Why is Trump's claim of executive privilege different?

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When President Thomas Jefferson claimed in 1807 that he was not obliged to comply fully with a subpoena for documents, he had his former vice-president tried for treason for attempting to do so. to incite revolution in the West. The trial of the former vice-president turned revolutionary revolutionary was Aaron Burr, from the duel's fame "Hamilton". The Supreme Court, under Jefferson J.'s chief justice, John Jefferson, disagreed with the president's argument. Jefferson ended up denouncing the documents Burr was looking for in his defense and he was finally released.

At the end of 170 years, Chief Justice Warren Burger used the Burr trial to rule that President Richard Nixon had to comply with a subpoena presented by the special advocate for his conversations recorded in the Oval Office.

None of these cases are exactly the same. Jefferson was responding to a subpoena in a criminal trial. Nixon was responding to a subpoena from a special attorney. Trump, citing a general claim of executive privilege on Wednesday, was responding to a congressional summons for the Mueller report.

But they all share the idea that presidents should be able to keep the secrets of Congress in order to do their job. The term itself – executive privilege – only goes back to the Eisenhower administration. And although this is not in the Constitution, the idea has been the subject of considerable debate since George Washington used it for the first time in congressional investigations into the 1795 Jay Treaty between the United States and the United States. United and Britain.

This is not a secret subject or under-analyzed. Books on books have been written about this and just about every recent generation have had a decisive crisis about it, especially when presidents have used the idea of ​​executive privilege to conceal missteps.

At his treason trial in 1807, former Vice President Aaron Burr subpoenaed documents of President Thomas Jefferson.
"The weakest claims of executive privilege involve administrations trying to conceal embarrassing or politically disturbing information or even wrongdoing," write Mark Rozell of George Mason University and Mitchel Sollenberger of the University. from Michigan.

They point out, however, that it is absolutely necessary for the president to obtain frank advice and keep the information confidential.

"Presidents rely heavily on the opportunity to consult with advisors, without fear of public disclosure of their deliberations," write Rozell and Sollenberger. "The privilege of the executive recognizes this notion.In fact, in the US v. Nixon case, the Supreme Court not only recognized the constitutionality of the privilege of the executive, but also the occasional necessity to keep the secret secret on the functioning of the presidency. "

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In his memoirs, Nixon regretted having weakened the principle.

"I was the first president to test the principle of executive privilege before the Supreme Court, and by testing it on such a weak pitch, I probably ensured the defeat of my case" he wrote.

There has been a ebb and flow since.

President Ronald Reagan sought to develop the idea. Bill Clinton has tried to use him more than any other president since Watergate as part of his fight against the Whitewater investigation and the aftermath of the Monica Lewinsky affair, according to academics. He eventually abandoned the claim of executive privilege with respect to the congressional testimony on Lewinsky.

According to Rozell and Sollenberger, Congress considered, but ultimately failed to follow a charge of indictment against Clinton for abuse of privilege by the executive. Clinton claimed the executive privilege 14 times, according to a count of the Congressional Research Service in 2012, more than double the any other modern president.

President George W. Bush has tried to extend it further and strengthen the power of the presidency. He signed an executive order that gave the current president the opportunity to exercise the privilege of the executive over the documents of previous presidents. He also got into trouble with Congress for using this idea to protect top advisers such as Karl Rove from congressional testimony. At the time, CNN's Jim Acosta had explained where Congress could put someone like Rove in jail when he was trying to arrest him. (Yes, Congress can technically arrest people, but it has not tried for over 70 years.)
President Barack Obama has much criticized the privilege of the executive, but exercised it on behalf of his Attorney General, Eric Holder, found guilty of contempt of court for the scandal of the sale of firearms Fast and Furious. A federal judge finally forced the holder to hand over the documents.

Trump's claim is different

Trump's statement, however, is a general affirmation of privilege in all matters relating to the report of the Special Council on the investigation of Russia. This is unconventional in some respects, since the privilege is usually claimed for close associates and in the case of Trump, there is an investigation into his administration and his 2016 political campaign. It is also very broad and apparently relates to all congressional investigations relating to Mueller.

READ: Trump Affirms Executive Privilege on Unwritten Mueller Report, According to Ministry of Justice Letter

"This affirmation of the privilege of the executive guarantees the ability of the president to make a final decision as to the desirability of doing so after a thorough review of these documents," wrote Stephen Boyd, head of the department of government. Justice in a letter to the Judiciary Committee of the House.

"Claims of executive privilege usually accompany reasons such as national security, the protection of internal deliberations, or the protection of ongoing investigations by the DOJ," Rozell told CNN in an e-mail. . "In this case, the president has claimed a" protective "privilege from the executive that is quite too broad and unprecedented (with the exception of equally broad claims such as those of President Nixon who have failed under the constitutional standard) any information or testimony by simply uttering the words "executive privilege."

One of the problems of the Democrats right now is that they have asked for virtually every piece of material on the Mueller report, which they may never get.

Timothy Naftali, a New York University historian and former Nixon Presidential Library official, told CNN on Wednesday that they should be more specific and detailed in their demands.

"I think that right now many Americans see Republicans and Democrats shouting at it, and the details – which are so important – are disappearing," he said. he said, saying that Trump generally claimed privilege because he thinks most people will only see political exchanges rather than understand what exactly the Democrats are trying to achieve.

"Usually, disputes over executive privilege are resolved through a process of accommodation between Congress and the White House," Rozell said. "It seems like we're stuck now in a zero-sum game with each part digging."

Anyway, it's now a fight for the courts. And these things take time. It took a year from the time Nixon refused to publish the tapes until the Supreme Court ruled against him. It was four years from the time Obama formulated his claim for executive privilege regarding Fast and Furious before a judge dismissed it. And even then, the legal battle around the documents continued in the Trump administration.
Indeed, on Wednesday, the Democrat – led House and the Justice Department announced before a Washington court of appeal that they had reached an agreement in the Fast and Furious case.

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