Trump Invokes Executive Privilege, Demands Toothpaste Return To The Tube Forthwith

Trump's executive privilege argument is dumb.

(Photo by Jabin Botsford/The Washington Post via Getty Images)

Living with Donald Trump continues to be like living with a parrot who spends all day watching Law & Order. He says legal sounding words he’s heard on television. His owners clap because he’s such a dumb animal that mere articulation seems like an achievement. Later, some cynical turd in the punch bowl has to say “You all know the parrot can’t really talk, right? You know that it doesn’t know what it’s saying, right?”

Whatever, I’ll be the turd. Yes, President Donald Trump invoked “executive privilege” to keep secret the un-redacted version of the Mueller report. Yes, “executive privilege” is a real and robust legal concept. Yes, constitutional scholars hotly debate the extent of executive privilege, and the limits of the power. NO, “executive privilege” cannot reasonably be applied to the current situation and the people trying to tell you otherwise need to go choke on a cracker.

Executive privilege isn’t in the Constitution. It is by convention and precedent that we have decided that some amount of executive privacy is required for the proper operation of government. And that makes sense. The President, in his (and unfortunately it’s still “his”) infinite wisdom, must be free to discuss and debate all possible solutions to a problem. Unpopular solutions. Even potentially illegal solutions. Congress cannot barge into the White House and demand the President or their advisors hand over documents or divulge every possible option that they’ve thought about. Otherwise important options like “let’s nuke the bastards” or “let’s send Jason Bourne to do some regime change” might never be discussed.

The point of executive privilege is to protect the secrecy of Presidential decision making. Like all the other legal privileges I can think of, the privilege is waived when that secrecy is voluntarily breached. You lose your attorney-client privilege when you talk about your fraudulent tax returns to your Treasury Secretary (just making that example for totally no reason). You lose your marital privilege when you show your sidepiece your weird penis. Privileges do not normally survive voluntary disclosure to third parties. Executive privilege is no different. The law, we keep saying, applies to everybody equally.

If Trump has an executive privilege to invoke — and it’s not even clear why allegedly obstructing justice ten different ways would be subject to “executive” privilege — then the time to assert it was before Trump allowed people to testify in the Mueller probe. It would have been challenged then and he would have probably lost then, but that was the time to do it. Re-invoking a privilege previously waived is simply not how privileges work.

It’s possible that the waiver of executive privilege to allow people to testify is not a “full waiver” of executive privilege relating to all matters discussed. But, whatever executive privilege Trump retains would be severely limited. Perhaps it would cover work-product produced to prepare for testimony or, you know, strategy meetings about how Trump planned to get away with all of this.

Sponsored

It couldn’t possibly extend to testimony already given because… it’s TESTIMONY ALREADY GIVEN. But that is exactly what Trump is trying to withhold by asserting executive privilege over the Mueller report. These people have already testified, many in front of a grand jury, and that testimony was written down and transmitted in the form of the Mueller report. Attorney General William Barr then made most of that report public, further vitiating any claim of executive privilege over the Mueller report down to clear absurdity.

Whether or not Congress can see the un-redacted Mueller report turns solely on whether Congress can see grand jury testimony. That question has nothing to do with executive privilege. It’s not like these people testified to the President. They testified in front of the grand jury. Trump doesn’t even have a privilege to assert over the testimony that has already come out of people’s mouths.

The. Whole. Argument. Is. Dumb.

We’re being forced to engage with this stupidity for two reasons:

1. It takes time off the clock.

Sponsored

The wheels of justice move fairly slowly and even in an expedited process, running this dumbass motion practice through the courts will take time. 30 days here for the Democrats to find their ass with a Bluebook. 45 days there to allow for time to brief. A couple of weeks to prepare the appellate motions. Trump can drag this process out, and he’s betting that his willingness to be stupid in court will outlast the Democrats willing to play whack-a-mole. Trump figures that has we get closer to the election, Democrats will desperately want to pivot to “jobs” or “farmers” or “opioids” or some other code word for white people in Wisconsin, as opposed to doing the work required to hold this lawless President accountable. It’s a good bet, on Trump’s part. Nobody ever went broke betting on Democrats to be bumfuzzled.

2. The media is bad at talking about law.

The nature of our adversarial legal system is that there’s always an argument on “the other side” and there’s always a logical sounding lawyer willing to make such an argument. That’s actually a strength of our process, but the inherent “both side-ism” is a drug too powerful for the media to resist. Most can’t spot a dogs**t argument when they see one, and even the ones who can often feel compelled to present trashy legal argument on the same footing as a normal one.

The both side-ism only helps Trump. His supporters will go along with literally anything he says. If he tells them the sky is red they’ll accuse the media of unfairly covering only blue skies, then crow like victors when Fox shows them a sunset. And people who don’t consume a lot of news and don’t have legal training will chalk it all up to “legal mumbo-jumbo” as if this is somehow a complicated issue. I can explain executive privilege, and Trump’s lack thereof, to my six-year-old, but I’ll need him to sit still for five minutes. Trump is counting on most people to lack that kind of stamina. Again, he’s probably not wrong.

Luckily, Trump and his associates step on every potential illegal action with yet another potential illegal action mere days later. Trump’s attempt to rewrite the doctrine of executive privilege will be forgotten about soon. He’ll move on to denying the existence of the 24th Amendment or claiming the right of prima nocta soon.

Trump Asserts Executive Privilege Over Full Mueller Report [New York Times]


Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.