Steve Bannon and Executive Privilege

As this former senior White House advisor is called under subpoena to speak with Justice Department Special Prosecutor, Robert Mueller, III, there is the specter of the President’s invoking his right of “executive privilege” to stop that interview or severely limit its scope. Today, all responses from White House staff on whether that step will be taken have been negative, and the President and his aides have instead relied on a campaign of denigrating Bannon and his credibility before he testifies. But as the date for the questioning draws near and the scope of the inquiry widens, scholars are looking at exactly what “executive privilege” means and how much the President of the United States can use that precept to avoid ugly questioning. We have been here twice in recent history: Richard Nixon in 1974 and Bill Clinton in 1998.

The seminal Supreme Court case on point was decided in 1974: United States vs. Nixon. As the Watergate scandal mounted, President Richard Nixon sought to limit what federal prosecutors were able to extract from relevant witnesses who worked as White House staff. And while this may seem long and detailed, in understanding how deeply committed the Supreme Court has been to upholding the law, I suggest that you read these excerpts from that Supreme Court Decision:

Following indictment alleging violation of federal statutes by certain staff members of the White House and political supporters of the President, the Special Prosecutor filed a motion under Fed. Rule Crim. Proc. 17 (c) for a subpoena duces tecum [a judicial requirement to bring relevant documents] for the production before trial of certain tapes and documents relating to precisely identified conversations and meetings between the President and others. The President, claiming executive privilege, filed a motion to quash the subpoena. The District Court, after treating the subpoenaed material as presumptively privileged, concluded that the Special Prosecutor had made a sufficient showing to rebut the presumption and that the requirements of Rule 17 (c) had been satisfied. The court thereafter issued an order for an in camera examination of the subpoenaed material, having rejected the President's contentions (a) that the dispute between him and the Special Prosecutor was nonjusticiable as an "intra-executive" conflict and (b) that the judiciary lacked authority to review the President's assertion of executive privilege…

[We] turn to the claim that the subpoena should be quashed because it demands "confidential conversations between a President and his close advisors that it would be inconsistent with the public interest to produce." App. 48a. The first contention is a broad claim that the separation of powers doctrine precludes judicial review of a President's claim of privilege. The second contention is that if he does not prevail on the claim of absolute privilege, the court should hold as a matter of constitutional law that the privilege prevails over the subpoena duces tecum.

In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President's counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison, 1 Cranch 137 (1803), that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Id., at 177. …

Our system of government "requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch." Powell v. McCormack, supra, at 549. And in Baker v. Carr, 369 U.S., at 211 , the Court stated:  "Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution."

Notwithstanding the deference each branch must accord the others, the "judicial Power of the United States" vested in the federal courts by Art. III, 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government…

[Neither] the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide…

The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence…

We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.

Writing for the January 19^th Los Angeles Times, Caleb Mason (a partner at law firm of Brown White & Osborn LLP, and a former federal prosecutor), and citing Nixon, provides an additional argument why Bannon might not otherwise qualify for that call for executive privilege: “Atty. Gen. Jeff Sessions’ [asserted] executive privilege claims during his congressional testimony regarding the president’s firing of FBI Director James B. Comey. Sessions made a classic criminal-defendant mistake when he testified at length about some conversations with the president, but selectively claimed executive privilege to refuse to answer questions about other conversations. None of the congressional committees have gone to court to compel testimony, but if a judge were to rule on Sessions’ claims, Sessions would lose. His self-serving selective disclosures waived the privilege.

“Sessions even admitted that he didn’t have the authority to claim executive privilege in the first place. If the president asserted it, Sessions would be bound by that assertion. But the president never asserted it…  Bannon is now sitting in the same chair, making the same mistakes. He probably waived any privilege claim he had by regaling ‘Fire and Fury’ author Michael Wolff, and through him the nation, with ‘significant portions of confidential communications’ — precisely the communications he now refuses to testify about. That won’t fly. ‘Public, extrajudicial disclosures constitute a waiver of the privilege for the communications or portions of communications disclosed,’ the case law says.

“But Bannon can’t assert executive privilege to begin with, because — as mentioned — it’s not his to assert. The president could assert executive privilege and formally seek to prevent Bannon and other aides from disclosing their communications with him to Congress, to Special Counsel Robert S. Mueller III, or to a grand jury. But the president has not asserted it — not for Sessions, not for Jared Kushner, not for Don, Jr., and not for Steve Bannon.” Trump would almost certainly lose his effort to assert the privilege in these circumstances. No matter how much he might claim that the undrained swamp is committed to unseat him, I suspect that relitigating this issue would force Trump to accept an order that could be tailored to open the inquiry against him wider.

The Supreme Court would literally have to reverse itself in one of the most important “separation of powers” cases in our nation’s history, and notwithstanding new Justice Neil Gorsuch’s proclivity to pick and choose which Constitutional provisions he likes and which he does not, the Court is extraordinarily unlikely to reverse or limit Nixon. While Donald Trump has shown open contempt for the Constitution, particularly his most-hated First Amendment, he would probably be decimated by the courts should he asset this privilege… and most of the nation would then have to ask, “What is he really hiding?”

I’m Peter Dekom, and we have to strive to retain the notion that the United States is a country built as a nation of laws, even as a very openly vulgar president casts doubt on the institutions that have endured and supported our system for centuries.