Season 1, Episode 1 | Above the law? Executive Privilege and Presidential Immunity

The American presidency is likely the key contribution of the American Founding. And it's in response to democracy's inability to handle crisis. This is the dark logic of the American presidency at its heart. 

You want to grant all necessary powers within the tension between the rule of law and the energetic executive, which is inherent in our system.

And the way you do this is to 1) Grant powers; and 2) Grant insulation.

Transcript

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Welcome to This Constitution. I'm Savannah Eccles Johnston. I'm Matthew Brogdon. The American presidency is arguably the key contribution of the American founding, and it's in response to crisis, namely democracy's inability to handle crisis. And this is the logic of the American presidency. This is the dark logic at its heart. You want the institution to be able to embody those characteristics that allow you to handle crisis. Think decision, speed. Dispatch qualities which, by the way, you would associate with a dictator while not allowing the institution to slip into dictatorship. So in other words, you want to grant all necessary powers while also limiting those powers. This creates a tension between the rule of law and energetic executive, and it's just inherent in our system. And the way you do this create this kind of energetic executive is 1 grant powers and two grant. Insulation. And that's what we're going to talk about today, in particular immunity and privilege. So first, we're going to define what is presidential immunity and what is executive privilege. And then Matthew is going to help us understand why we shouldn't be so panicked about the concepts of executive privilege and immunity. So first, let's talk about executive privilege. So defining executive privilege is very simple. It's just the president's power to withhold information from Congress. From the courts and from you, what is the logic for this? Well, I think it's helpful to talk about examples. Washington's presidency gives us the first example of the president claiming A privilege to withhold information from Congress. The Washington administration had negotiated a very unpopular treaty. I mean, you're familiar with this, the Jay Treaty. It's not popular in the country in particular. The opposition in Congress, Jeffersonian Republicans in Congress, are very unhappy with it, and they're quite interested in embarrassing the administration over it. So what they do is they ask Washington to send them all the communication between Washington and his emissary to Great Britain, who happened to be John Jay, who of course is one of the authors of the Federalist Papers and the first Chief Justice. Washington has sent him to negotiate this treaty. They want to see. All of the communications that passed between Washington and Jay during these negotiations. And you can imagine why. If you're the political opposition, you're thinking there's got to be something in here we can use for, you know, it's essentially opposition research. Washington refuses, and he doesn't just refuse. He sends a message to Congress, to the House of Representatives, informing them that he won't be sending them the communications and telling them that. If they want to see them, they've got to find some sort of constitutional responsibility that they have to see the information. And Washington can only find one that he thinks is actually a legitimate reason, and that's impeachment. So in essence, he's just daring them to impeach him. But I think the question you're asking is why? Why is it so important he keep it secret in the 1st place? And that really has to do with diplomacy. So why would you need to keep the details of diplomatic relationships and negotiations secret? I mean, you can imagine foreign countries with whom you're trying to cut a deal, to quote Donald Trump, don't necessarily want every word said in the room spilled to the public. Your essential objective whenever you're engaged in diplomacy is to try to get the other country to see your side and to make concessions to your interests that may not be popular with their own public. So, you know, spilling the tea and showing everything that happened in the diplomatic process might actually not be in anybody's interest. OK, so it's easy to see why you would need to invoke executive privilege on negotiating a treaty with the much hated British in the 1790s. But there are lots of instances of executive privilege throughout American history that haven't been so clear-cut national security diplomacy. Stuff. It seemed that it's been just as common for presidents to attempt to withhold information that would simply embarrass them or damage their electoral chances as it is to actually harm national security. So what's the line? What counts, or for what purposes should a president be allowed to invoke executive privilege? Well, the maximal position has been any communication between the president and a subordinate in the executive branch. And that's actually not just for the president's interest. I mean, we're talking in terms of. Diplomacy and the national interest and national security. But some of the reasons for it aren't quite that grand. There's a quite simple reason for it that's grounded not in the president, but actually in his subordinates, because the president's relying on advice from people who work in the executive branch, and he's relying on frank advice. And the fact is, if you're some executive branch official, some young lawyer working in the Office of Legal Counsel or an Undersecretary in Defense, or even a Cabinet secretary, and the president asked your advice and guidance on some sensitive matter, you might hesitate to say exactly what you think, to be frank with your advice, if you think this is going to wind up in the newspaper later. I mean, you have a political career in front of you. You have other aspirations. I mean, the president's arrived at the top. There's, aside from John Quincy Adams going back to the Senate or Taft going to the Supreme Court, there's nowhere to go. But the president's subordinates have political careers in front of them. You might not actually be able to ask for frank advice if you don't have some measure of confidentiality. Right. So you've just mentioned two areas where you have presumptive executive privilege, and it's in national security and it's in, say, agenda setting or kind of policy creation. And both of those are attached to the presidency as leader in a constitutional sense. And this is coming from political scientist David Crockett. But there's a second component to the presidency, which is simply to administer the law. And there the president isn't necessarily a leader. He's more following. The instructions of Congress in administering the law. So is there a presumption for executive privilege in those areas? Theoretically, you could draw a line and say, well, there should be privilege when the information divulging the information could damage the administration, and you shouldn't have privilege whenever it's harmless. The problem is, to know which is which, you have to be looking at it from the perspective of future circumstances. And you have to know what's being said. So you have to violate privilege in order to figure out whether the information ought to be privileged. That very practical problem leads to the conclusion that you just afford privilege to all internal executive branch communications. There's also this basic element of the Republican executive. The Constitution says the executive power should be vested in a president, the whole executive power, whatever it is. So anybody who's exercising executive power. Is exercising on the president's behalf. At least that's the classic theory of through the unitary executive. If you follow that reasoning, the president's responsible for whatever the subordinates do. Knowing what the president communicated to those subordinates may be less important than the fact that he is ultimately responsible. So if someone in the executive branch is misusing their office or making bad decisions, it's the president gets held accountable for that politically at the next election or the president's political party. So in some ways, privilege assumes we're going to judge the president based on his actions. The reasoning behind those actions is less important than whether the correct thing was done. So let's go to real life complicated situation 2003. George Bush really tries to push executive privilege to its limits on one side. He is trying to prevent congressional investigations, oversight a congressionally mandated action from Congress into the disastrous response to Hurricane Katrina. And on the other side, he is claiming executive privilege on all executive department communications related to wiretapping without warrants. These two things seem very different. Does the president actually have? A right to secrecy in the first case, though it's clear he does in the second. Clarify the line you want to draw between these two. So why is one of these cases so different from the other? Because one doesn't have anything to do with national security, and it has everything to do with Congress's ability to conduct oversight on the presidency, to push back against executive overreach. They have to have some power over the executive, and in order to conduct oversight, you need to know what orders were given, what communications. Were said, yeah, this was the House of Representatives argument for wanting the communications from Washington too. And Washington said that wasn't enough. So his standard had been there are cases where the president is obligated to divulge information, including to Congress and to the courts. But the judge of when that's appropriate or not, according to Washington, is the president. Because no one else is situated to actually judge whether the information will harm the the effective functioning of the executive branch or national security. And Washington pointing to impeachment was exactly, well, was sort of critical in this instance because that was the political backstop. If you think you can't trust the president to make this judgment, then you should impeach the president. I mean, it's treating impeachment like a nuclear option. You have to have confidence in the executive to do these things, to do them in secrecy in many cases, to handle the public affairs and confidence. And if at some point that trust erodes, you just have to get rid of him. But again, the Jay Treaty is national security. That's what we're talking about. We're talking about negotiations with another country. Is that the same thing as Hurricane Katrina? So let's let's go back even further. 1970s Nixon is being Nixon. And he is saying, I'm claiming executive privilege over all communications, including the tapes in the Oval Office. Now, what he's really trying to do is obstruct an investigation, a criminal investigation against several members of his administration. And this is U.S. V Nixon, and the Supreme Court responds and says no. That's crazy. In weighing these two things, a president's presumption to secrecy does not general presumption does not outweigh a an ongoing criminal investigation into the conduct of individuals actually in the executive branch. So there are situations where privilege simply doesn't apply or doesn't outweigh the need for the dispersal of information. Yeah, we usually think of US versus Nixon as a case where executive privilege gets defeated. The president's claim to privilege loses. And that's true for Nixon. It's a loss for Nixon. But arguably, US versus Nixon is a huge win for executive privilege, for the presidency in general, because the court, while they say Nixon has to divulge these recordings of the Oval Office. And by the way. Why is Nixon recording everything that happens in the Oval Office? This is just weird. Well, LBJ did this first, and then Nixon had that system removed and then put back in in case of of later investigations into Vietnam. Oh yeah, I've heard people say that it was actually because he wanted to be able to vindicate himself if he was ever accused of malfeasance with the war, which is a real irony. I mean, if that's the case, then you've got to make sure you don't do any actual criminal wrongdoing or malfeasance. So anyway. You got the recordings. The court says he's got to turn them over. But what's interesting is the conditions the court puts on it. The court actually says because executive privilege is presumptive and it's really important, and especially the communication between a president and cabinet members and subordinates in the Oval Office would normally be afforded this kind of privilege. The court actually requires that Nixon send the tapes to the district judge and the district judge is ordered. To examine the tapes in chambers, in private, and determine which segments of the tapes, which clips are essential to the criminal prosecution. Those were to be extracted, admitted into evidence. Everything else had to be packed back up and sent back to the White House and kept privileged. So it the most interesting thing about Nixon is just how careful the court is to respect executive privilege. Even while they're identifying exception to it. Yeah. And yet another example of the presidency getting consistently stronger over time. Executive privilege is, and correct me if I'm wrong on this, never spoken to by the Supreme Court until U.S. V Nixon. Is that right? That's the first time the Supreme Court says executive privilege exists constitutionally. It's the first case I'm aware of litigating it. Because it was always just worked out between the president and Congress and the president would sort of decide. I mean, Washington's system actually prevailed. Just it was a negotiation between the executive branch and other people. OK, well, then this leads us in to the big question. How should we settle contentions over executive privilege? Historically, it had been settled between the branches politically. U.S. V Nixon, it's settled by the Supreme Court. And again, we're having to ask this question. Because of January 6th and Trump's actions on January 6th and the fact that Congress wants all communications from within the executive department on and before that day so that they can conduct this investigation. And Trump, of course, is saying no, that is privileged. How should this situation be solved? Should it be solved in the courts? Well, in cases like Nixon and in cases like Trump's, I mean, if we're dealing with a criminal prosecution, they have to be settled in the courts. It's a judicial proceeding that's demanding the record. So in this case, the negotiation's not between the president and Congress, it's between the president and the the court that's undertaking the proceeding. In some ways, this is unavoidably legal in at least some situations. I mean, if the if the dispute arises out of a judicial proceeding, it's going to be. Judicially managed. Now, it ultimately might be the case that the president can, you know, stonewall. Of course, it's instructive, too, that because we're dealing with a former president, what Trump's really relying on is whether the current president will respect executive privilege of a previous president. And generally speaking, current presidents are quite protective of privilege for previous presidents. And you can imagine why they're going to want a lot of information kept privileged when they leave office. I mean, imagine every time we sort of switch parties, if you thought, well, I can embarrass the other team by just, you know, digging up as much privileged, embarrassing information as I can from the last presidency and making it public. That's kind of a tit for tat that presidents want to stay very far away from. So administrations have largely respected this principle, though I have no doubt if the if the judiciary actually subpoenaed the information and the court upheld it, I mean the Biden administration. Turn it over, I'm sure. Well, to clarify, from what I understand, Biden has already publicly declined to claim executive privilege on all of these documents from January 6th from the Trump administration. Has he rescinded executive privilege on them or it's just he's agreed? I'm not going to fight for it. Or is he actually said I'm just not going to treat them as privileged. That is what I understood. But maybe I'm wrong on this, but that, well, that's quite exceptional in a way. I mean, I I think if that's the case, then that that's a pretty exceptional shift. Now we should probably figure out what is the history of immunity, judicially speaking, and walk through that history very briefly. Let's move in to Trump versus US, which involves both privilege. And immunity, that second concept that we said we would get to. Now, it's more difficult to speak about immunity because there's just not as much of A history about immunity, especially not something quite as serious as the current case, because we never expected a president to be charged criminally in the way he has been. Interesting factoid on this. I was looking through all of my old presidency books and you can find full chapters on executive privilege. It is almost mute. On immunity, that's how kind of out to sea we are on this concept, which is why I think Trump V US is such a landmark case and one we have to talk about. So first, let's talk about its immunity or let's talk about its privilege implications. And then let's jump into this murky concept of immunity. So the court says the majority of the court and the Chief Justice's opinion that presidents have. Complete immunity, and this is past presidents, presidents who are now out of office who were president, have complete immunity for official actions that are part of their core constitutional responsibility while they're in office and presumptive immunity for any other official actions. Now the privilege part comes in because the court says what happens if a president's accused of criminal misconduct? That's not official conduct, right? The president. Because it commits a crime of passion, you know, and murders somebody in the street. But he had communicated about this with a subordinate beforehand, right? So there's some privileged communication that could be evidence in a suit against the president. Another example, this would be a bribe, right? President takes a bribe to do something, but some of the evidence of the bribe and the motive and so forth is wrapped up in privileged communication between the president and subordinate. Normally wouldn't have access to it. The court says in that case, even though you could prosecute the president for that unofficial conduct, you couldn't have access to the privileged communication to enter into the evidentiary record. Now the majority's got a little bit of an out. It's not as extreme as it sounds because Chief Justice Roberts says, I think in a footnote, you know, if this was a bribe we were talking about. You know, the fact that the president took the public action that he was being bribed to make would be a matter of public record. You wouldn't necessarily need to go hunt around in privileged communications. But that's where privilege comes in. So that the court sort of adds a layer. There's not only immunity, but even if you're accused of doing something that's unofficial conduct, you can be prosecuted. You can't submit privileged communications as evidence, right? So your previous argument was that. USV Nixon was long-term a win for the presidency, though it was a loss for Nixon. And now Trump V US is an even bigger victory for the presidency, undoing even the limitations of USV Nixon. And what's interesting is I haven't seen any of this in the news. When people talk about Trump V US, it's all about immunity because again, that's so new. But from where I'm sitting, that feels much more scandalous. That a president has such a presumption of secrecy. It's one of the places where Barrett's concurrence, you know, she agrees with the outcome here. It's one of the problems that she has with the court's opinion because she says, I don't see any reason that this privilege would attach to communications about the acceptance of a bribe because she wants to apply the standard from U.S. versus Nixon, which was, well, sure, that's privileged communication. But the integrity of a criminal prosecution, the need to have discovery of evidence and have a complete evidentiary record and make sure that both the accused and the state have access to all the relevant evidence in the case is a weighty enough interest to overcome executive privilege, right. So she wants to continue to rely on that weighing system. Yeah. And it sounds like the Chief Justice has discarded it. I mean, this is the shocking thing. If that's right, then Robert's opinion. Kind of overturns U.S. versus Nixon in this respect, or at least limits it even further. Well, in some ways she's right. Immunity is this really kind of novel concept. There is something of a judicial history on the concept of immunity, but nothing is full-throated as you get in Trump V U.S. So quick overview on the development of immunity, please. There is a key precedent on this, but it doesn't involve criminal immunity. It involves Nixon again, Nixon versus Fitzgerald. It's nothing to do with Watergate. But Nixon was sued for something he had done while he was president, and it was part of his official conduct. And the court in Nixon versus Fitzgerald says you can't sue a president after they leave office for something they did as president as part of their official duties while they were in office. Because the court's reasoning is that would mean presidents would be civilly liable to lawsuit for any decision they made. That potentially disadvantaged or harmed or imposing costs on anyone. And imagine how many people that is. So the court said that would cripple executive energy if you were to allow people to go back and revisit all the official decision making of a president after they leave office and sue them for stuff that potentially imposed a cost or did an injury to somebody. Instead, you could go sue the government. I mean to be clear. You can sue the federal government for injuries you suffer as a result of government policy. So it's not like you have no no recourse. But the president personally that would cripple presidents if they were subject that sort of thing. So the court said absolute immunity from civil suit for official actions after you leave office. The court extends this principle because the Roberts court is basically saying if making people liable to civil lawsuit would cripple executive energy isn't. Criminal prosecution? Much more serious. I'd be far more afraid of criminal prosecution than of a lawsuit for my conduct. So if we're afraid that civil liability would cripple executive energy and subject presidents to too much scrutiny and personal liability after they leave office, surely that should extend to criminal liability as well. We have to give time to the dissent because they make a really. Good argument, which is simply this. Where is this in the Constitution? Where is immunity from criminal prosecution in the Constitution? And in fact, where is this in even The Federalist Papers? Hamilton doesn't even make this argument. He makes it very clear that the president is open to criminal prosecution. Yeah, I mean, Hamilton says in Federalist 69 that this is the difference between the British monarchy. And the executive proposed by the Constitution is that the the monarch's immune from any kind of responsibility for his actions, but that the president, when he leaves office, will be subject to prosecution. In fact, I mean, insofar as there's there's textual evidence, the impeachment provision seems to suggest that there's some kind of liability after leaving office, because when it talks about the impeachment of presidents. It says that impeachment should not extend further than, you know, removal from office and exclusion from further office holding. And then it actually says that it will not prevent prosecution or further consequences for the action after leaving office. So the the the impeachment provision seems to envision a sort of sequence. Where the president's impeached for misconduct. And then if that misconduct is criminal, which you don't have to be guilty of a crime to be impeached, that's a misnomer. But if you've been impeached for misconduct and that conduct is criminal, you can then stand trial for the conduct. In fact, this was the argument when when Clinton was being impeached, right? There was a whole argument about what what's the right sequence and when you have the star. Commission. You had independent counsels. One of the arguments against independent counsels has always been Congress has to act first. You don't need a prosecutor to go after the president. What you do if the president's engaged in misconduct is impeach and remove him from office. Then the next president actually uses the prosecutorial power to go after the previous president. That was the argument against independent counsels and special prosecutors during Nixon, Reagan, Clinton. If that's true, then that really calls into question the idea that there's complete immunity from criminal prosecution, right? And Hamilton is particularly useful here because he spends so much time, spills so much ink in The Federalist Papers explaining the need for an energetic executive, convincing people. We swear this isn't a kink. We swear this isn't a tyrant. Here's all the ways it's not. But you still need energy, and here's all the reasons why. And yet, not even Hamilton sees the need for immunity from criminal prosecution. And it's strange that in 2024, that idea is back on the table. And that is what makes the dissent's argument so powerful is where is this in founding era thought? Where is this in the Constitution? I mean, there's a little bit of a turning the tables here because, you know, the dissent is really employing the kind of historical resources and founding era sources and the text of the Constitution. In a way that would seem to be more in keeping with originalism, and the courts engaged in a lot more structural thinking. Now, it is often the case that we have to get constitutional principles out of constitutional structure. Much of separation of powers, which is demanded by the text to create separate institutions, has to be sort of elaborated on. To figure out how separation of powers works, you have to engage in some institutional logic to figure out how the machine works and ought to work. To make the decisions. But usually you wouldn't do that in a way that sets aside text, right? You could do it to fill in the gaps, but you wouldn't normally do it in a way that ignores existing text. And the dissent's complaint is the majority is using an institutional logic about the need for executive energy and immunity that's ignoring important pieces of the constitutional text, right? Well, two key points. One, a need for executive energy, which. Does not actually require this level of immunity. And two, it turns out Clarence Thomas is not a pure textualist. Also, I think it's a real apology for Barrett being in the middle, right? That's why she says we don't have to talk about immunity. That's not actually a constitutional concept. So let's talk about what is in the Constitution. She points out there are lots of things Congress could try to criminalize or do to a president that would violate the Constitution. And we should not allow the president to be prosecuted in those instances. We also shouldn't use that observation to then preclude the idea that Congress could find a criminal act that a president could undertake as part of official conduct. So what you're saying is we should listen to the women on the court, Justice Barrett at least. I think Barrett's got the best argument in the case personally, but it's a powerful argument. And I love the Hamilton versus Hamilton aspect to play in the case, the fact that the majority's relying on Hamilton's arguments about. Executive energy. And then Sotomayor has the rejoinder with, well, Hamilton says in the same breath, almost, that presidents are criminally subject to prosecution. I, by the way, think that there's a way to reconcile those two. And that's because Hamilton actually thinks that presidents will be willing to risk this because of the fame involved in it. They want honor, they want fame, they want a reputation. And that's enough to induce them to run the risk of. Doing energetic, active things as president that they might get in trouble for later, right. So we're back to this concept of how do you balance or how do you handle this deep tension in the American system between an energetic executive and the rule of law? How do you handle this? And I think the only institutional answers are through a wary American people who are actively watching the actions of a president and voting. And through in an empowered and an energetic Congress, I think that's key as well, who have powers to conduct oversight. And I think we disagree on just what powers of oversight they have. But they seem to play some important role here. And begrudgingly, also the Supreme Court plays some role in balancing this tension between the rule of law and an energetic executive.