Executive privilege...

[hollodero]

...help me out here. This is a serious question, not meant to be presumtious. If a president can use that claim for basically anything, how is he not above the law?

As I see it, Trump could shoot someone in the street, as he said, then call executive privilege over all possible proof (witness statements, video material etc.) and get away with it. As kind of a reinsurance, a president also can not be indicted obviously.

Which amounts to being above the law. Maybe shooting someone is a notch too far, but let's say it's a less obvious crime, a president could totally make everything about that crime disappear with executive privilege claims. This looks quite unprecedented in western democracies. Or am I wrong?

[*bfine32*]

(05-24-2019, 01:38 PM)hollodero Wrote: ...help me out here. This is a serious question, not meant to be presumtious. If a president can use that claim for basically anything, how is he not above the law?

As I see it, Trump could shoot someone in the street, as he said, then call executive privilege over all possible proof (witness statements, video material etc.) and get away with it. As kind of a reinsurance, a president also can not be indicted obviously.

Which amounts to being above the law. Maybe shooting someone is a notch too far, but let's say it's a less obvious crime, a president could totally make everything about that crime disappear with executive privilege claims. This looks quite unprecedented in western democracies. Or am I wrong?

I'm sure one of the government experts can give a better/correct answer. But I think that's why he has to be impeached and removed from office and then investigated for the crime.

But your question does make me go "hhhmmm" if he shot someone would he immediately be arrested?

[hollodero]

(05-24-2019, 01:50 PM)bfine32 Wrote: I'm sure one of the government experts can give a better/correct answer. But I think that's why he has to be impeached and removed from office and then investigated for the crime.

But for an impeachment, one would also need evidence. Witnesses. Documents. All things that can be put under executive privilege, obviously. Now all you need is a party of non-Amashes that cover for you no matter what, and you're pretty much untouchable. That's how it appears to me.

So there seems to be no way to investigate him if he chooses to prohibit it. From obvious crimes to questionable security clearances and everything in between.

[hollodero]

(05-24-2019, 01:50 PM)bfine32 Wrote: But your question does make me go "hhhmmm" if he shot someone would he immediately be arrested?

From what I saw, I guess not. There would be a special investigator who would claim that if he could clear the president of murder, he would so state - but as things stand, he only can describe the evidence and not reach a decision, for a president cannot be indicted.

Then Trump would go out and shout "no murder!" and how he was treated so unfairly.

[Benton]

(05-24-2019, 02:06 PM)hollodero Wrote: But for an impeachment, one would also need evidence. Witnesses. Documents. All things that can be put under executive privilege, obviously. Now all you need is a party of non-Amashes that cover for you no matter what, and you're pretty much untouchable. That's how it appears to me.

So there seems to be no way to investigate him if he chooses to prohibit it. From obvious crimes to questionable security clearances and everything in between.

That's good to have, but I don't think really necessary. Impeachment is a political mechanism for removing someone from office, not a criminal trial. 

If I'm not mistaken, and I may be because that was a long time ago, there wasn't any evidence in Clinton's impeachment outside of the dress. It was all just claims that he had perjured and that he had obstructed. So it's not like a court of law where you have to prove something happened, it's just where you have to convince enough members of Congress that they should vote as if something happened.

The "did Trump do something impeachable" issue has really been more about if Democrats want to play the political theater the Republicans did in the 90s with Clinton, or if they want to just use it as marketing material. 

[fredtoast]

It is complicated, but the claim of executive privilege can be challenged in court. Sometimes the judge is allowed to see evidence that remains "under seal" so that no one else can ever access it.

There are basically two basis for "executive privilege". the first is "national security" and the nature of the information being requested can usually determine if national security would be an issue. The other is a requirement that the White House be allowed to deliberate in private and rely on sources and information that has to remain confidential. So while those two qualifications cover a lot of area they are not unlimited. They don't cover his personal business dealings.

[hollodero]

(05-24-2019, 04:02 PM)Benton Wrote: That's good to have, but I don't think really necessary. Impeachment is a political mechanism for removing someone from office, not a criminal trial. 

Fair enough, but without evidence some folks will be hard to convince. As in the case of Trump, I doubt many republicans really see him as an innocent lamb. But they can uphold that position publicly as long as evidence and testimonies are blocked by a privilege claim.

"most transparent president in history"

[hollodero]

(05-24-2019, 04:14 PM)fredtoast Wrote: There are basically two basis for "executive privilege".  the first is "national security" and the nature of the information being requested can usually determine if national security would be an issue.  The other is a requirement that the White House be allowed to deliberate in private and rely on sources and information that has to remain confidential.   So while those two qualifications cover a lot of area they are not unlimited.  They don't cover his personal business dealings.

Alright, these instances do make sense... but the way I see it (and I might have missed something), Trump is now blocking everything, including subpoenas to his bookie firm and whatnot, by a privilege claim. So that shouldn't be covered, so how can he do that? And if he can do that, what can't he block?

Something maybe not 100% related, but since I wonder that too: Trump also, successfully obviously, can hinder the law being executed regarding his tax returns. There's a clear law regarding the right of some chairman (forgot who) to see them - the Trump admin clearly is breaking that law - and yet nothing happens. Almost as if Trump can claim he is the law and a president by definition can do nothing illegal or unlawful. How else could that stand?

I have to say, I might be wrong, but from the outside it seems your constitution left open a huge flaw - a president's theoretical legal intouchability - and you were just lucky through history that no one went there yet.

[fredtoast]

(05-24-2019, 04:51 PM)hollodero Wrote: I have to say, I might be wrong, but from the outside it seems your constitution left open a huge flaw - a president's theoretical legal intouchability - and you were just lucky through history that no one went there yet.

We did have one go there.  Nixon was guilty of obstructing justice for his part in covering up the Watergate burglary.  He went down when the courts made him turn over confidential tapes from secret recording devices in the oval office.  The citizens got to hear it all.

Nixon resigned before he could be impeached, and the next President, Ford, pardoned Nixon before he was ever convicted of anything.

Basically the system worked.  Nixon avoided prosecution, but he was ran out of office.

[hollodero]

(05-24-2019, 04:58 PM)fredtoast Wrote: We did have one go there.  Nixon was guilty of obstructing justice for his part in covering up the Watergate burglary.  He went down when the courts made him turn over confidential tapes from secret recording devices in the oval office.  The citizens got to hear it all.

Nixon resigned before he could be impeached, and the next President, Ford, pardoned Nixon before he was ever convicted of anything.

Basically the system worked.  Nixon avoided prosecution, but he was ran out of office.

Yeah right, and for several years he was called a crook for that. Now it seems to me he was an idiot for not claiming privilege. Why did he obey and turn over the tapes? Because "courts made him"? Nixon just followed the law in the end. I'm afraid Trump won't be so gullible. 
I guess my question would be, what would have happened if Nixon had just said that's privileged, so no, you do not get the tapes? Would the marshals have come?

As stated, I feel Trump already breaks an unequivocally written law and nothing seems to happen. And lo and behold, there's already a memo or something that states that executive privilege superseeds the law. If that is true, I wouldn't know. Is it?

[fredtoast]

(05-24-2019, 05:23 PM)hollodero Wrote: I guess my question would be, what would have happened if Nixon had just said that's privileged, so no, you do not get the tapes? Would the marshals have come?

He would have been removed from office and prosecuted.  Same thing will happen to Trump.


Our system is set up with checks and balances so that no one branch (judicial, executive, legislative) is above the other.  It is called "The Theory of Rock, Paper, and Scissors". 

[*bfine32*]

(05-24-2019, 05:23 PM)hollodero Wrote: Yeah right, and for several years he was called a crook for that. Now it seems to me he was an idiot for not claiming privilege. Why did he obey and turn over the tapes? Because "courts made him"? Nixon just followed the law in the end. I'm afraid Trump won't be so gullible. 
I guess my question would be, what would have happened if Nixon had just said that's privileged, so no, you do not get the tapes? Would the marshals have come?

As stated, I feel Trump already breaks an unequivocally written law and nothing seems to happen. And lo and behold, there's already a memo or something that states that executive privilege superseeds the law. If that is true, I wouldn't know. Is it?

Seems like you're try quite hard to make this about one particular POTUS instead of the title you proposed. Of course that could just be my defense mechanism kicking in. 

[Benton]

(05-24-2019, 04:42 PM)hollodero Wrote: Fair enough, but without evidence some folks will be hard to convince. As in the case of Trump, I doubt many republicans really see him as an innocent lamb. But they can uphold that position publicly as long as evidence and testimonies are blocked by a privilege claim.

"most transparent president in history"

Once, sure, but not so much any more.

Clinton, essentially, was impeached because Democrats had gained too much favor over Republicans. The whole 'vote for us and we'll cut taxes to the rich' had played out, so Republicans asked Clinton about his extramarital affair in order to tarnish the party, he lied about it and got impeached. 

Luckily, we had the internet and established alt-right news by the time Obama came along, that way they could just make vague innuendos about being a terrorist, being a muslim, being a radical Christian, etc., and not waste taxpayer money with political shams.

[fredtoast]

Let me add that the Dems can only push this so hard without really solid evidence of what they will find. Donald Trump will fight them even if he knows there is nothing to hide. That way the Dems have to spend all of their energy and publicity taking him to court and then finding nothing. The general public is getting tired of these investigations and Trump loves them because they play right into his act of playing the victim.

So it is possible you will see Trump defy a court order on something minor and the Dems just letting it go.

This is complicated political territory with the 2020 election starting to gear up.

[hollodero]

(05-24-2019, 05:53 PM)bfine32 Wrote: Seems like you're try quite hard to make this about one particular POTUS instead of the title you proposed. Of course that could just be my defense mechanism kicking in. 

Of course it's about Trump. That's really not that big of a catch and I did not try to veil the fact that his particular deeds made me ask that question. And yet you caught me!

But there's a theoretical question connected to it - can a president de facto become legally untouchable (at least under suitable political premises) by claiming some kind of universal executive privilege. That is not me constructing a ridiculous case, that seems exactly what Trump is actually trying to do.

[hollodero]

(05-24-2019, 05:50 PM)fredtoast Wrote: He would have been removed from office and prosecuted.  Same thing will happen to Trump.


Our system is set up with checks and balances so that no one branch (judicial, executive, legislative) is above the other.  It is called "The Theory of Rock, Paper, and Scissors". 

Yeah I get the system, ours is almost the same, minus the fact that the chief executive has such broad powers to overrule and claim privileges. But right now Trump seems to bet on the fact that the executive branch - and hence, he himself - beats all others if need be. It kinda worked already with the legislative branch (their subpoenas fell flat already, and no congress police arrested anyone for that), it's now up to the courts, and can they actually execute their rulings? If you say so, I will believe you, but I wasn't so sure about that. After all, a president obviously cannot be indicted (which is a weird and to me dangerous rule to begin with).

[Belsnickel]

(05-24-2019, 06:18 PM)hollodero Wrote: Yeah I get the system, ours is almost the same, minus the fact that the chief executive has such broad powers to overrule and claim privileges. But right now Trump seems to bet on the fact that the executive branch - and hence, he himself - beats all others if need be. It kinda worked already with the legislative branch (their subpoenas fell flat already, and no congress police arrested anyone for that), it's now up to the courts, and can they actually execute their rulings? If you say so, I will believe you, but I wasn't so sure about that. After all, a president obviously cannot be indicted (which is a weird and to me dangerous rule to begin with).

You bring up some good points with regards to the judiciary enforcing its rulings and the indictment.

For the first, if Congress issues a subpoena, and it is ignored/defied by the executive, and then the courts also say the executive must comply and they defy that order, who does enforce the decision? The answer there is those two branches via impeachment (Chief Justice oversees the impeachment proceedings). High crimes and misdemeanors, which are grounds for impeachment, includes defying the these decisions: http://constitution.org/cmt/high_crimes.htm

Now, what if the executive doesn't leave office upon the decision by the Senate? Then we have a good ol' fashioned constitutional crisis on our hands.

As for the indictment issue, that is indeed a weird and dangerous rule, and one that has been written by the DoJ. It's not in the Constitution and it hasn't been tested in the courts. The DoJ rule could indeed be deemed erroneous if it were to hit the courts.

[Dill]

(05-24-2019, 06:18 PM)hollodero Wrote: Yeah I get the system, ours is almost the same, minus the fact that the chief executive has such broad powers to overrule and claim privileges. But right now Trump seems to bet on the fact that the executive branch - and hence, he himself - beats all others if need be. It kinda worked already with the legislative branch (their subpoenas fell flat already, and no congress police arrested anyone for that), it's now up to the courts, and can they actually execute their rulings? If you say so, I will believe you, but I wasn't so sure about that. After all, a president obviously cannot be indicted (which is a weird and to me dangerous rule to begin with).

You've gotten good info from Benton, Fred and Bels.

A couple more points.

1. Nixon did invoke executive privilege. The courts ruled he could not invoke it to protect himself against investigation. 

2. There is enough evidence for a criminal indictment of Trump. That a president cannot be criminally indicted is only a policy, a kind of guideline at the moment. But this is a fluid situation, rapidly building to crisis. Trump has already met the Nixon bar for impeachment (obstruction, lying) but he is carrying his obstruction a step further, by setting the DOJ to go after his "enemies."  This may be enough pressure to push that policy to a court challenge.

3. This is different from 1974, when so many Republicans were still invested in rule of law and the system of checks and balances. Nixon did not have a Barr or Fox News "alternative facts." The autonomy of the DOJ is gone. Now the fundamental problem is not Trump or Congress, but that 40% who support Trump no matter what and dismiss legal forms and reasoning.

Fired by belief that surveillance of foreign actors interacting with the Trump campaign was a "coup attempt" on the part of Dems and FBI and CIA working together, it is this base, not the law, which make impeachment difficult or impossible at the moment.  Mass group think is the "weakness" in the US system--tens of millions who believe Mueller proved "no obstruction" and shut out the failing NYT's reports to the contrary. 

Tens of millions who believe that defending Trump is defending democracy and the nation against TREASON.