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Howdy, everybody.
I'm just staring at this subpoena on my desk that I'm going to ignore because I don't care about the rule of law.
This is Chuck.
It's Saturday.
And from October 2019, we are replaying this episode about subpoenas.
It's called What's the Deal with Subpoenas?
Or as Jerry Seinfeld might say, what's the deal with subpoenas?
That's my best Jerry Seinfeld.
I hope you enjoyed it.
Welcome to stuff.
You should know.
A production of iheart radio.
Hey, and welcome to the podcast.
I'm josh clark and there's charles w chuck bryant and there's jerry jerome rowland over there.
Uh, the legal eagles of podcasting.
Ooh, can I be Daryl Hannah?
Yes, I call Barbara Hershey.
I don't think so.
Who was it?
Oh, Legal Eagles.
I know Deborah Winger.
Yes.
Was Daryl Hannah even in that?
Yeah, she was the client of Deborah Winger.
Okay, and you're not Redford?
No.
I always have to be Redford.
Everybody's always like, that guy's a regular Robert Redford.
He'll play him in this scenario.
Right.
That's the street chatter.
Yeah.
Can I still be Barbara Hershey even though she wasn't in the movie?
Sure.
I think I'm thinking of Beaches.
Oh, well, that means I get to be Bette Midler.
Right.
I wonder how many Pod Save America listeners we just lost, who just casually decided to give us a chance.
I want to learn about subpoenas.
Right.
Before we get going though, can we quickly thank the cities of Orlando and greater Orlando and Florida and New Orleans and greater Louisiana.
Yes.
For two fun live shows?
Yeah, those were a lot of fun.
Let's see, we did Orlando on October 9th, I think, and then the 10th for New Orleans.
Regardless, it was night back-to-back, two fun-filled nights, and they were just both amazing shows.
Yeah, and when this comes out, I think New York will have been over.
So thank you, New York.
Oh, yeah.
We presume it's going to have been a great time, that three-night run at the Bell House.
They're always great there.
Yeah, and that's it, too.
That's it for us for the year, Chuck.
So, I mean, thank you to everybody who came out to see our shows this year.
Yeah, can we go ahead and tease our—
Our January schedule, or should we not?
I think we can, sure.
All right.
Well, we're hoping to be back at SketchFest again.
And then what did we settle on?
I don't know if settling is the right way to put it, but we decided to do Seattle.
We're doing Seattle.
Oh, we are?
Yeah.
And normally for a January swing, we do Portland, Seattle, SketchFest.
Right.
Well, we've got the iHeart Radio Awards in there in Los Angeles and we just, you know, kind of have to go to that.
No, sorry, the iHeart Podcast Awards.
They don't care about us at all at the radio awards.
No, we can't even get in that building.
Right, exactly.
So we said okay well, we got to pull out one of our shows because we're old men and we just can't spend that much time on the road.
So instead, we're going to take Portland and put it with another town In the spring.
So don't worry, Portland.
We will be out there.
Maybe the Couve.
That's the talk.
That's the chatter around town.
But we have no dates confirmed yet.
But just look for us again in the Pacific Northwest at the beginning of the year.
That's a much better way to put it.
Yeah.
So do you want to talk about subpoenas?
You got any other housekeeping to do?
I don't think so.
Subpoenas.
Weird spelling.
Well, yeah, so I looked up the word.
Subpoena is actually two words.
It means under penalty.
Blah, blah, blah.
Yeah, I was thinking all I could think about was really dirty, dark stuff.
Oh, yeah.
Yeah, so I just let you fill in the blah, blah, blah.
But anyway, under penalty of whatever, you need to do one of two things.
And there are two types of subpoenas that everybody you know, everybody hears.
Subpoena, you think, like law and order.
Maybe visions of Central Park run through your head because that's your only exposure to Central Park is from Law & Order.
Yeah, or you think of the US government, because a lot of this is going to be about congressional subpoenas, because that's really the juiciest subpoena.
Yeah, it's not like it's new that Congress has just recently started issuing subpoenas.
It's new in the conscious of America in this age, this generation.
I mean, it's been going on for a while.
But normally when people think subpoenas until like basically 2017 16 18, not necessarily in that order.
Most people thought of courtroom subpoenas, and that is typically the subpoena most people are ever going to come up against in their lifetime.
That's right.
But you mentioned the two types.
Do you want to break out your Latin, or shall I?
You take the first.
I'll take the second.
Oh, okay.
The first one's easy.
The first one is subpoena ad testificandum.
Wow.
Did you see that?
You just made a mouse appear and run out of the room.
The next one.
So sorry.
The first one, the one you just said.
That means you got to come to court.
You just nailed it.
Yeah.
It says that you have to come and testify.
And you might not be a party to the lawsuit.
Like this is it can be a civil case or a criminal case.
It's a big thing to point out.
But basically it's saying you have some information.
You witnessed an act.
You overheard a conversation.
The defendant confessed something to you.
We need you to come to court and tell your story.
And that's what that first subpoena is saying to do.
Yeah, and not necessarily court-court, but it can be any kind of legal authority.
Yeah, it could be a deposition.
It could be an arbitration.
But typically it's the authority of a court of law to basically say we're going to levy a fine against you or we're going to arrest you and put you in jail if you don't listen.
That's used to kind of enforce subpoenas.
That's right.
So the second one is the subpoena deuces tecum.
Hey, nice.
Thank you.
And that is basically saying, hey, you have a document.
You have a hair sample.
You have some sort of bodily fluids we want to get our hands on.
You have a computer.
Secret tapes?
Yeah.
Or a computer hard drive.
Yeah.
You know, something like that, that we want you to produce because we want to use it as evidence.
And there's a really important point to put here.
Like a court is saying – a court or an official of the court or of the government is saying –
We want you to do this because we have this lawsuit going on and you have something we need.
But it's not necessarily the judge saying it.
The judge is signing off on it.
It's really a lawyer for one side or the other saying hey, I heard that this person has this secret tape and I need to get my hands on it.
Judge, can you order this person to bring it to me so that I can enter it into evidence?
And then the judge says speak to my clerk.
And then the clerk of the – usually the clerk of the judge who's handling that case.
They say talk to the hand?
Yeah, and they'll generally issue it on like official court letterhead and official documentation.
It's not like the judge is washing their hands of it necessarily.
Right.
No no, I'm sure, like if they do something egregiously wrong, the judge is going to hear about it and punish them.
That's right.
And then it's served, usually in person, kind of you know handed to you, like on the TV shows and in the movies.
Yeah, either by a sheriff's deputy or a process server.
Yeah, but not always.
It depends on if it's congressional or if it's, you know, civil, regular Joe Schmo stuff.
Yeah, well, yeah, for sure.
But I think even if it is regular civil Joe Schmo stuff, you can still go hire the sheriff's department to serve papers, to serve a subpoena.
Oh, for sure.
I think the congressional ones are not served by a sheriff.
Oh, I see.
Who do they use?
I think it depends.
It could – I mean the way congressional subpoenas work is all sort of dependent on the individual committee that's seeking that subpoena.
So they all have their own individual rules – about whether you need a majority vote to even get a subpoena, or whether the chair of that committee has the power to grant or request a subpoena.
Right.
I've read some of them know that it's a real downer to get a subpoena.
So some congressional committees use that mascot from the 1984 Olympics the eagle to come issue your papers to you.
I don't remember that one.
You don't remember that eagle?
No.
It was just like a cartoon eagle from 1984.
Yeah, I mean, I can't get past the Atlanta Olympics mascot.
That's why I can't get back to 1984.
Was it What's It or Who's It?
Oh, I don't even know.
It was one of those two.
What was that thing?
I don't know.
It was a last-minute thing.
What was the name?
It was What's It or Who's It.
Was it?
Yes.
Yes.
Man, it was bad.
I was out of town.
I fled.
You didn't miss anything.
But I do remember watching the opening, whatever they're called, the opening games.
Ceremonies.
Opening ceremonies.
Right.
And seeing the stainless steel pickup trucks driving around and just thinking, oh, boy.
Yeah, and for those of you who are like, they've talked about this before.
We have.
Yeah, we have, and we're still that upset about it.
We'll talk about it again in five more years.
We haven't forgotten.
Yeah, stainless steel pickup trucks.
They haunt me.
I have dreams about those trucks.
Yeah, they're just circling you, playing Striper at the loudest possible volume.
Oh, man.
Okay, so we've got different kinds of subpoenas, but both of them apply to either courts of law or Congress.
So there's one big question that most people who get a subpoena ask themselves the moment they're served the paper, and that is can I ignore this thing?
Do I have to do this?
Right.
What happens to me if I just pretend like I never got this?
And that's really tough to do.
I was reading about process servers.
And the people who are issuing the subpoena, or the lawyer who's asking for the subpoena, say they want some sort of proof that says you got that paper.
So they have to – there's like certain rules and regulations to serving somebody with a subpoena.
So it's really difficult to pretend like you're not, like you didn't get it.
And a lot of people actually go to a tremendous amount of trouble to avoid being served a subpoena.
They will, like, move around.
They will pretend they're not home.
They won't let anyone else answer the door because in some states you can leave it with a competent 13-year-old or 18-year-old.
They'll stick their hands in their ears and go la-la-la-la-la-la.
Right, exactly.
They'll do a lot of stuff to keep from being served.
But that's actually – it will just delay being served.
In the long run, you will still – there's other remedies they can use.
They can mail it to your house certified mail.
And if the mail person says this was dropped off, they made it to their house, that's enough.
Or if you can say –
I took the numbers off my mailbox.
What are you going to do now, chump?
They can actually post an ad in the local legal org in the newspaper and then that will be considered serving you.
So either way, you're going to end up being considered to have received the subpoena eventually.
And if you do, you probably shouldn't ignore it.
Yeah, I mean it says here in this article, which most of this is from the HowStuffWorks article about subpoenas.
But it says, you know, it's a lot easier if you just go or produce the documents.
But as we'll cover here in a lot of this congressional oversight stuff, that is not the route that people take generally in government.
Yeah, and I thought it was kind of an oversight to not say like.
But also if somebody serves you with a subpoena like go.
You don't necessarily have to hire a lawyer, but at least consult with one.
Like, get some legal advice.
Say, this is what I got.
You know, what should I do with this?
Is this?
You know there's a lot of questions that you should have answered before you just act on a subpoena.
Yeah.
Yeah, and when it comes to ignoring subpoenas – and that's what a lot of this will be about is what's going on with our government right now and previously, and what happens if you defy Congress.
And is there any accountability for that or can you just sit on your hands and say nope?
But there have been some very famous – cases in the past, you know 15 years or so, where subpoenas have been ignored starting – well, not starting with, but we can start with Eric Holder, attorney general for Barack Obama.
Yeah, that was a big one.
That was part of the Operation Fast and Furious campaign.
Scandal.
Scandal?
Yeah, it was definitely a scandal.
It, um it.
From what I remember, it involved like secret gun sales or some guns were like let out into the community to be traced to see who they went to.
And one of them ended up being used to murder an ICE officer, I believe.
Well, Attorney General Eric Holder refused under direction of Obama to, uh, answer that subpoena.
And he became the first sitting cabinet member to be voted in contempt of Congress.
Oh, is that right?
Yeah.
And, you know, you're like, oh, what happens then?
Well, three and a half years later, a judge ruled that he did not have the right to defy Congress.
And by that time, there was a new Congress and it was a moot point.
That's a really big big thing to remember is like a contempt of Congress vote, where you are supposedly in trouble for ignoring a subpoena only lasts as long as that session of Congress.
Unless the next session of Congress wants to pick it up.
Yes, but then they have to hold another vote.
And the chances that there has been a change in leadership potentially in that Congress is high enough that if you make it through that Congress – going into recess you're probably going to get away with it.
And I mean, that's par for the course.
It wasn't just Eric Holder who got away with it.
Harriet Myers, who was a White House counsel to George W Bush.
There was like a mass political firing of US attorneys.
Yeah.
And 2008.
Yep.
And she and, I think, chief of staff at the time, Joshua Bolton, were both held in contempt of Congress.
And man, if you look up like, you know, follow up reporting on this stuff, it's like, you know, while it's going on, they're like they could face fire. fines and jail time and finally i found some follow-up it was like nothing nothing happened absolutely nothing happened there was no legal ramifications there were no personal ramifications there was nothing happened whatsoever for to harriet myers or joshua bolton or eric holder for just saying congress the united states congress go sit on it Yeah.
Which is essentially what you're saying when you ignore a subpoena.
Yeah.
And because of this you remember Representative Daryl Issa, probably by name.
He was involved in trying to get Eric Holder, you know, in the room.
And he was so mad.
He sponsored or intro to bill to strengthen subpoena enforcement power.
And it died in the Senate.
And before we I think we're about to take a break.
Before we do that though, we should mention that currently, White House counsel Don McGahn has refused to testify or refused to answer his subpoena under direct order of Trump.
And right now he's being sued by the House as of August.
And he in particular provides an unusual situation because, at least with Harriet Meyers or with Joshua Bolton or with Eric Holder, When they were directed by the president at the time not to submit to that subpoena from Congress, they were part of the president's staff.
Don McGahn was instructed not to cooperate with the subpoena after he had already left civil service.
He was no longer part of the executive branch.
So that definitely makes it unusual.
But if you're sitting there and your head is popping and you're saying, wait, how?
This is Congress.
How can the president just say, just ignore that subpoena and people get away with it?
There's actually a lot of case law that's been built over the centuries that kind of establishes that.
And I say, Chuck, we take a break and then we'll dive into that after this.
Case law.
Joshua and Charles, stuff you should know.
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So Chuck, there's something about subpoenas, whether they're issued by Congress or by a court of law.
When you get them, a lot of people don't realize they're negotiable.
Yeah.
That's one really big reason to hire a lawyer is because it may be overly broad.
It may be kind of a fishing expedition.
It may put you at risk to come forward and give this testimony or to hand over these documents.
And if you hire a lawyer and say hey, these are the things I'm worried about, they can go and argue to the judge like hey, how about we just limit this subpoena to these documents rather than everything on my client's hard drive?
Or it's really a big hardship for my client to make it here.
And the 15 a day that the court's paying him for coming to testify isn't actually going to cover it.
So, you know, can we negotiate a higher fee or something like that?
There's a lot of stuff that can be done.
But this is a tactic that's also used with congressional subpoenas too, where say, like the executive branch will go –.
I think that this is a little overly broad, but maybe we could give you this document.
Will that satisfy you?
And then they go, nope.
Sometimes they say yes, though.
And part of that negotiation comes out of this subpoena process.
It's a response to it.
But none of it would have any effect whatsoever if Congress didn't have any redress for enforcing its subpoenas if somebody ignores it.
Yeah, I mean, technically there are fines and jail time sort of looming.
But the more I read about this stuff, especially when it comes to congressional oversight, the more it became clear that none of that stuff really happens.
It's all just dangled out there as a means to negotiate something with each other over a pretty long period of time usually.
For sure.
Yeah, the Eric Holder thing was it was like four years before he finally handed over the file.
And I think Congress had already gone out of session, you said.
And it was basically just the whole thing had died down, which I think is basically the stalling tactic that people ignore.
Subpoenas for.
Like that's why they're doing it.
Yeah.
So technically, if you defy Congress, the committee that issued that subpoena is going to vote to issue a citation, a contempt citation, and then it's got to go to the full chamber to vote on it.
And if that goes through and it passes, which it has before, then there are three basic ways that you can prosecute that charge.
Right.
And each one is –
Worthless?
Yeah, pretty much.
We would never give official legal advice, first of all because we're not lawyers or even trained as lawyers.
But from what I can tell, there's just nothing happens to you if you ignore a congressional subpoena.
But most people respond to it because I feel like the further down the food chain you are, the more likely Congress is to do something in retaliation to you.
Yeah, well, let's go through the three at least.
Fine.
If for no other reason than pure folly.
So if they vote and that contempt citation goes through, it is then – under the control of the executive branch.
And you think, oh, great, the president.
Or, oh, great, the president.
It's really neither.
It's the Justice Department, which is part of the executive branch.
It's up to them to decide whether or not they're going to prosecute criminally.
And they're going to say no.
They're going to say and we'll talk a lot about executive privilege coming up, but they'll usually cite that and decline to prosecute, basically kind of saying you know what, we don't get involved in this stuff.
Right.
So that is specifically when it comes to subpoenaing something from the White House.
Correct.
Or the executive branch.
Now, if Congress is being ignored by say, like the owner of the Houston Astros, They can go to the DOJ and say hey, the Houston Astros baseball team owner is ignoring a subpoena.
We want you to go after the guy.
And they'll go after the guy.
It's when it's executive privilege that's being cited that the DOJ says you know how?
It's our jurisdiction to decide whether to prosecute this stuff.
We're going to decline to do that because it's our own people.
And we're just going to consider this an internal executive branch matter.
Number two is the civil judgment.
Right.
And that's when you need the courts to basically enforce this.
Go into court and saying we need your help to enforce this civil suit against somebody who's stiffed us.
Right, like you know how you can go arrest somebody and put them in jail?
Can you do that on our behalf, basically?
But this is super slow, like turtle-like slow.
Yeah, but I think the idea is that the thought that maybe somewhere a couple years down the line—
There's going to be a judgment against you where you're going to have to pay 100000 to Congress or something like that, or spend like 12 months in jail.
We'll get you to the table to negotiate what documents they actually want or what testimony they want.
Yeah, it's just leverage.
Right.
So the third one is something that isn't used anymore really.
It's called inherent contempt power.
It was last used in 1935.
And this is sort of the jail thing.
And while there is no capital jail, they do have a holding cell.
Yeah, and like the sergeant at arms of the Senate or the House, depending on who's issuing the subpoena and who voted to hold you in contempt an armed officer of the Congress will show up and say you're under arrest.
Congress says you're under arrest.
You have to come with me.
Or, as has been kind of bounced around lately by –
Democrats in the House, replacing the idea of jailing somebody, of arresting and jailing them with a much, much stiffer fine than people have traditionally faced.
Something more on the order of, I think, between $25,000 and $250,000.
I think a day actually for ignoring this kind of stuff, which I would guess that would get people moving if they actually go through with that.
Yeah, I would think so.
Hit them in the pocketbook.
Yeah.
I mean, that hard.
And plus, it's the government, too.
So it's like, hey, you know, these tax credits you're getting, we're taking those away.
And this tax return that you were expecting, we're going to hang on to that.
Like, this is where they could actually do something.
Yeah.
I think.
So if it's not a congressional subpoena, if it's just like we're talking about a regular court subpoena, it all depends on what jurisdiction you're in and the presiding judge that's on that case.
Yes.
But again, because you can be arrested as a matter of routine course of a court, you really should respond at least to a subpoena, or else the chances of something happening to you from a court of law are much higher than Congress, apparently.
Sure.
Can we talk about case law?
Yes, finally.
We got all that boring stuff out of the way.
Yeah, this first one is kind of interesting.
And the way the judiciary works in this country is just super fascinating to me.
The older I get, the more I read about it.
I'm not becoming a legal wonk by any means.
A legal eagle?
But I get it.
Like, you know, I get it that people are super into this kind of thing.
I hadn't realized you'd gotten into the judiciary.
Yeah.
I think it's pretty fascinating.
What got you into it?
Just like news, following the news or something?
Yeah.
And just sort of reading about a case, like in this case from 1800, and then you know precedent and what that means.
Right.
And when it shouldn't matter and should matter.
Like the one from 1800 you're talking about is USV Cooper?
Yeah, Thomas Cooper, who was a scientist and an attorney and a thorn in the side of President John Adams.
Right.
In a big way.
Yeah, so in I think 1798 yeah, the US passed the Sedition Act which said that it's illegal to criticize the US government.
Yeah.
Unfortunately, when Thomas Jefferson came into office, he said we're going to kind of do away with that and keep it away forever, as much as we can.
But—
There was a guy named Thomas Cooper who, like you said, was a thorn in the side of John Adams.
And he was arrested and prosecuted during a time when the Sedition Act was still in effect.
And he lost his case.
But the way that it relates to subpoenas and ignoring subpoenas and specifically the executive branch ignoring subpoenas is that all the way back in 1800 when the United States was – just a couple of decades old this guy, Thomas Cooper, tried to subpoena John Adams to come testify as part of this case.
And the court said, we don't really subpoena presidents, we've decided.
Yeah.
And that set a precedent for the rest of history.
It basically said presidents are accepted from the goings-on in normal court stuff.
Even when they're directly related to the case, they don't have to come.
Right, but that same case said, but you can subpoena someone from Congress.
That's a big one too.
That was a big one.
It didn't work out for Cooper, like you said.
He was convicted.
So none of that mattered except for establishing this precedent.
Precedent?
Precedent.
You got it.
In this case, you could say it either way.
I guess so.
So that moves us on to seven years later, U.S. v. Burr.
This is John Marshall, Chief Justice John Marshall headed this one up.
And basically this had to deal with President Thomas Jefferson saying hey, they want you to come to provide these documents.
It was a Deuces Tecum.
Right.
Deuces?
Deuces?
Deuces.
Deuces Tecum.
And Jefferson was like... hey, here are some of those documents that you want.
And they're like, but where are the rest of them?
He was like, you know, I'm not going to give you those.
And I'm also not going to show up because you know what?
I got to be presidenting.
Yeah, the executive branch is too powerful and too, or no, too important.
It's the only branch that's supposed to be open 24-7, 365.
Yeah.
And I just can't get away.
Like, my work is too important to come be part of this.
And that gets...
I think it's less and less able to prove these days, I think.
Yeah, for sure.
Like, you could take off a half a day.
Right.
You've got a BlackBerry.
You can definitely email, keep tabs on work while you're gone.
But, yeah, I thought the same thing, too, that it does not hold water.
But it does set a precedent for the president, like you were saying, too.
And those two cases basically say together that again the president doesn't have to come be part of this.
And executive privilege is, I guess, where this came from, from this particular case where it's saying like no, the president doesn't have to have anything to do with this and the president's documents or the president's business and can't be subpoenaed because we're going to call this executive privilege.
Right.
And there are five, basically five types generally of executive privilege that have been used thus far.
One is presidential communications.
Number two is the deliberative process.
Number three is attorney-client communications, big one.
Fourth one is law enforcement investigations.
And the fifth one is anything that's sensitive in terms of military or national security or diplomatic relations, that kind of thing.
And that's the one in particular that has been upheld over the years is the idea that, like there are secrets that the White House has that just need to be kept, or else people are going to lose their lives or else diplomatic ties are going to be upset, that kind of stuff.
And so those should be protected under executive privilege.
But the rest of the stuff has been subject to scrutiny, right? over the years for sure.
Yeah, because obviously an executive president is going to try and draw that privilege as broadly as possible.
Oh, yeah, for sure.
And that's especially been the case ever since Nixon onward at least, where there's this idea called the unitary executive theory, which is basically, like you know, these are separate branches of government and the executive branch is in charge of everything to do with the executive branch.
It's none of Congress's business and the executive— is basically this extraordinarily powerful single person.
And that's been attempted to be invoked and proved time and time again, in throwing off congressional oversight.
And that seems to be kind of.
What we're in the midst of right now is a really big test of this unitary executive theory.
Yeah.
And saying like, no, not only just the president, but the entire president's staff.
And in fact the entire executive branch can ignore subpoenas from Congress, because Congress doesn't have any authority over the executive branch.
And that's kind of what we're witnessing right now.
And on the one hand well, there's really just one hand the great value of having an executive branch.
Like almost a well.
A unitary executive is that if you're a vested interest or a very powerful group, you've only got one person to change over to your side, rather than 500 of them.
You know what I mean?
Yeah.
So it's very dangerous.
It also very much flies in the face of the three branches of government and the checks and balances that each one's supposed to have over the other.
Yes.
Because part of Congress's role is what's called congressional oversight.
Yep.
That says...
We're responsible for making sure you're not getting out of control.
The president, the executive branch, has veto power saying, Congress, you guys are nuts.
This is no law that should be passed.
I'm going to say no to this law.
And then the judiciary has judicial review.
They get to say this law is unjust or this executive agency's action is illegal.
And by doing this, these three branches keep one another from getting too strong.
And the unitary executive theory flies in the face of that and says nope, the executive branch is more powerful than all of them.
The other two don't have checks over them.
And let's just see what happens from here.
That's right.
Should we talk about Watergate?
Yeah.
So everyone, we should do a full episode on Watergate.
I think I've said that before.
I agree.
But everyone knows what happened there.
President Nixon was involved in some hinky activities.
And congressional committees.
There was one special prosecutor in particular named Archibald Cox who said wait a minute.
You've got these secret tapes.
You've been taping people in the Oval Office.
Turn them over.
Here's a subpoena.
We demand that you turn that over along with some other stuff.
And Nixon said, you demand?
Yeah.
And we want you to come here and testify as well.
And, of course, Nixon was like, I don't think that stuff's going to happen.
Here you go.
Here are some of these tapes.
Just ignore all the parts where it seems like it was heavily edited and sounds real funny, because someone who was just in the room is no longer in the room.
And there are non sequiturs all over the place.
It's like that videotape of the guy who got the high score in Donkey Kong.
Right.
Yeah.
You know what I mean?
But executive privilege was what he claimed he was protected by.
So this went to the Supreme Court in 1974 with United States v. Nixon.
Hmm.
And Chief Justice Berger's opinion cited everything from Justice Marshall's, Marbury v Madison, to the one we just talked about, United States v Burr.
And basically—
They're walking a fine line there with the judiciary because they're saying listen, the president needs to be confidential and protected when executing these duties, these constitutional duties, on the one hand.
But on the other hand, due process of law is an important thing, and that's what we're in charge of.
So they kind of ended up wanting to protect each of the branch's needs, it seems like.
Yeah, and I think they did a very good job.
And the fact that it was unanimous, I think Rehnquist was involved with some of the people involved.
So he recused himself from voting, but it was unanimous eight to zero vote saying nope, you got to hand the tapes over because we don't think that you're just trying to protect, like intelligence secrets, or military secrets, or diplomatic secrets.
We think you're just basically using the cover of executive privilege to cover your own behind.
And that does not supersede due process in a court of law which is going on over here with, you know, the trials of these guys who broke into the Watergate trial.
So you got to hand over the tapes.
And in doing so, like you said, he cited another case, Marbury v. Madison.
And that's a really, really important case in here too, which I think we should talk about, starting now.
Yeah.
Well, I wanted to mention another quick thing before we dive into Marbury.
Another case, US v ATT.
This just basically laid out that the courts are only going to get involved if everyone really tried in good faith to work it out beforehand.
So like basically said, we're the last stop here.
Don't just go run into the Supreme Court or the courts in general to figure this stuff out for you.
Right.
Although I think the Constitution says that the Supreme Court are the ones who are supposed to be running the show when it comes to, like a high enough official, a case regarding a high enough official.
Oh, yeah.
All ATT case said was you have to really try to work it out amongst yourself before it even gets to us.
Oh, gotcha.
OK.
Yeah, I gotcha.
I see.
I see what you're saying.
Yep.
Yep.
But good faith, of course, is broadly defined too.
So in Marbury v. Madison, that one basically said, hey, there's this one component here.
Yes, we've established that the legislative branch—
Congress can issue subpoenas and that the executive branch can exert executive privilege and say no to some subpoenas under some cases.
But we're also going to say in US v Nixon in 1974 that the court can say no, your right to secrecy is overshadowed by a right to due process in most cases.
But the one that really says at the center of this is the judiciary and that the judiciary has a right to decide cases where the legislative and executive branches are in dispute.
Is this Marbury v Madison case from, I think, 1804?
And it was, from what I understand, a masterstroke of legal eagleness.
Yeah.
By Justice John Marshall.
Yeah.
So it's the long and short of that one that that Secretary of State, James Madison, he was trying to withhold the commission of William Marbury.
Was that the case?
Yeah, because the outgoing Adams had packed the courts with friendly judges.
Right.
The commissions had not all been mailed out and Madison was withholding some.
And they basically said, listen, man, you can't do this.
Like, it is your job.
You shall commission all the officers of the United States.
It's like right there in black and white, and you lose.
Right.
So that was one part of it.
But what Marshall figured out, and what made this a masterstroke of legal legalness, is that there was something called a writ of mandamus, which basically says you have to do this, which had been granted to the Supreme Court in the like an act in 1789.
Marshall said, so, yes, Madison has to give this over like this is just part of his duties.
And he's following a law that Congress made.
So he's subject to that law as a minister of the government.
But, at the same time, the writ of mandamus power that the Supreme Court has been given is unconstitutional.
We're not in a position to issue a writ of mandamus because under the Constitution, we're not given that right.
And so, in doing that, he established the Supreme Court as the interpreter of what law is constitutional and what isn't.
And he did that by saying this law that gives us this amazing power is unconstitutional.
So he did it by taking power away from the Supreme Court.
But in doing so he gave the Supreme Court a tremendous advantage over the centuries in interpreting what law is constitutional and what isn't, and placing itself as the arbiter of disputes between the legislative branch and the executive branch.
Yeah, which is, I mean, that's a lot of what the Supreme Court decides is constitutionality.
And it all comes from that 1804 case.
Landmark.
Legal, legal.
Should we take another break?
Sure, man.
All right, we'll take another break and talk a little bit more about Nixon and what some other presidents have done.
When slapped with a subpoena right after this with Joshua and Charles Stuff, you should.
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Stuff you should know.
So we all know what happened to Nixon.
What?
The justice did rule that, hey, dude, you got to comply with this deuces tectum here.
And you got to turn over these tapes.
So Nixon turned over tapes.
He did, and it all worked out in the end.
Everybody was like, this is what you were predicting?
This is fine, man.
Stay president for a couple more terms.
And he did, and the world was a better place for it.
That's right.
Flash forward to Bill Clinton.
That was okay.
So he said, hey, listen, man, what goes on?
That was much better.
What happens in the Oval Office stays in the Oval Office.
Executive privilege.
They're like, even that stuff?
And he said, well, you know, it's executive privilege.
Hanky Panky falls under executive privilege.
So he said, I have executive immunity.
I have that privilege.
And neither me nor my aides have to respond to these subpoenas.
Right.
And then he fell into line eventually.
Yeah.
Newt Gingrich got him into line.
Well, yeah, and largely because of U.S. v. Nixon, they said, you know what?
You can't stand by this broad executive privilege, stand behind this wall that you've built.
You're going to have to comply, and he did eventually.
Right, which is traditionally what happens.
Like, the Congress issues subpoenas, the executive branch ignores it.
The Congress holds the executive branch in contempt and the judiciary comes in and almost always says no, you're overexerting your executive privilege.
Do what they're saying.
Yeah, which you know.
That gives me hope because in the past precedent has been set that due process wins out over executive privilege.
Kind of across the board it seems like.
But that only holds as long as two things are upheld.
One, that the Supreme Court is an independent body regardless of who appointed the judges.
And then two, as long as the executive branch recognizes the authority of the Supreme Court.
This is where we are starting.
Like some people can see far enough along this horizon that hey, this path we're heading down.
Right now there's a point where we could reach, where there could be a Supreme Court decision that says yes, executive branch, you have to hand over these aids for testimony.
They have to come testify about, you know, Russian interference in the 2016 election, or this call between the president and the Ukrainian president, and the executive branch still says no.
And that is the point that everyone says, we have no idea what happens then.
We have no idea.
Do you go arrest these, you know, the secretary of the treasury?
Do you go arrest these cabinet members?
This has never been done before.
Like, what remedy do you really have?
And that's where we are with testing out this unitary executive theory.
How far can you kick the kind of unwritten rules of the Constitution?
Well, there's lots of written rules of the Constitution, but also, like the unwritten rules and procedures that kind of have failed, guided all of this for so long.
What happens when those things just stop being recognized as valid?
What do you do?
Well, I don't know.
Because in the past, through our history and this is on both sides of the aisle Democrats and Republicans have always not successfully, but they've always tried to argue that courts should not get in these subpoena battles and should not get involved with this executive privilege claim.
Right.
And in particular Trump's latest, Trump's legal counsel's latest position, which I think came out in September of this year, is it's a doozy.
It basically takes and here's here's something we need to remember here.
Like this is not brand new with Donald Trump.
Right?
Like if you can't stand Donald Trump, this is his White House.
His administration is building on stuff that previous presidents have built on both Democrats and Republicans alike.
There has been a real push, basically since Nixon, to instill as much power into the presidency and the executive branch as possible.
And this is an extreme version of that, but it's still kind of following the same path.
But what they're doing is more aggressive than what previous administrations have done.
And they're basically saying this if you subpoena us, the executive branch, if you, the Congress, subpoena one of our people, any of our people, for any reason whatsoever, the president can say no, do not respond to that subpoena.
Do not go before Congress.
Do not hand over those documents.
I'm the president I'm ordering you to.
So Congress can issue a writ of contempt or find the person in contempt.
But that's it.
That's where it ends, because the president can say well, this is an interbranch dispute between the legislative branch and the executive branch.
And because the judiciary can't be drafted or shouldn't be drafted in to solve these disputes – that's all it will remain is an interbranch dispute.
And the Supreme Court really has no purview in deciding these cases.
And when you have that, then that means that the executive branch has been removed from from the oversight of law.
It becomes above the law.
The law no longer applies to it.
And so whatever the president wants to do, whatever the president directs his or her agencies to do, is de facto legal, just because the president and the executive branch are not subject to the laws of the land, including rulings by the highest court in the United States.
That's what the latest argument is setting us up for.
Yeah, I mean, this is what the Justice Department there was a great article in the Washington Post by Harry Lipman called the Justice Department's outlandish and arrogant position on congressional subpoenas.
And this is from the article.
It said.
According to the Justice Department, there is no constitutional or statutory basis for a congressional committee to try to enforce subpoenas in the federal courts where the executive branch has decided not to do so.
Right.
So basically, yeah, they said no.
And so they said no.
And all of this arose from an opinion regarding Trump's tax returns, I believe.
Yeah, that's sort of where the whole thing got started.
Yeah, where the Treasury Secretary Steven Mnuchin said, no, we're not doing that.
And Congress said, well, we're holding you in contempt.
And then the legal office of legal counsel from the White House issued this opinion.
And I mean, it's a doozy, but it's also saying, like, what are you guys going to do?
What can you do?
And that's that's the that's the big question now.
Well, and it makes you wonder what would have happened if Daryl Issa's bill had gone through.
That makes subpoenas super enforceable.
Right.
Because you know, we've seen it again on both sides of the aisle, where one political party will get mad and vote something in that will come back to sting them later on.
Right.
On the hind end.
It is.
But also you also can't help but wonder like is a Republican's loyalty to Congress greater than the Republican's loyalty to the executive branch?
Right.
It's like, you know, in any restaurant, there's tension between the waitstaff and the kitchen staff.
Right.
But they're all working at the same restaurant.
They're all trying to do the same thing, which is get high-quality nourishing meals out to the patrons, who are citizens like you and me, right.
But there's still tension.
You're not doing it fast enough or you burn these fries or something like that.
But we benefit from that tension.
We, the patrons of this restaurant that we call America.
That's right.
And at the end of the day everyone just goes behind the restaurant and smokes a joint by the dumpster.
You know, maybe that would make our Congress or our government work more efficiently if the executive branch and the legislative branch and the judicial branch all got together and burned a doobie together.
By the grease trap.
Right, exactly.
I don't even remember what my analogy was meant to assert.
I'm so sorry.
But it's fine.
But we are witnessing some historical stuff right now that is not normal at all.
I mean, like... from Watergate stuff.
And I'm not even relating to impeachment proceedings.
I'm just saying, like, this level of ignoring congressional subpoenas may be unprecedented.
And if not, then the closest historical precedent we have is the Watergate scandal.
Yeah.
But I think Congress is one recourse to say, that's fine.
That's fine, Mnuchin.
You just ignore us.
We're going over here as Congress and we are altering our ability to jail people to say no, actually we can fine you.
$250,000 a day and we will do it.
That could be the leverage that gets people to actually comply with these subpoenas.
But we'll find out, because if Congress has to actually pass a law to do that, the president has veto power over that.
Well, and there are also all sorts of other things that have nothing to do with this that Congress uses as leverage or negotiation tactics like hey, do you want us to push through some of these appointees, or should we just keep stalling forever?
Right.
All kinds of that stuff is on the table.
When you have a president that comes out in January and says, you know what?
I don't mind.
Stall all you want.
I like the term acting because that gives me more leeway.
Yeah.
Then all of a sudden that's not leverage anymore.
You got anything else?
No.
Very curious to see what happens with this McGahn case.
Probably nothing.
I am too.
Will it be the crumbling of our democracy?
Who knows?
We'll find out in a few years.
If you want to know more about subpoenas, we'll just go look it up.
And if you get a subpoena yourself, get a lawyer.
Don't be stupid.
And since I said don't be stupid, friends, it's time for Listener Mail.
This is about Obama's health care.
I got a bunch of stuff about this.
I didn't realize I made a prediction.
Oh, okay.
Oh, yeah, yeah, yeah.
This one's kind of been sitting in the coffers.
Okay.
Guys, about 15 months ago, I started my journey through the Stuff You Should Know archives.
I've been on a steady campaign about 12 to 16 episodes a week.
That's healthy.
Wow.
Why I'm writing, though.
10 years ago, Chuck made a bold prediction in the Rumors, Myths and Truths Behind Obama's Healthcare Plan episodes.
Didn't we do like four of those?
Yeah, I think we did four.
You're right.
But this one was specifically about that episode.
Chuck, I said, call me in 10 years if there are no more private insurance companies.
Because that was one of the big knocks on it.
It's like, this is going to do away with private insurance.
And I'll buy you a beer.
Chuck legitimately said, I'm on record.
And he extended the bet to anyone out there.
Now, that statement was more of a gentleman's bet than a legal promise.
However, that is more binding in my opinion.
Nonetheless, I would like to congratulate you, Chuck.
I was getting worried there for a second.
On the expiration of that term and that promissory statement.
That could have been a pretty pricey liability if things turned out a little differently.
A million beers, Chuck.
Every single one of our listeners would have written in and asked for it.
I know.
That is from Jack Simmons.
Nice going, Jack.
And welcome to the club.
We're glad you found us and even more so that you like us.
So we'll do our best to keep it up for you and everybody else.
That email's a couple of months old, though.
He's probably forgotten about us already.
That's right.
He's moved on to Pod Save America.
That's right.
Well, if you want to get in touch with us like Jack did, you can go on to StuffYouShouldKnow.com.
Check out our social links there.
You can also send us an email.
Wrap it up, spank it on the bottom, and send it off to StuffPodcast at iHeartRadio.com.
Stuff You Should Know is a production of iHeartRadio.
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