S. government, <a href="http://www.salon.com/2017/06/14/trump-sessions-and-the-executive-privilege-paradox-did-the-president-leave-his-most-loyal-follower-out-to-dry/">did not point to any legal grounds</a> for his refusal to respond. He simply said he <a href="http://www.salon.com/2017/06/14/trump-sessions-and-the-executive-privilege-paradox-did-the-president-leave-his-most-loyal-follower-out-to-dry/">could not speak about private conversations</a> he’d had with the president, and that he was <a href="http://www.businessinsider.com/what-is-executive-privilege-jeff-sessions-testimony-2017-6">protecting Trump’s ability to claim executive privilege</a>, if he later decided to do so.</p>
<p>Sessions was not the first. A week earlier, <a href="https://www.washingtonpost.com/blogs/right-turn/wp/2017/06/07/outrageous-contempt-of-congress/?utm_term=.c4864e548194">Director of National Intelligence Dan Coats similarly declined</a> to answer questions involving conversations he’d had with the president. Like Sessions, Coats did not invoke privilege, conceding that he <a href="https://www.usnews.com/news/national-news/articles/2017-06-07/lawmakers-challenge-officials-refusal-to-talk-trump-comey">wasn’t sure there was any legal basis</a> he could rely on.</p>
<p>As <a href="http://www.businessinsider.com/what-is-executive-privilege-jeff-sessions-testimony-2017-6">Sen. Martin Heinrich noted</a> during the hearing, that’s not the way executive privilege is supposed to work. If the administration wants to invoke the privilege, it must do so expressly. In that case, the matter would be worked out either in <a href="http://www.libertylawsite.org/2012/07/12/the-constitution-and-executive-privilege/">negotiations between the executive and legislative branches</a> or (less frequently) through review by the federal courts. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Richard Nixon points to the transcripts of the White House tapes.</span>
<span class="attribution"><span class="source">AP Photo</span></span>
</figcaption>
</figure>
<p>The most famous example of a court weighing in on executive privilege was the <a href="https://www.law.cornell.edu/supremecourt/text/418/683">Supreme Court’s 1974 decision in U.S. v. Nixon</a>. President Richard Nixon’s administration refused to hand over Oval Office tapes, claiming recorded conversations were protected by executive privilege, as defined by the president. The court rejected this view, observing that constitutional separation of powers depends on checks and balances that prevent any one branch from self-policing. The court found, in this case, the need for checks on power outweighed the executive branch’s interest in keeping discussions confidential. With the <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/16/the-missing-18-12-minutes-presidential-destruction-of-incriminating-evidence/?utm_term=.98bae4cd1030">specter of impeachment looming over him</a>, Nixon was forced to hand over the tapes. He resigned from office a few weeks later.</p>
<p>At the close of Sessions’ testimony, Sen. Richard Burr <a href="http://www.politico.com/story/2017/06/13/full-text-jeff-session-trump-russia-testimony-239503">instructed Sessions</a> to “work with the White House to see if there are any areas of questions that they feel comfortable with you answering…” That’s not good enough: If the legislative branch is to enforce the rule of law, witnesses must be compelled to answer legitimate questions under oath. </p>
<h2>Will Congress act?</h2>
<p>Special Counsel Mueller may be investigating the president to determine whether his actions amount to <a href="https://theconversation.com/did-sessions-and-trump-conspire-to-obstruct-justice-79388">an obstruction of justice</a>. Trump has already fired former FBI Director James Comey, and <a href="https://www.lawfareblog.com/if-trump-fires-mueller-or-orders-his-firing">there is speculation</a> that he might also fire Special Counsel Mueller in an effort to bring the investigation to a close. Sen. Ron Wyden has warned that, if Trump fires Mueller, it would be an <a href="https://twitter.com/DavidWright_CNN/status/876813652183187456">attack on the rule of law</a> itself. The onus would fall squarely on Congress to <a href="https://newrepublic.com/article/143293/trump-fires-robert-mueller-impeached">either initiate impeachment proceedings</a> or else acquiesce in a presidential power grab.</p>
<p>As Sen. Heinrich noted, when witnesses refuse to answer questions but fail to provide any sufficient legal reason for doing so, they are <a href="http://www.businessinsider.com/what-is-executive-privilege-jeff-sessions-testimony-2017-6">obstructing investigation</a> – preventing Congress from carrying out its inquiry. If other senators agreed, they <a href="https://www.vox.com/2017/6/14/15796078/jeff-sessions-testimony-russia-donald-trump-comey-fbi">could vote to cite the witness(es) for contempt</a>, which could lead to criminal prosecution.</p>
<p>Congress could also threaten to hold up Trump’s nominations to key positions such as federal court judges, or refuse to move on the administration’s legislative priorities like tax cuts for high earners (it <a href="http://markrozell.gmu.edu/wp-content/uploads/2014/05/Presidents_Executive_Privilege_Rozell_and_Sollenberger.pdf">took some similar actions</a> in response to Nixon). Congress could even begin impeachment proceedings if it decided presidential misconduct rose to the constitutional level of “high crimes and misdemeanors” – for instance, if Mueller’s investigation concluded that there is evidence to support this conclusion.</p>
<p>Of course, since Republicans are members of the same party as the president, none of this is likely – yet. But if Trump administration officials continue to make investigation difficult, and if Trump escalates an already tense situation by continuing to question Mueller’s legitimacy or even by firing the special counsel, Republicans may face <a href="http://talkingpointsmemo.com/edblog/a-very-very-dangerous-situation">a crucial test on behalf of American constitutional democracy</a>.</p><img src="https://counter.theconversation.com/content/79537/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chris Edelson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Laws that limit presidential power won’t enforce themselves – Congress must act.Chris Edelson, Assistant Professor of Government, American University School of Public AffairsLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/793882017-06-14T20:52:09Z2017-06-14T20:52:09ZDid Sessions and Trump conspire to obstruct justice?<figure><img src="https://images.theconversation.com/files/173891/original/file-20170614-26091-12526vy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Attorney General Jeff Sessions testifies before the Senate Intelligence Committee hearing.</span> <span class="attribution"><span class="source">AP Photo/Alex Brandon</span></span></figcaption></figure><p>Did Attorney General Jeff Sessions conspire with President Donald Trump to fabricate a false story about why former FBI Director James Comey was fired?</p>
<p>If the answer is yes, it could be grounds for criminal prosecution of either Sessions or Trump. And, it could be grounds for <a href="https://www.nytimes.com/2017/06/08/us/politics/obstruction-of-justice-trump-comey.html?mcubz=2">impeachment of the president</a>.</p>
<p>It is <a href="https://www.gpo.gov/fdsys/pkg/USCODE-2011-title18/html/USCODE-2011-title18-partI-chap73-sec1505.htm">a crime</a> to “corruptly” endeavor to <a href="https://www.lawfareblog.com/does-fbi-investigation-qualify-under-obstruction-justice-statutes-closer-look">impede a proceeding before a federal agency</a>. The law says, “corruptly means acting with an improper purpose… <a href="https://www.law.cornell.edu/uscode/text/18/1515">including making a false or misleading statement</a>.” </p>
<p>On May 9, President Trump fired Comey in a <a href="http://www.cnn.com/2017/05/09/politics/fbi-james-comey-fired-letter/">terse five-sentence letter</a>. It said he was acting on the recommendations of Sessions and Deputy Attorney General Rod Rosenstein. Trump attached <a href="http://www.cnn.com/2017/05/09/politics/fbi-james-comey-fired-letter/">a letter from Sessions and a memo by Rosenstein</a>. The only basis for dismissal stated in the Rosenstein memo, and adopted by Sessions, was that the FBI director had mishandled the <a href="https://theconversation.com/in-getting-new-clinton-emails-did-the-fbi-violate-the-constitution-67906">inquiry into Hillary Clinton’s use of a private email server</a>.</p>
<p>However, critics have suggested <a href="https://www.nytimes.com/2017/05/19/us/politics/trump-russia-comey.html">the real reason Comey was fired</a> was to impede the FBI’s investigation of connections between the Trump campaign and Russia. That would mean Trump’s dismissal letter was a “false” or at least a “misleading” statement, and thus a “corrupt” action in violation of the law.</p>
<p>The most compelling reasons to suspect this are found in the president’s own words later that week. In an interview, Trump told NBC’s Lester Holt: “<a href="https://www.nytimes.com/2017/05/11/us/politics/trump-comey-showboat-fbi.html">I was going to fire Comey… regardless of recommendation</a>… [W]hen I decided to just do it, I said to myself, I said, ‘You know, <a href="http://www.nbcnews.com/nightly-news/video/pres-trump-s-extended-exclusive-interview-with-lester-holt-at-the-white-house-941854787582">this Russia thing with Trump and Russia is a made-up story</a>.‘”</p>
<p>Then, when Sessions appeared <a href="https://www.nytimes.com/2017/06/13/us/politics/jeff-sessions-senate-trump.html">before the Senate Intelligence Committee</a>, he <a href="https://www.nytimes.com/2017/06/13/opinion/jeff-sessions-gives-a-master-class-in-dissembling.html">refused to answer key questions about the firing</a>, claiming he owed a duty of confidentiality to the president. </p>
<p>As a <a href="http://clarkcunningham.org/Cunningham-LegalEthics.html">scholar of legal ethics</a> and the director of a national <a href="http://www.niftep.org/">institute on teaching ethics and professionalism</a>, I found Sessions’ evasion at the hearing about his May 9 letter to Trump suggests further evidence of a “corrupt purpose” for two reasons:</p>
<h2>1. Conflict of interest</h2>
<p>Sessions <a href="http://www.politico.com/blogs/2016-gop-primary-live-updates-and-results/2016/03/donald-trump-jeff-sessions-chairman-of-national-security-committee-220220">chaired the National Security Advisory Committee</a> for the Trump campaign. He thus had an ethical obligation to consider the possibility that he was or could become a subject of the FBI’s investigation.</p>
<p>On March 2, the attorney general, <a href="https://www.nytimes.com/2017/03/02/us/politics/jeff-sessions-russia-trump-investigation-democrats.html">under considerable outside pressure</a>, announced he would <a href="https://www.justice.gov/opa/pr/attorney-general-sessions-statement-recusal">recuse himself</a> “from any existing or future investigations of any matters related in any way to the campaigns for President.” However, Sessions incorrectly told the Senate Intelligence Committee that he had no further ethical obligation. He went so far as to say his obligation to recuse himself did not “<a href="https://apps.npr.org/documents/document.html?id=3863949-Attorney-General-Jeff-Sessions-Opening-Statement">interfere with my ability to oversee… the FBI</a>.” </p>
<p>The attorney general is the country’s top lawyer. According to mandatory ethical rules applicable throughout the country, lawyers are not supposed to provide advice if they have a <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_7_conflict_of_interest_current_clients.html">conflicting personal interest</a>. The attorney general’s willingness to ignore his ethical obligations by advising that Comey be fired raises serious questions about whether he had a corrupt purpose in writing the letter used to fire Comey.</p>
<h2>2. An ongoing investigation</h2>
<p>Remarkably, neither Sessions nor Deputy Attorney General Rod Rosenstein supported their recommendation to dismiss Comey with any findings from Justice Department officials who usually investigate allegations of misconduct. The <a href="https://theconversation.com/the-fbi-with-great-power-comes-great-scandal-77606">only other time</a> an FBI director was outright fired was <a href="http://www.presidency.ucsb.edu/ws/?pid=46868">after a seven-month review</a> of a <a href="http://www.nytimes.com/1993/01/22/opinion/time-s-up-for-william-sessions.html?mcubz=2">161-page report</a> by the Justice Department’s <a href="https://www.justice.gov/opr">Office of Professional Responsibility</a>. </p>
<p>Neither Sessions nor Rosenstein acknowledged that Comey’s handling of the Clinton email matter <a href="https://theconversation.com/comeys-firing-may-end-other-investigations-into-2016-election-77532">was already being reviewed</a> by the Office of the Inspector General.</p>
<p>Of course, Sessions should not have offered the president any advice about firing Comey. But if competent advice were to be given, it surely should have addressed whether to defer the decision until the inspector general completed his work. Neither Sessions nor Rosenstein has yet explained why they omitted reference to the inspector general’s investigation, a failure that raises further doubts about the credibility of the memos they wrote for the president.</p><img src="https://counter.theconversation.com/content/79388/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Did the attorney general help create a false story on why Comey was fired? Sessions’ testimony to Congress provides no answers.Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/719732017-02-01T02:45:40Z2017-02-01T02:45:40ZDonald Trump’s tweets are now presidential records<p>By many accounts, Donald Trump’s <a href="https://theconversation.com/donald-trump-tweeted-himself-into-the-white-house-68561">bold use of Twitter</a> helped him get the attention and votes necessary to win a presidential race few initially thought he could. Given Trump’s affinity for the social media platform, it was unsurprising that tweets began streaming from his @realDonaldTrump account before noon on Inauguration Day. </p>
<p>Trump’s first tweets as president included snippets of his inauguration speech, simple thank yous to supporters and a short clip of the Freedom Ball dance he shared with his wife. Within 24 hours, however, the new president stumbled up against complicated federal law when he (or one of his staff) tweeted, then deleted, that Trump was “honered” to serve as president.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/155047/original/image-20170131-3251-kivtwe.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/155047/original/image-20170131-3251-kivtwe.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/155047/original/image-20170131-3251-kivtwe.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=433&fit=crop&dpr=1 600w, https://images.theconversation.com/files/155047/original/image-20170131-3251-kivtwe.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=433&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/155047/original/image-20170131-3251-kivtwe.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=433&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/155047/original/image-20170131-3251-kivtwe.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=544&fit=crop&dpr=1 754w, https://images.theconversation.com/files/155047/original/image-20170131-3251-kivtwe.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=544&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/155047/original/image-20170131-3251-kivtwe.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=544&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Screenshot of @realDonaldTrump’s tweet that was subsequently deleted.</span>
</figcaption>
</figure>
<p>Shortly afterward, a second tweet was posted that corrected the misspelling, though it, too, was soon deleted.</p>
<p>Many Twitter users tweak their tweets every day with little to no fanfare. When the president of the United States does it, however, there can be legal consequences. There are two important questions to answer about Trump’s tweets: Are they official presidential records under the law? And, are deletions or alterations of those tweets legal?</p>
<p>As a scholar who has researched <a href="https://theconversation.com/donald-trump-tweeted-himself-into-the-white-house-68561">Twitter’s impact on the 2016 presidential election</a>, I believe the answer to the first question must be yes. But even if tweets are part of the official presidential record, meaning deletions are probably not allowed under current law, there may not be much anyone can do to stop Trump from taking down tweets.</p>
<h2>Presidents can’t just clean house</h2>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/154584/original/image-20170127-30424-1pa9q4x.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/154584/original/image-20170127-30424-1pa9q4x.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=821&fit=crop&dpr=1 600w, https://images.theconversation.com/files/154584/original/image-20170127-30424-1pa9q4x.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=821&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/154584/original/image-20170127-30424-1pa9q4x.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=821&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/154584/original/image-20170127-30424-1pa9q4x.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1031&fit=crop&dpr=1 754w, https://images.theconversation.com/files/154584/original/image-20170127-30424-1pa9q4x.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1031&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/154584/original/image-20170127-30424-1pa9q4x.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1031&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">In the last months of his life, President Garfield famously destroyed many personal and political documents.</span>
<span class="attribution"><span class="source">Library of Congress Prints and Photographs Division</span></span>
</figcaption>
</figure>
<p>In the United States, the law gives people a broad right <a href="http://www.yalelawjournal.org/article/the-right-to-destroy">to destroy things they own</a>. If a private citizen wants to throw away old clothing or shred documents, he generally has the right to do so. This was also <a href="http://openjurist.org/978/f2d/1269/nixon-v-united-states">historically true for many American presidents</a>, who often destroyed diaries, letters and other records. In most cases, presidents who intentionally destroyed their papers did so to <a href="https://books.google.com/books?id=ZvwXKFcL-74C&pg=PA130&lpg=PA130&dq=why+presidents+destroyed+presidential+papers+privACY&source=bl&ots=I5F4KrRIYt&sig=-6-IPgvq53scC2s03vo8iM0oiDs&hl=en&sa=X&ved=0ahUKEwi56_mP2urRAhVn4IMKHQIJCpYQ6AEIGjAA#v=onepage&q=why%20presidents%20destroyed%20presidential%20papers%20privACY&f=false">protect both their own privacy</a> and that of their professional acquaintances. </p>
<p>This changed, however, <a href="http://escholarship.org/uc/item/84f7437p#page-1">after Richard Nixon’s presidency</a>. Congress created the <a href="https://www.archives.gov/presidential-libraries/laws/1978-act.html">Presidential Records Act of 1978</a> out of concern that former president Nixon would destroy the tapes that led to his resignation.</p>
<p>The PRA sets <a href="https://www.archives.gov/about/laws/presidential-records.html">strict rules</a> for presidential records created during a president’s term. They include material related to “constitutional, statutory, or other official or ceremonial duties of the President.” This <a href="https://fas.org/sgp/crs/secrecy/R40238.pdf">includes records</a> created on electronic platforms like email, Facebook, Twitter and YouTube. There is a <a href="http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2917&context=clr">narrow exception</a> that things like diaries, journals or other personal notes don’t need to be opened for review.</p>
<p>Under the law, the federal government must maintain ownership and control of all presidential records, including records created by the president’s staff. Once a president leaves office, all presidential records must be transferred to the <a href="https://www.archives.gov/about/info/whats-an-archivist.html">archivist of the United States</a>, who makes them available to the public over time.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/154831/original/image-20170130-7649-xto9p9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/154831/original/image-20170130-7649-xto9p9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/154831/original/image-20170130-7649-xto9p9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/154831/original/image-20170130-7649-xto9p9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/154831/original/image-20170130-7649-xto9p9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/154831/original/image-20170130-7649-xto9p9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/154831/original/image-20170130-7649-xto9p9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/154831/original/image-20170130-7649-xto9p9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The National Archives is charged with maintaining the presidential records.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/skippy/450215038">Scott</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>Tweets not so fleeting</h2>
<p>Trump has <a href="http://insider.foxnews.com/2017/01/16/trump-continue-using-personal-twitter-account-realdonaldtrump-president-not-potus">continued to use his @realDonaldTrump account</a> to speak directly “to the people” about issues of national and international importance. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"820785990746963969"}"></div></p>
<p>A U.S. National Archives spokesperson has said that <a href="http://www.nytimes.com/aponline/2017/01/23/us/politics/ap-us-trump-tweets.html?_r=0">posted tweets are considered presidential records</a>. The National Archives has since requested that the White House <a href="https://www.archives.gov/files/press/press-releases/aotus-to-sens-mccaskill-carper.pdf">save deleted or altered tweets</a>, but has not stated a position on whether they are definitely presidential records. I believe the Presidential Records Act should apply, for several reasons. </p>
<p>The PRA does not allow the president to get rid of any presidential records without the written permission of the archivist. And presidential records that have “administrative, historical, informational, or evidentiary value,” cannot be destroyed at all.</p>
<p>The PRA has been <a href="http://dx.doi.org/10.17723/aarc.66.1.8v8063806411716t">unpopular with presidents</a> since its enactment. There is a delicate balance between the <a href="http://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1072&context=cl_pubs">public’s interest</a> in preservation of and access to presidential records and the president’s need for autonomy during his or her term, without needing to worry about the public’s eventual judgment once out of office. Presidents have often <a href="http://www.jstor.org/stable/1229597">used claims of executive privilege</a> to withhold such records from the public, though the archivist would still maintain those with value. Months after 9/11, for example, President George W. Bush issued an executive order that allowed a current or former president to <a href="https://poseidon01.ssrn.com/delivery.php?ID=281020070003092001099006087023114024050069081053008091070113118125006097085107107031021010033037006104035122119115118002086093045011032005017027025108003098029102026037014034078014065090112014025086064000100099028015023031064010118071106104031090081001&EXT=pdf">block public access to presidential records</a> created during his administration. The order also expanded executive privilege, which allows a president and other high-level executive officers to keep information from the public. This was criticized by many as <a href="http://articles.chicagotribune.com/2001-12-10/news/0112100170_1_presidential-records-act-president-bush-presidential-papers">counter to a free democracy</a> built on the public’s access to information.</p>
<h2>For your eyes only?</h2>
<p>Attempts to keep presidential records secret have typically revolved around whether the public should have access to records they have not previously seen. </p>
<p>Because tweets are by their nature public, the typical objections around executive privilege seemingly wouldn’t apply here. Millions of people can see a tweet instantly. Users may also retweet original messages, which can multiply their reach. In addition, Google currently displays <a href="http://archivaria.ca/index.php/archivaria/article/view/13298/14609">Twitter content prominently in search engine rankings</a>, especially tweets created by users with large followings. At the end of January 2017, @realDonaldTrump had almost 23 million followers, adding <a href="http://www.thetimes.co.uk/article/donald-trump-interview-brexit-britain-trade-deal-europe-queen-5m0bc2tns">incentive for Trump to keep using the account</a>. (By February 2018, his account had almost 48 million followers.) In the days since the inauguration, the official @POTUS account mostly consists of retweets of @realDonaldTrump.</p>
<p>Tweets are part of the official presidential record. So if Trump’s tweets are deleted or altered, the originals should also be archived. The White House has <a href="https://www.archives.gov/files/press/press-releases/aotus-to-sens-mccaskill-carper.pdf">indicated that they are archiving tweets</a>, but hasn’t said how.</p>
<p>Some sites have begun to <a href="https://projects.propublica.org/politwoops/user/realDonaldTrump">independently archive</a> Trump’s deleted tweets. Among those deleted since the November election are tweets stating that Mexico will reimburse Americans for the “Great Wall” (deleted after 51 seconds), China had stolen a United States Navy research drone (deleted after one hour), and campaigning under an Electoral College system is more difficult than under a majority vote system (deleted after 13 seconds). Tweets like these could cause diplomatic ripple effects. In fact, tweets about Mexico and China have indeed <a href="http://www.cnn.com/2017/01/27/politics/mexico-foreign-minister-trump-comments/">provoked responses</a> from both countries. </p>
<p>If a tweet is the catalyst for a lost ally, new policy or other reaction, American history deserves to have a record of it.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/154586/original/image-20170127-30413-v3bsxm.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/154586/original/image-20170127-30413-v3bsxm.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=437&fit=crop&dpr=1 600w, https://images.theconversation.com/files/154586/original/image-20170127-30413-v3bsxm.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=437&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/154586/original/image-20170127-30413-v3bsxm.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=437&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/154586/original/image-20170127-30413-v3bsxm.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=549&fit=crop&dpr=1 754w, https://images.theconversation.com/files/154586/original/image-20170127-30413-v3bsxm.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=549&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/154586/original/image-20170127-30413-v3bsxm.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=549&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The official @POTUS Twitter account frequently retweets @realDonaldTrump.</span>
</figcaption>
</figure>
<h2>Modernizing the law to keep up with technology</h2>
<p>The <a href="https://www.archives.gov/press/press-releases/2015/nr15-23.html">Presidential and Federal Records Act Amendments of 2014</a> may be where Trump runs into trouble. The law, passed to modernize the PRA with respect to electronic records, provides that the president should not use an unofficial “electronic messaging account” for presidential records unless he or she copies or forwards a complete copy to an official account. While there is no specific language regarding social media, past presidents <a href="http://www.nydailynews.com/news/politics/trump-deleted-tweets-violate-presidential-records-act-article-1.2952416">set up auto-archiving</a> so that deleted tweets were also saved. It is unclear whether the Trump administration has done the same. </p>
<p>Courts can review whether any given piece of information should be categorized as a presidential record or not. But, the president <a href="http://www.allcourtdata.com/law/case/citizens-for-responsibility-and-ethics-v-cheney/cw0A5sbC?page=12">has control</a> over “creation, management, and disposal” decisions after that initial categorization, assuming he or she has permission of the archivist. This cannot be reviewed by a court. And the PRA <a href="http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1183&context=aulr">does not give</a> the archivist or Congress veto power over a president’s record-keeping decisions. In this way, the law creates a system that cannot be checked once the president makes a decision to create, manage or delete a given record. </p>
<p>In the instance of Trump’s deleted and altered tweets, it makes sense to require they be archived and preserved. But if Trump decides to dispose of them without taking such steps, there doesn’t seem to be a federal law to stop him. To create a full digital picture of Trump’s presidency, we may have to rely on the screenshots from private citizens or others.</p>
<p><em>This is an updated version of an article originally published on Jan. 31, 2017.</em></p><img src="https://counter.theconversation.com/content/71973/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shontavia Johnson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The law says official presidential records must be preserved. How do tweets figure in – particularly when they’re altered or deleted?Shontavia Johnson, Associate Vice President for Academic Partnerships and Innovation, Clemson UniversityLicensed as Creative Commons – attribution, no derivatives.