Over the next week or two you are going to hear a great deal about “executive privilege.” But, I suspect you will have a little trouble understanding how it is supposed to apply versus how it is being applied by Trump.
Corey Lewandowski is sitting in front of a committee in the House, as if on a ping pong table. He is getting grilled by half the committee, while the other half – the Republicans, scream about the injustice of it all, and quite effectively.
It is unbelievably regretful that the Mueller report did not establish, with much greater specificity, that they could not go forward with a criminal case against Trump, due – in part – to the lies Mueller noted, and the use of encrypted phones. I say this because the Republicans believe there is nothing to discuss at all, because Mueller found no Russian collusion, and they do not care that Mueller did, apparently, find obstruction of justice. Republicans have no desire to discuss obstruction, they continually bring up that they want to investigate those bastards that started the investigation, Comey and others in the FBI.
Interesting, though, is that with respect to any actual discussions with Trump, Lewandowski has claimed “executive privilege.” This is, in plain terms, utter bullshit.
If executive privilege applies to this matter, it means that every single utterance between a president and anyone, federal employee, White House employee, and even private citizens, is subject to suppression by the president.
Congress can never ask what the president said in any context. Ever.
And that is bad enough, but it goes much deeper.
We in the law grant privileges in situations where as a matter of public policy, we want people to feel protected and immune from court proceedings. Privileges apply to attorneys, doctors, the clergy, and spouses. “Executive privilege” applies only to those situations where we want the president to feel comfortable discussing things during policy meetings among staff. That’s it.
The worst aspect that we know as we go forward, is that all privileges can be waived, and most often, it happens by accident. This is not Corey Lewandowski’s privilege to assert, it is Trump’s and Trump’s alone. Trump waived that privilege by allowing Lewandowski to speak to Mueller at all. Moreover, the White House has allowed Lewandowski to testify in today’s hearing to matters within the actual Mueller report, but no other conversations with Trump.
I cannot for the life of me understand how there is not already a court ruling on this. The matter is as simple as I can imagine. The president has allowed Lewandowski to speak about one conversation, the one in the Mueller report, but not about other conversations. Clearly, Trump has waived the right to assert the privilege.
If we allowed people to pick and choose what conversations might be privileged, effectively allowing people to leave out the “bad stuff.” That is stunning, and offensive.
More later, if I can stomach it.
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