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Trump investigations showcase battles over executive privilege

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Democrats in the House of Representatives should expect the information requests sent to associates of President Trump to meet resistance at every turn. Litigation over these requests is likely to follow, including arguments about the extent to which the information sought is subject to executive privilege. Should those arguments wind up before the Supreme Court, Democrats might find a rather surprising ally in Justice Clarence Thomas.

As Thomas has made clear over the past month, he takes no prisoners in pursuing an originalist approach to constitutional interpretation. Indeed, in a series of separate opinions addressing different issues, Thomas has argued that the Supreme Court should set aside decades of precedent and reconsider traditional doctrines that have been long thought settled.

{mosads}In McKee versus Cosby, Thomas urged the Supreme Court to revisit the First Amendment rule that public figures cannot pursue damages for defamation absent a showing that the defendant indeed made a false statement or acted with reckless disregard of its truth. This derives from New York Times versus Sullivan, a true cornerstone of free speech jurisprudence, which Thomas had characterized as a federal policy “masquerading as constitutional law” that the Supreme Court “should not continue to reflexively apply” when considering in other similar cases.

In Garza versus Idaho, Thomas was joined by Justice Neil Gorsuch in dissenting from the majority conclusion that a criminal defendant was denied effective assistance of counsel when his attorney did not pursue an appeal after being requested to do so. Thomas disagreed not just with the ruling but a basic premise of Sixth Amendment doctrine that criminal defendants have a right to effective counsel, as famously declared by the Supreme Court in Gideon versus Wainwright. Thomas lamented the failure of the justices to fully reckon with the original meaning behind the Sixth Amendment, which in his view only guarantees an accused defendant the “services of an attorney” but not necessarily an effective one in the case.

These opinions relate here because, like the public figure and the effective counsel assistance doctrines that Thomas sees as the products of judicial overreach, executive privilege finds no purchase in the actual text of the Constitution. Thomas believes the decision in United States versus Nixon, which found certain presidential communications may be protected from disclosure, should have no more legitimacy than, say, the conclusion in Roe versus Wade that the due process clause protects the right to choose, a holding which Thomas has recently derided as “notoriously incorrect.”

Whatever purposes it might serve in promoting candor from presidential advisers, executive privilege is problematic given the evidence that the framers knew what privileges look like. The speech and debate clause of Article I explicitly creates a privilege for congressional communications that protects legislative deliberations from disclosure. It seems odd that the framers would understand the need for forthright policy discussions among our federal lawmakers while also denying the same privilege to the executive branch. But as Thomas would likely note, that oddity in itself is not sufficient to justify the judicial creation of such executive privilege.

There are indeed arguments for executive privilege that rely upon more than the pragmatism embraced by the Supreme Court in Nixon. As this case shows, the privilege is not in any event absolute. The Supreme Court ruled that the interest of the president in the confidentiality of his Oval Office discussions was outweighed by the interest of the defendant in a fair trial. It remains to be seen what weight the courts accord the interest of the legislative branch in effective oversight of the executive branch.

If nothing else, litigation over the House information requests from the White House and Trump associates may test the provenance of executive privilege in a way that no case since Nixon has. Should the issue reach the Supreme Court, the breadth and depth of the commitment of Thomas to his specific approach to constitutional interpretation may also be tested.

Lawrence Friedman is a professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”

Tags Congress Constitution Donald Trump Government Supreme Court White House

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