Then-President Donald Trump and then-Vice President Mike Pence are pictured in 2020.
Mandel Ngan/AFP via Getty Images
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Mandel Ngan/AFP via Getty Images
Then-President Donald Trump and then-Vice President Mike Pence are pictured in 2020.
Mandel Ngan/AFP via Getty Images
The subpoena of former Vice President Mike Pence by the Justice Department could set up a showdown over executive privilege.
Former President Donald Trump has repeatedly invoked legal protection to block testimony from allies and subpoenas related to the January 6, 2021 attack on the US Capitol. He could do it again in response to Pence’s subpoena.
Pence’s role in chairing the election certification process made him a central figure in the Jan. 6 proceedings. In the days and hours leading up to the mob attack on Capitol Hill, Trump put his vice president under intense pressure to overturn the 2020 election results. Pence was also present at several critical meetings with Trump. and its allies before January 6.
There are not many known details about the subpoena issued to Pence by Jack Smith, the special counsel appointed late last year by Attorney General Merrick Garland. Smith is investigating Trump’s role in the Jan. 6 attack, as well as the former president’s handling of classified documents.
What is executive privilege?
Executive privilege is a legal protection for the President of the United States that allows him to protect some of his private communications from Congress and the courts.
“At its core is the idea that certain documents and information — if released — would harm, harm the public interest, or harm the country in some way,” Jonathan explained. Shaub, a former Department of Justice official who is now a professor. at the University of Kentucky College of Law.
In theory, the protection allows a president’s advisers to give candid advice without fear of public disclosure, making the president’s deliberations more productive, legal experts have explained.
Executive privilege is not explicitly stated in the Constitution. Instead, it derives implicitly from Article II, describing executive power and the separation of powers.
The idea dates back to the Nixon administration, when a special prosecutor leading the Watergate break-in investigation subpoenaed President Richard Nixon to obtain tapes and transcripts of conversations related to the break-in.
Nixon refused, and the case went to the Supreme Court. Eventually Nixon lost and was forced to hand over the tapes (after which he resigned).
What are the limits of executive privilege?
Although the court ruled against Nixon, it ultimately found that there is a privacy interest in communications between a president and his most senior advisers. But, the court clarified, there is a very clear limit: executive privilege does not apply when the communications are relevant to a criminal investigation.
For example, in Nixon’s case, the Supreme Court found a compelling interest in the criminal case against the Watergate burglars because there was a “manifest and specific need for evidence in an ongoing criminal trial.”
Otherwise, the limits of the doctrine are a live debate, legal experts said.
“Executive privilege, when it exists, is not absolute. It is always weighed by the courts against the interests served by disclosing the information to the authorities seeking it,” said Jessica Roth, professor of law at Yeshiva University, to NPR last year.
It is also unclear to what extent a former president can claim it. After Nixon left office, Congress attempted to compel him to hand over his presidential records, which he refused to do, citing executive privilege. That case also went to the Supreme Court, which again ruled against him – but left some ambiguity over whether former presidents could assert the privilege in the future.
In practice, most disputes over executive privilege have been resolved by a compromise between those requesting the documents or testimony and those providing it, legal experts said.
How did it go with regards to January 6?
Trump has repeatedly argued before that his Jan. 6-related communications were privileged. These claims have not always been successful.
The issue was raised several times during the House committee’s investigation into the Jan. 6 attack on the Capitol. The committee subpoenaed numerous aides and advisers to Trump, several of whom declined to testify on the basis of executive privilege. (The DOJ brought criminal charges against two of those advisers: One, Steve Bannon, was found in contempt of Congress after he refused to testify. The contempt case against another, Peter Navarro, is expected later this year.)
Trump has also tried to sue House Select Committee leaders and the National Archives to block the release of documents related to Jan. 6, but a court ruled against him last year.
The former president also tried to use executive privilege to block testimony before a federal grand jury, but those efforts were less successful, the New York Times reported.
A subpoena issued by the Justice Department is harder to ignore, said Victoria Nourse, a former DOJ official who also served as chief counsel to the Vice President of the United States under the Vice President of the United States. time, Joe Biden. Congressional subpoenas can lack teeth because the process for a judge to enforce them can be slow, she explained.
What could happen next?
As a former vice president, Pence himself cannot claim executive privilege. That power belongs to the executive – in other words, Trump. That’s notable, as the two haven’t had the smoothest relationship when it comes to the events of January 6.
“Usually a vice president will ask the president to grant him executive privilege and announce it,” mentioned Nourse, who’s now a lecturer at Georgetown Regulation. “In that case, it would be a question in itself: whether Trump will do this for Pence. »
If Trump decides to assert executive privilege, a battle in court could ensue. “There is no executive privilege for a crime, so the question is how far do they want to go and do they want a judge to try it,” she mentioned.
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