© AP/Patrick SemanskyFormer US President Donald Trump
The progressive crusade to bring down Donald Trump by any means necessary continues to damage the Office of the President and the Constitution's separation of powers. New York prosecutors succeeded in subpoenaing a sitting president — and thereby interfering with his ability to carry out his duties — all for the sake of indicting a single Trump Organization official for under-reporting taxes.
Now the Biden administration has inflicted even more damage on the Presidency by waiving Trump's constitutional right to confidential communications with his closest aides.On January 23, 2021, Senate Judiciary Committee Democrats sent a letter to the Department of Justice demanding production of documents concerning meetings and communications between Trump and high-ranking Justice Department officials regarding election fraud. House and the Senate committees subsequently followed up with subpoenas for a slew of top former Justice Department officials, such as Acting Attorney General Jeffrey Rosen, assistant attorney general Jeffrey Clark, and U.S. Attorneys in Georgia and New York.
In normal times, the Justice Department would immediately reject these demands. Article II of the Constitution specifies, after all, that the President "may require the Opinion" from his principal officers "upon any Subject relating to the Duties of their respective offices."Ever since President George Washington refused to share documents with the House about the Jay Treaty, the Executive Branch has asserted the need to keep confidential documents and information that reflect presidential decision-making and deliberation. In Nixon v. United States, the Supreme Court recognized that the President must enjoy an executive privilege in order to receive the full and frank advice of top officials in order to effectively discharge his constitutional duties.
More recently, the D.C. federal court has recognized that "history and legal precedent teach that documents from a former or an incumbent President are presumptively privileged." The Supreme Court has only recognized an exception when a criminal defendant's own constitutional right to information conflicts with the President's right to confidentiality. Then — and only then — has the Court sought to balance the two competing rights by intruding only as necessary on the claim of privilege.Congress's demands for documents and subpoenas for testimony are more far-reaching and much more destructive to the separation of powers. While Congress has a right to investigate the events leading to the terrible riot of January 6,
it does not have a right to override the constitutional prerogatives of an independent branch of government.If Congress has the right to demand presidential documents and discussions at will, it could just as easily force the Justices of the Supreme Court to reveal their deliberations about the electoral fraud cases brought after the November 3 elections, too.
Imagine the howls from Capitol Hill if the Trump Justice Department had issued subpoenas to Nancy Pelosi to obtain internal documents and communications between her and her top legislative advisors about threat assessments provided in the run-up to the January 6 joint meeting of Congress.
To make matters worse, the Biden administration has waived any claim of privilege enjoyed by Trump and his top advisors. The privilege belongs to the incumbent President, it asserted, with barely a nod to the threat to the internal deliberations of all future presidents, and with little heed to the Supreme Court's finding that the privilege extends to former as well as incumbent presidents.The Department's new position, which appears to be based on political animosity toward the former president, is a terrible (and in our view unconstitutional) idea. That privilege exists not for the personal benefit of a president as an individual but for the benefit of the Republic. As the Carter administration argued in a 1977 case dealing with President Nixon's presidential papers, "Unless [the President] can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends." The privilege must extend beyond a president's tenure lest all future Presidents find their top advisors unwilling to provide the full and candid advice necessary for effective policymaking.
DOJ's purported waiver is also a terrible idea for our nation's politics. Our country has regularly chosen Presidents of opposing political parties to follow each other. Joe Biden (D) followed Donald Trump (R), Barack Obama (D), George W. Bush (R), Bill Clinton (D), and George H.W. Bush (R).
Should the Department's politically-motivated waiver of privilege go unchallenged, we can expect to see tit-for-tat waivers every time a new administration from a different political party comes into office. Such political "gotcha" is hardly conducive to resolving our political divide, and will likely exacerbate it to the point of undermining our political institutions.The Department of Justice needs to withdraw its waiver of executive privilege, and if it does not, the former president needs to assert it himself and, if need be, litigate to protect the executive privilege not just for himself but for future presidents — the long-term good of the Republic demands no less.
Reader Comments
R.C.
HD, supra: Yoo is evil, uncompromised.
RC
Anything written by an enormous scumbag like John Yoo should at least have a comment disclaimer at the bottom pointing out that although Mr. Yoo assisted the Cheney Regime in ruining countless lives he DOES have a point.
SOTT just posted another article from Jon “The Virus Doesn’t Exist” Rappoport even though SOTT Editors claim anyone holding that opinion is effectively an idiot. I’m sure it’s too much to ask but it’s articles like the ones I’ve mentioned wherein a comment describing the SOTT position in contrast with the authors viewpoint would be helpful.
I do agree that they should have pointed out the devil incarnate that Yoo is/(be) . And, BTW, there's our proof that Fox long ago got coopted.
R.C.
RC
Personally I *like* reading things from all different points of view. Even more when knowledgeable commenters can add some depth and supporting information.
Getting upset about an article seems to imply that you're seeking an "echo chamber" or wish to have someone else "do the thinking for you." (And basically agree with RC in that "contrary" information is a good way to flex your mental abilities.)
Regarding the existence of the virus: Thought I read somewhere that denying its existence is illegal in France. Which, if true, presents the choice of "compelled speech" vs "not having a Sott site at all."
Either way: What difference does it make if you agree with the articles, the editors, the other commenters, etc? Just because they're "on your side" today doesn't mean they will be tomorrow. Anyone else remember tenc.com (The Emperor's New Clothes) and their 180 degree flip several years back?
Lord I can recall flip flops by AJ (about Israel) ; WRH (about Pentagon Flt. 77 on 9/11/2001, etc) but don't recall TENC, and I can recall quite a few positions by SOTT which I still disagree with, but TENC? Don't recall.
Info? Thanks.
RC
BTW, That was kind of over the top for JQ as best I can tell. He's an informed, open minded and good kid. We need many many more like him. I think he saw Yoo (which I missed, actually as I didn't notice that evil scum was a co author and JQ did) and that set the flames of an angry warrior type alight.
rc
Then one day all of that material disappeared and the site's content shifted completely.
My personal thought was that someone got a [possibly very lucrative] offer they couldn't refuse. Did several searches around that time to find out "why" but only remember finding one article/blog post talking about the fact that it happened, but not "why," and that the author was "afraid" to say anything more. Very weird.
No one is perfect. SOTT is pretty close to perfect. I consider their (perhaps not uniform?) opinion of Trump to be delusional and I believe (though I could be wrong) that it is that opinion which leads them to post articles written by people who’ve demonstrated that they are not sane. People like John Yoo. That guy is nuts.
If I was Joe, or Niall, or Pierre or Laura and I found myself posting this article I feel like I’d have a striking moment of self realization that I’m posting an article written by an architect of modern American torture. But it’s okay because Trump is a hero and Democrats baaaaad. I’m not saying that posting this article is wrong. The article does make some decent points. I’m saying that it’s difficult to take anything this article says seriously when the prior actions of its authors are taken into account.
It's a real wonder I'm not still married, eh?
The posting kind of caught me off guard. Having been here since 2004 I spent the early years reading articles about the horrible things John Yoo ultimately justified and inspired on this very website. Now I’m reading articles written by him about how the constitution is in danger…. bizarre world we live in.
RC