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Seth Abramson on executive privilege (Original Post)
triron
Jan 2018
OP
The most important thing to know is that if Congress doesn't challenge an assertion...
PoliticAverse
Jan 2018
#2
csziggy
(34,137 posts)1. Here is the thread in an easier to read format
(THREAD) "Executive privilege" is about to become the most important term in U.S. political discourse. This threadwritten by an attorneyoffers a basic primer in executive privilege that'll help you navigate the Trump-Russia story in the days ahead. I hope you'll read and share.
22 tweets 43 minutes ago
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Seth Abramson @SethAbramson Follow Read on Twitter
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1/ Because executive privilege only arises inthat is, can only be raised inunusual circumstances, it hasn't often been litigated in the courts and doesn't even have a firm definition in case law. Usually, the three branches of government find ways to avoid use of the privilege.
2/ The privilege attaches to the executive branch of government, not the judicial or legislative branches. It becomes relevant when Congress wants information from the executive branch or a subpoena has been issued by a judge to get certain information from the executive branch.
3/ Usually, the mere specter of an assertion of executive privilege is enough to send the parties to the negotiating table to work out a way for a smaller stock of information than was originally sought to be given to Congress or a subpoena-issuing judge. It's a negotiating chip.
4/ In the present casethe Trump-Russia probeit's not clear that executive privilege is going to be a mere negotiating chip, as there is certain information the executive branch (namely its head, Mr. Trump) doesn't want other branches to have access to under any circumstances.
5/ Trump doesn't want the other branches to access this information because it might incriminate him and lead to his impeachment, removal, indictment, prosecution, and incarceration. Specifically, he's afraid certain information could lead to charges of Obstruction or Conspiracy.
6/ With that in mind, there's really no amount of a certain type of information the executive branch is going to allow the judicial branch to subpoena, and that means that, as has only rarely happened before, the issue of executive privilege will come before the Supreme Court.
7/ Executive privilege is an umbrella term for four privileges that may allow the executive branch to refuse to turn over certain documents/testimony: national security privilege, attorney-client privilege, deliberative process privilege and presidential communications privilege.
8/ "Attorney-client privilege" is already reasonably well understood by laypeoplegenerally speaking, and with only rare exceptions, conversations between attorneys and their clients are confidential unless and until the client (and only the client) agrees to waive the privilege.
9/ National security privilege isn't hard to understandthough in its operation it's complex. Basically, the executive branch can withhold information from Congress or a judicial subpoena if the provision of the information to the party requesting it would harm national security.
10/ In the Trump-Russia case, there may on occasion be claims of attorney-client privilege, but there are unlikely to be many valid assertions of national security privilegemostly because the probe is about uncovering threats to national security, not exposing NatSec operations.
11/ Attorney-client privilege has already been *fraudulently* raised by the president's son in testimony before Congress. Don Jr. claimed that whenever an attorney is in a room where a conversation is happening, that conversation is privileged for any and all persons in the room.
12/ This is wrong on *every* count: the attorney must be one you've retained; the conversation must generally pertain to the course of representation; it can't involve discussion of future crimes; it can't occur in a situation where you've waived it (e.g., if others are present).
13/ Don Jr. raised attorney-client privilege to hide statements he made to a third party while the third party's lawyer was presentand not only did the nature of the conversation suggest a non-confidential disclosure and a waiver, it's likely future crimes were being discussed.
14/ Don got away with a fraudulent raising of the privilege because the GOP members of the committee he was testifying before allowed it and because he was testifying voluntarilyas opposed to under subpoenaand thus no one could force him to answer questions he didn't want to.
15/ Going forward, we'll see much more questioning under subpoenathat is, Bob Mueller subpoenaing witnesses to a grand juryso fraudulent claims of attorney-client privilege won't be successful. But we can expect Trump will raise the privilege at every juncture he possibly can.
16/ Trump is most likely to be put in situations in which he can arguably raise attorney-client privilege when it comes to another Trump-Russia witnessWhite House counsel Don McGahn (Mueller almost certainly wouldn't ask Trump to discuss conversations with his personal lawyers).
17/ The problem for Trump here is that Don McGahn represents the Office of the President, not Trump personally, so only conversations between McGahn and Trump that arise in the context of presidential dutiesas opposed to personal actionsare covered by attorney-client privilege.
18/ You may already see why this distinction is likely to lead to some legal battles: was Trump Obstructing Justice to protect himself from future impeachment and indictment a "presidential" or "personal" action? Trump will argue the former, while Mueller will argue the latter.
19/ Also, the privilege doesn't apply during impeachment proceedings, may be hampered by the fact McGahn may face legal liability in the Trump-Russia case, and is certainly hurt by Trump having had *personal* attorneys at all times who he could have conferred with confidentially.
20/ The most complicated privileges involved in the Trump-Russia case are "presidential communications privilege" and "deliberative process privilege." Both privileges are meant to protect the president's right to free and unfettered advice from, and discourse with, his advisors.
21/ Because the president is the privilege-holder, the president must proactively assert the privilege for it to apply. Because he wants to be able to say he's "cooperating" with the Trump-Russia investigation, Trump has yet to invoke either of these two privilegesnot even once.
https://threadreaderapp.com/thread/953458326095974403.html
22 tweets 43 minutes ago
Profil picture
Embed
Seth Abramson @SethAbramson Follow Read on Twitter
Don't miss anything, subscribe to @SethAbramson unrolls!
1/ Because executive privilege only arises inthat is, can only be raised inunusual circumstances, it hasn't often been litigated in the courts and doesn't even have a firm definition in case law. Usually, the three branches of government find ways to avoid use of the privilege.
2/ The privilege attaches to the executive branch of government, not the judicial or legislative branches. It becomes relevant when Congress wants information from the executive branch or a subpoena has been issued by a judge to get certain information from the executive branch.
3/ Usually, the mere specter of an assertion of executive privilege is enough to send the parties to the negotiating table to work out a way for a smaller stock of information than was originally sought to be given to Congress or a subpoena-issuing judge. It's a negotiating chip.
4/ In the present casethe Trump-Russia probeit's not clear that executive privilege is going to be a mere negotiating chip, as there is certain information the executive branch (namely its head, Mr. Trump) doesn't want other branches to have access to under any circumstances.
5/ Trump doesn't want the other branches to access this information because it might incriminate him and lead to his impeachment, removal, indictment, prosecution, and incarceration. Specifically, he's afraid certain information could lead to charges of Obstruction or Conspiracy.
6/ With that in mind, there's really no amount of a certain type of information the executive branch is going to allow the judicial branch to subpoena, and that means that, as has only rarely happened before, the issue of executive privilege will come before the Supreme Court.
7/ Executive privilege is an umbrella term for four privileges that may allow the executive branch to refuse to turn over certain documents/testimony: national security privilege, attorney-client privilege, deliberative process privilege and presidential communications privilege.
8/ "Attorney-client privilege" is already reasonably well understood by laypeoplegenerally speaking, and with only rare exceptions, conversations between attorneys and their clients are confidential unless and until the client (and only the client) agrees to waive the privilege.
9/ National security privilege isn't hard to understandthough in its operation it's complex. Basically, the executive branch can withhold information from Congress or a judicial subpoena if the provision of the information to the party requesting it would harm national security.
10/ In the Trump-Russia case, there may on occasion be claims of attorney-client privilege, but there are unlikely to be many valid assertions of national security privilegemostly because the probe is about uncovering threats to national security, not exposing NatSec operations.
11/ Attorney-client privilege has already been *fraudulently* raised by the president's son in testimony before Congress. Don Jr. claimed that whenever an attorney is in a room where a conversation is happening, that conversation is privileged for any and all persons in the room.
12/ This is wrong on *every* count: the attorney must be one you've retained; the conversation must generally pertain to the course of representation; it can't involve discussion of future crimes; it can't occur in a situation where you've waived it (e.g., if others are present).
13/ Don Jr. raised attorney-client privilege to hide statements he made to a third party while the third party's lawyer was presentand not only did the nature of the conversation suggest a non-confidential disclosure and a waiver, it's likely future crimes were being discussed.
14/ Don got away with a fraudulent raising of the privilege because the GOP members of the committee he was testifying before allowed it and because he was testifying voluntarilyas opposed to under subpoenaand thus no one could force him to answer questions he didn't want to.
15/ Going forward, we'll see much more questioning under subpoenathat is, Bob Mueller subpoenaing witnesses to a grand juryso fraudulent claims of attorney-client privilege won't be successful. But we can expect Trump will raise the privilege at every juncture he possibly can.
16/ Trump is most likely to be put in situations in which he can arguably raise attorney-client privilege when it comes to another Trump-Russia witnessWhite House counsel Don McGahn (Mueller almost certainly wouldn't ask Trump to discuss conversations with his personal lawyers).
17/ The problem for Trump here is that Don McGahn represents the Office of the President, not Trump personally, so only conversations between McGahn and Trump that arise in the context of presidential dutiesas opposed to personal actionsare covered by attorney-client privilege.
18/ You may already see why this distinction is likely to lead to some legal battles: was Trump Obstructing Justice to protect himself from future impeachment and indictment a "presidential" or "personal" action? Trump will argue the former, while Mueller will argue the latter.
19/ Also, the privilege doesn't apply during impeachment proceedings, may be hampered by the fact McGahn may face legal liability in the Trump-Russia case, and is certainly hurt by Trump having had *personal* attorneys at all times who he could have conferred with confidentially.
20/ The most complicated privileges involved in the Trump-Russia case are "presidential communications privilege" and "deliberative process privilege." Both privileges are meant to protect the president's right to free and unfettered advice from, and discourse with, his advisors.
21/ Because the president is the privilege-holder, the president must proactively assert the privilege for it to apply. Because he wants to be able to say he's "cooperating" with the Trump-Russia investigation, Trump has yet to invoke either of these two privilegesnot even once.
https://threadreaderapp.com/thread/953458326095974403.html
PoliticAverse
(26,366 posts)2. The most important thing to know is that if Congress doesn't challenge an assertion...
of "execuitive privilege" in the courts, it's effectively valid.