Welcome to DU! The truly grassroots left-of-center political community where regular people, not algorithms, drive the discussions and set the standards. Join the community: Create a free account Support DU (and get rid of ads!): Become a Star Member Latest Breaking News Editorials & Other Articles General Discussion The DU Lounge All Forums Issue Forums Culture Forums Alliance Forums Region Forums Support Forums Help & Search
 

StarfishSaver

(18,486 posts)
21. You're missing the point
Sat Sep 25, 2021, 11:34 PM
Sep 2021

There's a difference between having the legal standing to exert a claim of executive privilege and having that claim found to justify shielding a particular communication.

This is two separate issues, part of a two-step process the court has to consider .

The first question is a threshold one - whether a former president has the right to exert an executive privilege claim. That question is a general one, not related to the substance of the claim. The issue is simply whether he has a right to assert the claim.

If he does not have standing to assert the claim, it doesn't matter what the facts of the case are or what kind of communication he's trying to shield. He cannot even raise the issue of executive privilege - And if he tries, he's bounced out of court, regardless what the substance is .

But if he does have standing, he is allowed to go into court to raise the claim. At that point the court would decide whether or not the claim was a valid one, but he still has the right to assert it .

Trump has the right to assert the executive privilege claim - his position as a former president does not affect that.

Once he asserts that claim, however, it will be up to the court to decide whether or not executive privilege appropriately covers the particular communication he's trying to protect.

None of the quotes you cited contradict this.

Think of it this way. Standing determines whether or not a person is allowed to go into the courtroom. If he doesn't have standing, he's not allowed in the courtroom - the door is essentially slammed in his face before he can say a word. But if he does have standing, he's allowed to go into the courtroom and make his case - The judges will hear him out and then decide whether to rule in his favor or not.

Trump has standing to get into the courtroom. But once there, it's very unlikely the judges will rule in his favor for the reasons you cite - executive privilege cannot be used to protect criminal behavior.

Recommendations

0 members have recommended this reply (displayed in chronological order):

I guess this would be true even if the evidence is requested as part of a criminal investigation? wcmagumba Sep 2021 #1
No, it doesn't. StarfishSaver Sep 2021 #3
Okay, thanks for a great explanation, I'm not a lawyer but it sounds as though drumphy wcmagumba Sep 2021 #9
Glad to explain it - I know it's confusing. Even skilled lawyers are getting it wrong StarfishSaver Sep 2021 #12
Executive Privilege and Former Presidents: Constitutional Principles and Current Application PoliticAverse Sep 2021 #2
Thanks for posting this. From your link: StarfishSaver Sep 2021 #6
The key point I got from that document was... PoliticAverse Sep 2021 #10
Yes, I totally agree with that StarfishSaver Sep 2021 #11
It also says that is is the applied in the constitutional functions of a president Bev54 Sep 2021 #13
Yes - that's one of the reasons I think his attempt to claim executive privilege will fail StarfishSaver Sep 2021 #14
heard to assert doesnt mean they will actually get it IMO. nt msongs Sep 2021 #4
Exactly StarfishSaver Sep 2021 #7
I think people really under estimate how much power a former President still wields fescuerescue Sep 2021 #5
Possibly StarfishSaver Sep 2021 #8
Thanks for explanation Midnightwalk Sep 2021 #15
And the "heard to assert" fits with the rule that Trump has 60 days now to make this claim. pnwmom Sep 2021 #16
Kick StarfishSaver Sep 2021 #17
The current POTUS gets to make the decision on Executive Privilege LetMyPeopleVote Sep 2021 #18
Barbara McQuade is wrong.The decision is not solely up to Biden. StarfishSaver Sep 2021 #19
Biden White House leans toward releasing information about Trump and Jan. 6 attack, setting off lega LetMyPeopleVote Sep 2021 #20
You're missing the point StarfishSaver Sep 2021 #21
Latest Discussions»General Discussion»Several legal pundits are...»Reply #21