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Thu Jan 18, 2018, 01:49 PM


EXECUTIVE PRIVILEGE -- What you need to know now

This is another great thread by Seth Abramson.

(THREAD) "Executive privilege" is about to become the most important term in U.S. political discourse. This thread—written by an attorney—offers a basic primer in executive privilege that'll help you navigate the Trump-Russia story in the days ahead. I hope you'll read and share.

UNROLLED (only a part -- much longer, do read it!) https://threadreaderapp.com/thread/953458326095974403.html

1/ Because executive privilege only arises in—that is, can only be raised in—unusual circumstances, it hasn't often been litigated in the courts and doesn't even have a firm definition in case law. Usually, the three branches of government find ways to avoid use of the privilege.

2/ The privilege attaches to the executive branch of government, not the judicial or legislative branches. It becomes relevant when Congress wants information from the executive branch or a subpoena has been issued by a judge to get certain information from the executive branch.

3/ Usually, the mere specter of an assertion of executive privilege is enough to send the parties to the negotiating table to work out a way for a smaller stock of information than was originally sought to be given to Congress or a subpoena-issuing judge. It's a negotiating chip.

4/ In the present case—the Trump-Russia probe—it's not clear that executive privilege is going to be a mere negotiating chip, as there is certain information the executive branch (namely its head, Mr. Trump) doesn't want other branches to have access to under any circumstances.

5/ Trump doesn't want the other branches to access this information because it might incriminate him and lead to his impeachment, removal, indictment, prosecution, and incarceration. Specifically, he's afraid certain information could lead to charges of Obstruction or Conspiracy.

6/ With that in mind, there's really no amount of a certain type of information the executive branch is going to allow the judicial branch to subpoena, and that means that, as has only rarely happened before, the issue of executive privilege will come before the Supreme Court.

7/ Executive privilege is an umbrella term for four privileges that may allow the executive branch to refuse to turn over certain documents/testimony: national security privilege, attorney-client privilege, deliberative process privilege and presidential communications privilege.

8/ "Attorney-client privilege" is already reasonably well understood by laypeople—generally speaking, and with only rare exceptions, conversations between attorneys and their clients are confidential unless and until the client (and only the client) agrees to waive the privilege.

9/ National security privilege isn't hard to understand—though in its operation it's complex. Basically, the executive branch can withhold information from Congress or a judicial subpoena if the provision of the information to the party requesting it would harm national security.

10/ In the Trump-Russia case, there may on occasion be claims of attorney-client privilege, but there are unlikely to be many valid assertions of national security privilege—mostly because the probe is about uncovering threats to national security, not exposing NatSec operations.

11/ Attorney-client privilege has already been *fraudulently* raised by the president's son in testimony before Congress. Don Jr. claimed that whenever an attorney is in a room where a conversation is happening, that conversation is privileged for any and all persons in the room.

12/ This is wrong on *every* count: the attorney must be one you've retained; the conversation must generally pertain to the course of representation; it can't involve discussion of future crimes; it can't occur in a situation where you've waived it (e.g., if others are present).

13/ Don Jr. raised attorney-client privilege to hide statements he made to a third party while the third party's lawyer was present—and not only did the nature of the conversation suggest a non-confidential disclosure and a waiver, it's likely future crimes were being discussed.

14/ Don got away with a fraudulent raising of the privilege because the GOP members of the committee he was testifying before allowed it and because he was testifying voluntarily—as opposed to under subpoena—and thus no one could force him to answer questions he didn't want to.

15/ Going forward, we'll see much more questioning under subpoena—that is, Bob Mueller subpoenaing witnesses to a grand jury—so fraudulent claims of attorney-client privilege won't be successful. But we can expect Trump will raise the privilege at every juncture he possibly can.

16/ Trump is most likely to be put in situations in which he can arguably raise attorney-client privilege when it comes to another Trump-Russia witness—White House counsel Don McGahn (Mueller almost certainly wouldn't ask Trump to discuss conversations with his personal lawyers).

17/ The problem for Trump here is that Don McGahn represents the Office of the President, not Trump personally, so only conversations between McGahn and Trump that arise in the context of presidential duties—as opposed to personal actions—are covered by attorney-client privilege.

18/ You may already see why this distinction is likely to lead to some legal battles: was Trump Obstructing Justice to protect himself from future impeachment and indictment a "presidential" or "personal" action? Trump will argue the former, while Mueller will argue the latter.


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Reply EXECUTIVE PRIVILEGE -- What you need to know now (Original post)
RandomAccess Jan 2018 OP
RandomAccess Jan 2018 #1

Response to RandomAccess (Original post)

Thu Jan 18, 2018, 11:14 PM

1. There's some real good stuff in here -- in the full thread


so I hope people will bookmark it if they don't read it now

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