Politics

3 Things to Know About Matthew Whitaker and Executive Privilege

by Kim Wehle
February 8, 2019
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(Chip Somodevilla/Getty Images)

In a fiery hearing today, acting attorney general Matthew Whitaker laid an important card on the table: executive privilege.

Whitaker told House Judiciary Committee chairman Jerry Nadler that “I do not intend to talk about my private conversations with the president of the United States, but to answer your question, I have not talked to the president of the United States about the special counsel’s investigation.”

This testimony came after a series of machinations concerning a possible congressional subpoena of Whitaker, who had been provided written questions beforehand along with a request from Nadler that Whitaker “[p]lease take any steps that may be necessary . . . for the president to determine whether he will invoke executive privilege.”

In the end, Whitaker testified without a subpoena but dodged certain questions citing confidentiality and executive privilege. Most notable was his non-answer to the following question posed by Rep. Sheila Jackson-Lee: “Prior to Attorney General Jeff Sessions’ firing, did you discuss or share your private opinion of the special counsel’s investigation with [then-Chief of Staff John Kelly], Trump family members, and others?”

Whitaker’s refusal to answer her question is important because it calls into question whether or not Trump picked him to temporarily replace Sessions because he, unlike Rod Rosenstein, could be counted on to carry the president’s water concerning the Russia probe.

It seems likely that Congress is going to have many witnesses from the administration testifying about questions that are similarly uncomfortable—and equally likely that many of these witnesses will invoke the shield of executive privilege to avoid answering such questions.

Here are three things to know about executive privilege:

(1) Executive privilege is no end-all-to-be-all. In 1974, the Supreme Court held in United States v. Nixon that a president has a legal duty to turn over evidence of conversations with his advisors when it’s relevant to a criminal trial. Remember: President Nixon made White House audio recordings of his conversations with his closest aides. When slapped with a trial subpoena, he couldn’t hide behind executive privilege.

To be sure, the Nixon case doesn’t mean that a subpoena issued by Congress or a grand jury necessarily carries equal force. But it does mean that a congressional witness’s claim of executive privilege is hardly “game over” when it comes to having to answer touchy questions.

(2) The Constitution says nothing about executive privilege. The notion is that each branch of government must give due respect to the other branches is a concept that arises from the separation of powers but is not explicit in the Constitution.

Executive privilege is also partly about common sense. Deliberations between the president and his advisors should be kept confidential because otherwise people won’t give him the blunt advice he might need.

The same policy rationale underlies the attorney-client privilege: confidential communications about legal advice between an attorney and a client are immune from disclosure—for the most part—because we want people to feel comfortable being honest with their lawyers.

But this protection is not universal. For instance, a client cannot ask an attorney “where’s the best place to hide the dead body” and later claim that such communication is off limits to investigators. There are exceptions to the privilege, for instance, if it’s used to cloak the commission of a crime. Even beyond the Nixon scenario, therefore, courts could recognize additional exceptions to executive privilege, too.

(3) Like almost anything in the law, the rules only matter if they are enforced. Whitaker knows this, which is why he hedged his bets that he could evade certain questions and ultimately get away with it. Democrats in Congress know too that to push him with a subpoena could land them in a lengthy court battle which might not wind up going their way (or if it does, might be too late to have a meaningful impact). They also know that Trump supporters and many Republican voters will balk if the Democrats are perceived as overreaching, pushy, or bullying.

If the ultimate solution to a possibly corrupt presidency is a political one, Democrats and Republicans alike must play their political cards right from the get-go. Executive privilege is just one of those cards.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is also a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation and author of How to Read the Constitution and Why (Harper Collins).