Trump’s Failing And Feckless “Executive Privilege” Impeachment Strategy

Flickr Creative Commons photo image of the District of Columbia Court of Appeals

 

by Richard Cameron


 

Friday closed out yet another turbulent week for the endangered presidency of Donald Trump.

The White House counsel’s office, Cabinet agency level attorneys and GOP members of Congress in both houses have been maintaining that the House Impeachment Inquiry is either unlawful, un-Constitutional or lacking in “due process” or all of the above.

Trump himself, tweeted, “The Ukraine investigation is just as Corrupt and Fake as all of the other garbage that went on before it.” 

On the matter of whether the inquiry / investigation is un-Constitutional or devoid of due process, courts at the federal level are begging to differ.

Congressional committees investigating Trump’s efforts to engage or support Russia’s interference offensive in the 2016 elections, submitted subpoenas to the Trump administration ordering release of un-redacted documents and hearing transcripts of the Grand Jury proceedings conducted in Special Counsel Robert Mueller’s investigation.

Empty Calorie Legal Arguments 

The Trump White House refused to comply on various grounds, mainly having to do with a claim, (including that of White House counsel Pat Cipollone), that Congress is not entitled to the requested materials until a formal vote is taken to officially declare an impeachment inquiry is underway or has been authorized by such a vote.

On Friday, Chief Judge Beryl Howell in a D.C. District Court, rejected Trump administration arguments, stating in her ruling that:

“In carrying out the weighty constitutional duty of determining whether impeachment of the President is warranted, Congress need not redo the nearly two years of effort spent on the Special Counsel’s investigation, nor risk being misled by witnesses, who may have provided information to the grand jury and the Special Counsel that varies from what they tell [the House Judiciary Committee].” 

We reported to you, the political theater stunt that took place on Capitol Hill last Wednesday, where about 2 dozen GOP representatives led by ringleader Matt Goetz, (R-FL), attempted to force access to a secure meeting room (Sensitive Compartmented Information Facility). in the basement of the Capitol, some of them taking photos and video footage of the room, which is a facility that is supposed to remain off the grid as it concerns national security visibility prohibitions in the rules of Congress.

They were ejected, but with the disruption, caused the voluntary testimony of Laura Cooper, Deputy Assistant Secretary of Defense, to be delayed almost 5 hours.

Of the many inflammatory statements intended for the primary audience of Trump’s base in their congressional districts, one that was typical in content was from Rep. Mo Brooks (R-Ala.), a sit-in participant who quipped, “All of us already know that this is a sham process that the Democrats are using for the 2020 elections. It’s Russian collusion 2.0, which was a total hoax.”

Pentagon lawyers fail to dissuade testimony from Impeachment inquiry witness    


It was learned by the New York Times, that Ms. Cooper had been sent a lengthy memo from D.O.D. lawyers informing her that her participation was not compulsory – in other words, despite the issuance of a subpoena from the inquiry committees headed by House Intelligence Committee Chair, Adam Schiff (D-CA), Ms. Cooper could choose not to comply, if she wished.

The premise behind this claim, which was repeated ad nauseum throughout the memo, boiled down to claims that an OLC (Office Of Legal Counsel) memo had opined that it was not proper for a cabinet level official to attend a congressional deposition without a departmental attorney in attendance.

The second objection, which related to the first, to Ms. Cooper’s appearance before the committee, was that Donald Trump’s prerogatives of “executive privilege” might be harmed or compromised. Again, the memo sent to Ms. Cooper, relied almost entirely on the recital of various opinions from the OLC and less on unsuccessful arguments in a series of court rulings that past presidents found much less than satisfactory. 

Unspoken, but easy to discern in the memo, was that if Cooper had Defense Department lawyers sitting next to her on the witness table, they would have coached her to refuse each and every question of any specific matter or substance, with a stock statement, something along the general lines of “I’m sorry I am not able to provide an answer to that because I may be violating executive privilege.”

Attempting to strong arm Ms. Cooper with a refuse to cooperate advisory, was the key strategy of the White House and compliant Defense Department attorneys. It did not work.

The administration has been very unsuccessful in discouraging witnesses from appearing before the Impeachment Inquiry committee, as evidenced by the compliance of EU Ambassador Gordon Sondland, former Ambassador to Ukraine Marie Yovanovitch, Special Envoy to Ukraine Kurt Volker, National Security official and adviser to the president on Russian affairs, Fiona Hill and former Ambassador William Taylor, among others.

Executive Privilege has its limitations

But the memo and other responses to the Impeachment Inquiry, reveal that the main thrust of Trump’s defense against complying with document requests and witness appearances, centers on the assertion of executive privilege and in this, there was on display, a lot of clumsy slight of hand and other easy to follow legerdemain.

The problem with this bit of pettifogging and stalling, is that although such a thing as executive privilege does exist, it does not apply in this situation. The only matters that it applies to are discussions between Trump and executive level advisers either in the Oval Office or other presidential meeting rooms – or in offices within the West Wing.

If Congress is conducting an essentially narrowly targeted inquiry on the basis of suspected criminal activity involving the president and / or a subordinate – executive privilege does not cover. It also does not cover communications to or from or within agency offices not in direct proximity to the president’s office complex.

The extent of the documentation as in pertinent cases decided in the The Court of Appeals for the D.C. Circuit that contradict the claims made by the Pentagon attorneys in that memo, is voluminous and lengthy, but we will touch on the issue here, in brief.

The Project On Government Oversight (POGO), a “nonpartisan independent watchdog that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing”, quotes from a case in the federal record which deals with a similar, but less egregious and wide ranging matter.

POGO’s Mort Rosenberg cites the court ruling in In re Sealed Case (Espy), from 1994;

“At the outset, the D.C. Circuit’s opinion carefully distinguished between the “presidential communications privilege” and the “deliberative process privilege.” Both, the court observed, are executive privileges designed to protect the confidentiality of executive branch decision-making. But the deliberative process privilege (discussed in detail in Chapter 6) applies to executive branch officials generally and is not constitutionally based. It, therefore, can be overcome with a lesser showing of need and “disappears altogether when there is any reason to believe government misconduct [has] occurred.”

Mr. Rosenberg goes on to relate the court’s decision on the question of the president’s (in this case, Clinton) claims of presidential communication privilege, the aspect of executive privilege that the D.O.D. memo seems mostly to be concerned with.

“The privilege does not extend beyond close presidential advisers to reach communications with heads of agencies or their staffs. The court emphasized”:

“Not every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege. In particular, the privilege should not extend to staff outside the White House in executive branch agencies …. The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decision-making by the President.”

Another court ruling, this one in the Judicial Watch case, even further defines the limitations of the presidential communications privilege, putting forth that heads or subordinates of heads of cabinet level departments will not be considered part of the president’s immediate personal staff or as a unit of the Executive Office.   The court held that:

“Communications never received by the President or his Office are unlikely to ‘be revelatory of his deliberations’ … nor is there reason to fear that the Deputy Attorney General’s candor or the quality of the Deputy’s pardon recommendations would be sacrificed if the presidential communications privilege did not apply to internal agency documents.”

Rudy G. and his Attorney – Client privilege one legged dance

Similarly, what we now know will be Rudy Giuliani’s tactic in refusing to cooperate with Congress, is a claim that he is not entitled to discuss any matters on the grounds of Attorney-Client privilege. Giuliani recently told CNN, “Ultimately, if I were to say yes and [Trump] were to say no, I can’t testify.”

Once again, such a legal principle does obviously exist in the abstract, but it vanishes when there is probable cause to believe that the attorney and the client were co-participants in an illegal act. Cyrus Mehri, Richard Condit and Cleveland Lawrence III – all whistleblower attorneys in Washington D.C., state that, “ If there is evidence that a lawyer has been used to advance a crime or fraud, the privilege vanishes. And for Giuliani, that evidence is everywhere.”

The trio of attorneys go on to discuss the mechanism within the system that serves to invalidate the normal applicability of attorney -client privilege – known as the “crime-fraud exception”.

“The Supreme Court has endorsed the application of the crime-fraud exception as an appropriate tool to prevent the misuse of the attorney-client privilege by fraudsters and criminals. Much like in the Godfather movie, where the Corleone family hides behind its attorney and bribery scheme mastermind Tom Hagen, it is not uncommon for defendants to use their relationship with their attorneys to obscure evidence of wrongdoing.”

They also cite Giuliani’s activities of conducting an operation intended to solicit damaging political information against Trump’s potential presidential opponent, Joe Biden and his son, Hunter – along with conceivable charges against Mr. Giuliani of having violated the Logan Act, as significant examples of crime-fraud exemptions that would nullify Giuliani’s assertion of attorney-client privilege.

Rep. Jamie Raskin (D-MD), a colleague of the late Elijah Cummings – and himself, a constitutional law professor, stated in his assessment of the GOP tactics:

“President Donald Trump has conducted an effort to shake down a besieged foreign ally resisting Russian aggression in order to get dirt on a political opponent. It’s unprecedented in American history, it’s an outrage, it’s a scandal, and our Republican colleagues want to talk about anything except for that, And so they’ve been trying to distract America with a series of frivolous process complaints.”

It’s difficult to sum it up more accurately and succinctly than that, except it doesn’t quite fit on a bumper sticker, which is the total extent of the attention span Trump’s voters are capable of following.

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