PSAKI says Biden has decided he will NOT invoke executive privilege on Trump's behalf

[Nevilledog]

Link to tweet

Tweet text:
Kyle Cheney
@kyledcheney
PSAKI says Biden has decided he will NOT invoke executive privilege on Trump's behalf to shield any of his White House records from the Jan. 6 committee.
12:27 PM · Sep 24, 2021

[malaise]

1. Get thee to the greatest page

Lock up the Slobfather

[onetexan]

14. +1 K&R!!!

[trusty elf]

30. ...

[malaise]

31. Long time no see trusty elf

So nice to see you - hope all is well

[trusty elf]

61. Hey malaise!

All is well, thanks! Nice to see you too!

Best wishes!

[Traildogbob]

48. Greatest image ever

Have all the spawn in line with his fat ass. And have the combover hanging down one side. He hates his hair not glued into place.

[calimary]

38. Ooooooooooooooohhh YEEEEEEEEEEAAAAHHH!!!

[StarfishSaver]

2. Trump can still invoke it on his own behalf

But without the current executive's cooperation, he's not likely to be successful. I don't think any court will accept it.

Good on President Biden!

[FBaggins]

6. But it could take a year or more to get there. nt

[Nevilledog]

9. The privilege applies to the office, not the person

Are you suggesting there is an actual legal basis Trump can invoke or just the fact that he doesn't give a shit and will pretend he has the authority?

[StarfishSaver]

17. It applies to both

Both the current president and the former president can invoke it communications conducted when the former president was in office.

[Nevilledog]

28. It appears murky at best.

Good article here. (Even though it was written in regards to impeachment, discusses privilege)

https://www.lawfareblog.com/can-former-president-assert-executive-privilege-impeachment-trial

[StarfishSaver]

29. It's really not murky at all. The Supreme Court was unequivocal

it is argued, such claims may be asserted only by incumbents who are presently responsible to the American people for their action. We reject the argument that only an incumbent President may assert such claims, and hold that appellant, as a former President, may also be heard to assert them. Nixon v. Administrator of General Services

I think what is confusing people is the difference between having standing to invoke the privilege, on the one hand, and whether the privilege actually applies to the pertinent communication, on the other. Those are two different things.

But the Supreme Court left no ambiguity - former presidents DO have standing to invoke the privilege for communications engaged in during their presidency. Whether the communication sought is protected by that privilege is a different question.

[malaise]

34. The said Supreme Court

disagreed with Nixon

[StarfishSaver]

39. They disagreed with Nixon about whether the privilege protected that particular communication

But they agreed with him that, as a former president, he did indeed have standing to assert the privilege in court. If it had been a different kind of communication, executive privilege would have protected him from having to turn over the requested records.

[Azathoth]

53. Sure, former presidents can assert it, but that's on behalf of the Office

The idea being that Executive Privilege becomes largely meaningless if an incumbet President must sit powerless as everything from his predecessors is compelled to be made public, and it likewise becomes toothless if an incumbent must spend his entire term in office asserting it on behalf of everyone from previous administrations.

But the idea that a former president can assert the privilege on behalf of an Office that explicitly waives it is logically incoherent.

[StarfishSaver]

56. A former president's ability to invoke EP doesn't make it incoherent. It actually makes good sense

The Supreme Court said: ""This Court held in United States v. Nixon . . . that the privilege is necessary to provide the confidentiality required for the President's conduct of office. Unless he can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends. The confidentiality necessary to this exchange cannot be measured by the few months or years between the submission of the information and the end of the President's tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President's tenure."

Let's look at this in practical terms, using the example I included in my OP: Imagine if Trump and his henchmen, including various U.S. Attorneys, Republican Senators and Members of Congress had decided to really go after President Obama and subpoenaed his Chief of Staff, Cabinet Secretaries (including Hillary Clinton) and other staffers, demanding that they testify about all of their deliberations on various matters.

Surely, former President Obama could have invoked executive privilege, while the Trump White House probably would have declined to do so. I doubt any court in that situation would rule that Obama could not invoke the privilege or that those communications weren't privileged and forced Obama's staff and appointees to testify because Trump's views controlled.

Of course, while it's important that a former president can invoke the privilege when needed, the efficacy of a former president's invocation is generally lessened unless the current president also invokes it. Which also makes sense since it's the current president whose ability to make decisions in a confidential setting is paramount while the previous president's prerogatives are far less important. And, in fact, the executive privilege invoked by a former president is really for the purpose of protecting the current and future presidents, not himself, since he no longer bears the burden of decisionmaking.

[TomCADem]

63. Is there any case where former President invoked it...

…over objections of the incumbent? I can understand that a former President might invoke it, but if it is over the objections of the incumbent, then you could have a former President seriously encumbering the ability of the incumbent to perform their duties by widely invoking the privilege to prevent the incumbent from reviewing any operations prior to the start of the term.

[StarfishSaver]

66. Yes. Although it's not a matter of the current president actually "objecting"-just not supporting it

It occurred in the Nixon case that I cited. Former president Nixon invoked the privilege, but neither Ford nor Carter supported it.

The Court places great emphasis on the fact that neither President Ford nor President Carter "supports appellant's claim. . . ." The relevance of that fact is not immediately clear. The validity of one person's constitutional privilege does not depend on whether some other holder of the same privilege supports his claim. [Footnote 4/20] The fact that an incumbent President has signed or supports a particular measure cannot defeat a former President's claim of privilege.

The fact that the current president doesn't support the claim of executive privilege does not prevent the former president from asserting it. But it does weigh heavily against the validity of the claim for privilege because the incumbent president is viewed as the best judge of whether the communication sought can interfere with future presidential functions.

As the Court said:

At the same time, however, the fact that neither President Ford nor President Carter supports appellant's claim detracts from the weight of his contention that the Act impermissibly intrudes into the executive function and the needs of the Executive Branch. This necessarily follows, for it must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.

It is possible that a former president could invoke the privilege and incumbent president decline to support it and the former president prevails. For example, if the Congress went after former President Obama and tried to obtain sensitive documents or haul his advisers in to testify about confidential conversations that should clearly be protected under the privilege, Obama would not doubt have invoked the privilege and Trump would have refused to join him. If Obama could show the court that the communications sought were indeed sensitive and of the type intended to be protected by executive privilege, the court would likely override Trump's position in favor of Obama's.

The same would hold true if the same scenario were to occur in the future and a Republican president refused to go along with Biden's invocation of executive privilege over communications that occurred during his tenure.

[TomCADem]

70. You Have the Holding Wrong. The Court Rejected ...

…Nixon’s claim of privilege. I asked is there a case a court upheld a claim of executive privilege by a former President over the objections of the current President? I am not asking about if you can make an argument, but is there a published case where a claim of privilege by a former President was actually upheld.

Interesting dicta does not really count.

[StarfishSaver]

71. I have the holding exactly right

But you don't seem to understand the difference between the threshold question of standing to bring a claim and the substantive merit of that claim.

Read the Nixon case again. You will see that the Court used a two-step analysis to reach its conclusions. First, it dealt with the threshold question of whether a former president could exert an executive privilege claim. Had the Court held that Nixon did not have standing, the case would have been dismissed without any further consideration.

But that's not what happened. The court explicitly held that a former president did indeed have standing to assert executive privilege.

We reject the argument that only an incumbent President may assert such claims, and hold that appellant, as a former President, may also be heard to assert them ...

(FYI, when a Justice writing the majority opinion says "we hold that ..." that's not dicta. That's a holding ...)

Having determined that Nixon, as a former president, did have standing to exert executive privilege, the Court then moved on to the next step to determine whether or not the particular communications Nixon was trying to shield should be protected by the executive privilege he was asserting. The Court held that they should not be so protected.

There is no question based on this Court precedent that Trump does have standing to assert an executive privilege claim. The next step would be for the court to consider whether his executive privilege claim has any merit. In this instance, it is unlikely that any court would find that his claim has any merit and his attempt to shield his communications behind executive privilege would be denied.

Whether or not a court has ever accepted a former president's argument that a communication was protected by executive privilege is irrelevant to my point. The point is that, as Justice Brennan made very clear, a former president has the legal right to assert the privilege. Whether or not the court agrees that the privilege applies in a specific case is a completely different determination.

[TomCADem]

72. Just Because Trump Has Standing in the First Place to Assert Privilege...

…is not the same as a holding that a former President can veto a current President’s determination to disclose or waive executive privilege. I think you treating standing as the be all and end all, and no court has held as such.

I think you over relying on standing. There are millions of cases that have been filed where there is no question that the plaintiff has standing because they have pleaded an injury. Shoot, even a pro per plaintiff can manage to plead that they have been injured, but that is not the same thing as establishing a valid claim for relief or cause of action.

[StarfishSaver]

73. I'm not overreyling on standing

I am saying that it is wrong to claim that Trump can't assert executive privilege because he's a former president and former president's can't claim executive privilege.

Standing is not "the end all and be all" but it is a critical threshold in every single civil case. If a party has no standing, they can't even get into court much less have the court rule on the merits of their claim, even if the claim is a strong one.

Trump does have standing to allege executive privilege and standing is a critical factor. The fact that his claim is meritless is a completely different issue. And while the fact that Biden doesn't join him on exerting the privilege is strong evidence that his claim is without merit, it is completely unrelated to whether Trump has standing, which is a legal right he has regardless whether Biden, who has the same right, chooses to exercise his.

Legal commentators need to stop saying former presidents have no right to claim executive privilege since, as I've pointed out repeatedly, the Supreme Court has held just the opposite. They are leading laypeople to have an incorrect assumption about the law.

I am sure that when Trump invokes his right to claim executive privilege and the court hears the claim, as it must, many people who have been misled by these commentators will be furious because they'll believe Trump is getting some special treatment from the courts and until the court throws his claim out as without merit, they will remain up in arms.

The point of providing legal commentary is to help laypeople better understand the law. And the bottom line here is that by giving out wrong information about a kept element of the matter they're discussing, they're doing a disservice and creating false assumptions that could lead to unnecessary confusion and consternation.

[TomCADem]

74. If you look at my posts, never said that Trump does not have standing...

...yet, you keep on arguing a point that is not really in dispute as though standing is the cure all when standing should be a pretty easy hurdle to overcome for the former President himself.

The real question is whether a former President can actually veto a current administration's determinations on whether to invoke Executive Privilege. The analysis does not just end at standing.

[StarfishSaver]

75. Since no one here, including me, has argued that a former President

"can actually veto a current administration's determinations on whether to invoke Executive Privilege," that not only isn't "the real question," it's not a question at all.

[getagrip_already]

10. He can't - he is not the potus.....

Doesn't mean he won't try. But it will quickly get shut down and no appeals court would hear it.

It's that black and white.

[StarfishSaver]

13. Yes, he can

The Supreme Court has held that a former president can invoke the privilege for communications he had as president.

It actually makes a lot of sense. Would you want a Republican successor of Biden's to haul Biden's team in and force them to testify about every conversation or deliberation they had with the former president?

Executive privilege attaches to the office - which is why Biden can invoke it on Trump's behalf if he sees fit - but it also attaches to the former president, as well.

[Qutzupalotl]

19. Former presidents can assert privilege, but current president's views control

according to this Boutros guy:

Link to tweet

[StarfishSaver]

21. That's not quite accurate

The current president's views don't necessarily control. But they would logically be given great weight by the courts. And Biden's refusal to invoke executive privilege on Trump's behalf would be given serious consideration and carry great influence over the court's decision. But a current president's views wouldn't always be controlling.

Imagine if Trump and his henchmen, including various U.S. Attorneys, Republican Senators and Members of Congress had decided to really go after President Obama and subpoenaed his Chief of Staff, Cabinet Secretaries (including Hillary Clinton) and other staffers, demanding that they testify about all of their deliberations on various matters.

Surely, former President Obama could have invoked executive privilege, while the Trump White House probably would have declined to do so. I doubt any court in that situation would rule that no executive privilege existed and forced Obama's staff and appointees to testify because Trump's views controlled.

[orangecrush]

23. Sidney Powell agrees!

[StarfishSaver]

24. One of the few times she would be right

Broken clocks and all that ...

[TomCADem]

64. Wrong. Supreme Court has not held that former...

…President can overrule current President with respect to invocation of privilege. It is nice argument, but the case you keep citing did not involve such a conflict.

It just relates to standing to invoke, but that assumes that the former is not trying to veto the positions of the incumbent.

[StarfishSaver]

67. No. You are confusing the issue of standing with validity of the substantive claim

But those are two separate and distinct things.

The Supreme Court has explicitly held that a former president has standing to invoke executive privilege. They ruled that once that privilege is invoked, the fact that the incumbent president doesn't support the claim is a major factor to consider in determining whether the privilege actually protects the particular communication at issue. But the former president has the right to claim the privilege even if the privilege is found not to apply to that case.

"It is argued, such claims may be asserted only by incumbents who are presently responsible to the American people for their action. We reject the argument that only an incumbent President may assert such claims, and hold that appellant, as a former President, may also be heard to assert them ...

"The confidentiality necessary to this exchange cannot be measured by the few months or years between the submission of the information and the end of the President's tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President's tenure."
...
At the same time, however, the fact that neither President Ford nor President Carter supports appellant's claim detracts from the weight of his contention that the Act impermissibly intrudes into the executive function and the needs of the Executive Branch. This necessarily follows, for it must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.

---Justice Brennan, writing for the majority in Nixon v. Administrator of General Services, 433 U.S. 425 (1977) https://supreme.justia.com/cases/federal/us/433/425/#tab-opinion-1952361

As I've said in other posts, imagine that Trump and his henchmen, including various U.S. Attorneys, Republican Senators and Members of Congress had decided to really go after President Obama and subpoenaed his Chief of Staff, Cabinet Secretaries (including Hillary Clinton) and other staffers, demanding that they testify about all of their deliberations on various matters.

In such a case, President Obama could have invoked executive privilege, while the Trump White House probably would have declined to do so. And it is likely that President Obama's claim of privilege would have prevailed, even though Trump argued otherwise, since those communications clearly fell within the zone that executive privilege protects, regardless whether Trump went along with the argument.

Executive privilege is designed to protect the presidency and while the current president is generally seen as the best person to decide what needs to be protected, he is not conclusively the last word if there are other facts and circumstances that would show the presidency would be better protected by the application of the privilege, notwithstanding the current president's view of it.

[Azathoth]

51. Such a lawsuit would be very interesting

I'm not even sure a court would find he has standing to sue.

[StarfishSaver]

52. There's no question that he has standing to invoke the privilege

But I don't think any court would find that the privilege protects him in this instance.

[Azathoth]

55. Sure, he can sue if it's effectively on behalf of the Office

But if the Office explicitly waives the right, I don't see how he has standing.

[StarfishSaver]

57. The current president's waiving of the privilege doesn't affect the former president's standing

Standing is a legal status that is what it is, regardless what other people do.

A former president has standing to invoke executive privilege no matter whether the current president goes along with it. BUT in refusing to invoke the privilege, the current president is essentially telling the court, "No, we're good ..." In other words, the current president is saying that whatever concerns the former president has about the sought communication harming the presidency or the current administration's ability to do its job, those concerns aren't important enough for the incumbent to try to shield them. Since the current president is in a better position than anyone on earth to determine what is and isn't problematic if revealed, his decision to waive executive privilege carries tremendous weight - and would in most cases overcome the previous president's objections.

Does that make sense?

[50 Shades Of Blue]

3. K & R!

[dmr]

4. Good!

Let's see it all. If tfg fights it, then it must be pretty bad.

[Vinca]

5. Executive privilege cannot be used to hide criminal activity, although I fully expect the

Slobfather to drag it into all the legal filings he'll be making if he can find enough lawyers who will work pro bono.

[wnylib]

41. I get your point that it would have to be pro bono

since DJT never pays up.

He might get attorneys the same way he gets politicians to back him - dig up dirt and threaten to reveal it.

[Johnny2X2X]

7. Hope there are tapes

Of Trump cheering it on and calling for blood.

[Bettie]

8. Good for Joe Biden and

us as well. And by US I mean the citizens of the United States of America.

Getting to the truth of what happened is important.

[Patton French]

11. Was that even under consideration?

Good grief....

[sheshe2]

12. Bwahahahahaha. 🤣🤣🤣

[LetMyPeopleVote]

15. This makes me smile

Link to tweet

[dalton99a]

16. The traitor must be exposed.

[IronLionZion]

18. This is a good precedent

transparency is the best disinfectant.

[Blue Owl]

22. Suck it Slobfather

[iluvtennis]

25. K&R! n/t

[Goodheart]

26. Excellent!

[ananda]

27. Well all right... not catering to treason and sedition...

really works for me -- and of course, the whole damm country.

[bucolic_frolic]

33. Executive privilege was never intended to protect plots to overthrow election results and democracy

Illegal acts, and actions outside the job description, should not enjoy executive privilege

[spanone]

35. 🇺🇸🇺🇸🇺🇸THANK YOU PRESIDENT BIDEN!🇺🇸🇺🇸🇺🇸

[lark]

36. Oh happy day!

I'd bet they were incompetent enough to leave behind incriminating materials which would shed some light on happenings on that day.

[LiberalFighter]

37. The orange idiot is not entitled to executive privilege.

[StarfishSaver]

40. He has legal standing to assert it

But it surely doesn't apply to these communications.

[Farmer-Rick]

42. This is one of the best decisions Biden has made.

I had to say that.

I think it indicates that they have decided to hold Trump accountable.

[lunatica]

43. Good for Biden!

There would have been a great hue and cry across the land if he had!

[SayItLoud]

44. "Norms & Standards" were trashed by TFG;

Reap what ye sow, mudder fuker.

[cilla4progress]

45. Great!

And fuck that guy!!

[ShazzieB]

46. YAAAAYYYYY!!!!!

Don't know anyone else, but I never thought for a millisecond that Biden was going to invoke executive privilege and help the Slobfather continue to hide his misdeeds.

As StarfishSaver has pointed out, Trump can still assert executive privilege himself, but it will. Be up to the courts to decide whether these particular communications are protected by that privilege. And they probably aren't.

My understanding is that by declining to invoke executive privilege on TFG's behalf, Biden has opened a door that TFG is going to have a very hard time closing, although he is of course going to try.

(I hope I got all that right, StarfishSaver. Please feel free to correct or clarify as needed.)

[Skittles]

47. that fucker Trump has been shielded all his fucking life

ENOUGH ALREADY!

[smirkymonkey]

59. +1000

I can't say what I am really thinking right now, but I am in complete agreement here.

[Hotler]

49. That's a win folls, we needed a win. Thank you Mr. President. Now, has the...

statute of limitations run out for Bush/Cheney? Asking for a friend...
Again, thank you brother Joe.

[patphil]

50. We're talking insurrection here.

When you try to topple the government, you can't call Executive Privilege to protect your efforts.

[NewJeffCT]

54. UPDATE - White House walks back from Psaki statement

says no decision has been made yet

Link to tweet

?s=20

[StarfishSaver]

58. Smart move

Link to tweet

I was concerned that Psaki boxed in the administration by suggesting it would waive executive privilege for ALL committee requests for White House records without knowing what requests might be made in the future. It's possible - not likely, but always possible - that the committee could in the future request something that the Biden administration feels really must be protected by executive privilege. They need to leave themselves some wiggle room to invoke the privilege in the future if it's really necessary.

it's always awkward to walk anything back, even if it's just a baby step back in the form of a clarification, but better to do it now than to get themselves in a bind in the future.

i doubt it will ever be an issue - the committee probably will work with the Administration to make sure they're not requesting anything that would need to be protected, but that's not something they can control so I'm glad they clarified this.

[jaxexpat]

60. Had Biden done otherwise, that would be the ultimate conspiracy.

The demise of our democracy misses another bullet.

I wonder if he even asked himself "what would Jerry Ford have done?" I'd hope not.

[cstanleytech]

62. Hopefully there is evidence that Trump did attempt and succeeded in inciting an insurrection

and even though it failed it will also hopefully lead to a trial for those involved.

[BootinUp]

65. Biden understands the threat and the remedy. Nt

[Historic NY]

68. Release it all Joe, find that Putin meeting minutes

[PatrickforB]

69. Gosh darned right!!!! Why in the heck should he?

Trump deserves NOTHING but an amassing of evidence, formal charges, a fair trial and imprisonment for the rest of his miserable life. The guy and his whole movement is a soul-sucking black hole for this republic.

[Mad_Machine76]

76. Are his actions in this unusual?

[lagomorph777]

77. Well, that seems like a pretty obvious decision.

Let the criminal stew in his own memos.