Why you should care
Because a battle over executive privilege lies between the Mueller report and any impeachment proceeding against the president.
Based on OZY’s hit podcast The Thread, which delves into surprising connections in history, The Mueller Thread weaves together the strands linking the sprawling investigations around President Donald Trump. Read last week’s debut column on Attorney General nominee William Barr.
Poppycock. It’s a word you’re probably most accustomed to hearing from dismissive grandmothers or Victorian aristocrats. Like codswallop, balderdash or tommyrot, it has become synonymous with a breed of harmless nonsense. Coming from the mouth of Democratic Sen. Sam J. Ervin Jr., chairman of the Senate Watergate hearings, however, poppycock took on an entirely different connotation in April 1973: one of moral outrage and democratic urgency. “Divine right went out with the American Revolution and doesn’t belong to White House aides,” Ervin told the Senate committee and millions of Americans watching at home in his gentle but forceful North Carolina drawl. “That is not executive privilege. That is executive poppycock.”
Ervin was expressing his disdain for the White House’s reluctance to let President Richard Nixon’s aides testify publicly and under oath in the Senate. It was just the first scuffle in a war over executive privilege that would end at the doors of the U.S. Supreme Court and also end Nixon’s presidency. We’ve heard a lot this past week about the current president’s former lawyer Michael Cohen, scheduled to come before Congress in two weeks. Cohen’s testimony could shed some light on whether Donald Trump obstructed justice in the investigation of special counsel Robert Mueller, but the real fight — and the one that the White House is lawyering up to wage — is still to come, and it will focus on the line between privilege and poppycock. Executive privilege can be raised frivolously, but it is a powerful tool. And though it is a legal doctrine — one that may well reach the Supreme Court again — the battle over executive privilege, as Watergate illustrated, really boils down to politics, not the law.
Disputes over executive privilege buy time and room for political negotiation.
Executive privilege does not appear in the Constitution or in any statute, but it has been used by several White Houses to protect the substance of communications between a president and his aides from disclosure. Because presidents need candid advice, the argument goes, they must be able to deliberate freely when making decisions without worrying about having to reveal such deliberations. The case of U.S. v. Nixon was the first and only time the Supreme Court has considered the issue, but as law professor Andrew Coan documents in his new book Prosecuting the President, it was merely the culmination of months of wrangling among Nixon, his pursuers in Congress and the office of Watergate special prosecutor Leon Jaworski.
The White House had allowed Jaworski to listen to a handful of the secret recordings of the president’s Oval Office conversations but had balked when he asked for more. So Jaworski asked a federal court to issue a subpoena for the tapes. It was now a legal proceeding, but in reality, it had become a political football. Nixon and his lawyers needed political cover with the public and his congressional supporters; they needed to look reasonable and to make Jaworksi look unreasonable. “They had to throw Congress and the special prosecutor a bone,” Coan writes, “and it had to be a meaty one.”
That bone came in the form of a nationally televised address on April 29, 1974, in which Nixon, with two dozen gold-embossed binders stacked next to him (mere props), announced he would release edited transcripts of the tapes that would include anything relevant to Watergate, “the rough as well as the smooth.” Nixon informed Americans that he’d guarded the tapes because of the hallowed “constitutional doctrine of executive privilege,” but for the good of the country, he was willing to make an “unprecedented exception” to that privilege.
Nixon’s gambit shored up Republican support in Congress, but even the largely toothless transcripts, which Nixon had personally culled, showed a conniving, paranoid leader whose speech was punctuated with numerous “expletive deleted” notations. The hearing before the Supreme Court went even worse. Justice Lewis Powell interrupted Nixon lawyer James St. Clair’s argument at one point to ask, “What public interest is there in preserving secrecy with respect to a criminal conspiracy?” In a Rudy Giuliani-worthy bit of Catch-22 lawyering, St. Clair responded that “criminal conspiracy is criminal only after it’s proven to be criminal.” Nixon lost that argument in an 8-0 court decision, and, more important, lost congressional support in his own party. Remaining in office became untenable.
In issuing its ruling, though, the court offered only vague guidance on executive privilege, holding that the president’s “generalized interest in confidentiality” could not overcome “the specific need for evidence in a pending criminal trial.” The vagueness of this decision could empower White House lawyers to invoke the privilege broadly when it soon comes time for Trump aides to go before House investigators or for the attorney general to determine which portions, if any, of the Mueller report to make available to Congress and the public.
There’s a reason to believe a Supreme Court that was largely appointed by Republican presidents, including Trump, will treat these claims with the same skepticism as their forebears did Nixon’s. The president’s need for confidentiality would have to outweigh Congress and the public’s interest in learning about, in Justice Powell’s words, a potential “criminal conspiracy”; the privilege can also be waived on subjects the president has not made an effort to keep secret in his many public statements and tweets. It also would apply only to Trump’s deliberations after taking office — leaving the campaign and transition fair game.
But in the big picture, as with Watergate, even a loss for the president at the Supreme Court is more of a political than a legal setback. Disputes over executive privilege also buy time (they bought Nixon about a year) and room for political negotiation. And Trump, with a firmer grip on his base than Nixon, will have more room to negotiate. But that won’t stop the political imperative behind the privilege fight, and White House lawyers will need to throw Congress and the public meaty-enough bones along the way so they don’t look like purveyors of poppycock.