Selects: What's the deal with subpoenas?

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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 iHeartRadio.

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.

The Legal Eagles of podcasting.

Ooh, can I be Daryl Hanna?

Yes, I call Barbara Hershey.

I don't think so.

Who was it?

Oh, Legal Eagles.

I know Deborah Winger.

Yes.

Was Daryl Hanna even in that?

Now I think.

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 had just casually decided to give us a chance.

I want to learn about subpoenas.

All 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.

Yep.

We presume it's going to have been a great time, that three-night run at the Belthaus.

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

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 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.

And it's typically the first two words that were read in this writ of subpoena, basically saying under penalty of

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 and Order.

Yeah, or you think of the U.S.

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 conscience 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, you know, typically the subpoena most people are ever going to come up against in their lifetime.

That's right.

But you mentioned the two types.

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.

That'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 duce ticum.

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.

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 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 like whether you need a majority vote to even get a subpoena or whether the chair of that committee is, you know, 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.

Was this like a cartoon eagle from 1984?

Yeah, I mean, all I can, 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 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 serve 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.

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, it 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 organ, the newspaper, and then that will be considered serving you.

So either way, you're going to end up being considered to have received this 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 House Duff Works 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, what, there's a lot of questions that you should have answered before you just act on a subpoena.

Yeah.

And, you know, 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, 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, the Fast and Furious

scandal.

Scandal?

Yeah, it was definitely a scandal.

From what I remember, it involved secret gun sales or some guns were

let out into the community to be traced to see who they went to, and one of them ended up being being used to murder an ICE officer, I believe.

Aaron Ross Powell, well, Attorney General Eric Holder refused under direction of Obama to

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, well, 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.

Aaron Powell.

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.

Aaron Trevor Brewer.

Unless the next session of Congress wants to pick it up.

Yes, but then they have to hold another vote.

And the chances that that the um

that there has been a change in leadership potentially in that Congress is you know high enough that if you 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 U.S.

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 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 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 Darrell 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 introed a 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 Myers 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 McGann was instructed not to do, 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, how, wait, how?

This is Congress.

How can a 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 a break and then we'll dive into that after this.

Case law.

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Stuff you should go.

So, Chuck, there's something about subpoenas, whether they're issued by Congress or by a a court of law.

When you get them, that 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 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, like, this is 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 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 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, going to court and saying, we need your help to enforce this civil suit against somebody who 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 of years down the line, there's going to be a judgment against you where you're going to have to pay $100,000 to Congress or something like that or spend like 12 months in jail will get you

the table to negotiate, you know, what documents they actually want or what testimony they want.

Yes, 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, you know, 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.

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, that's, 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, you know, the chances of something happening to you from a court of law are much higher than Congress, apparently.

Sure.

So 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.

Illegal legal?

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 it's 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 U.S.

v.

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 U.S.

passed the Sedition Act, which said that it's illegal to criticize the U.S.

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.

And that set a precedent for the rest 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.

Cooper, 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 Ducey's Teacum.

Right?

Douce?

Ducey's?

Ducey's.

Ducey's Teacum.

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 less and less

able to prove these days, I think.

Yeah, for sure.

Like, you could take off a half a day.

Right.

You got a Blackberry.

You can definitely email, keep tabs on work while you're gone.

But yeah, so 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,

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 are the president's business and can't be subpoena 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.

The 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.

Trevor Burrus, Jr.: And that's the one in particular that has been upheld over the years.

It's the idea that

there are secrets that the White House has that just need to be kept or else people are going to lose 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 over the years for sure.

Yeah, because obviously an executive, a 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 theory and saying like, no, not only just the president, but the entire president 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, 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 uh everyone we should do a full episode on watergate i think i've said that before i agree but um everyone knows what happened there president nixon uh was involved in some hinky activities and

uh congressional committees there was one uh 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?

And we want you to come here and testify as well.

And of course, Nixon was like, no, 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.

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.

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 branches' 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 a 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.

Exactly.

And that does not supersede due process in a court of law, which is going on over here with

the trials of these guys who broke into the Watergate.

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.

Well, I wanted to mention another quick thing.

Before we dive into Marbury, another case,

US v.

AT ⁇ T, 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 AT ⁇ T, the case said was you have to really try to work it out amongst yourself before it even gets to us.

Oh, gotcha.

Okay.

Yeah.

I got you.

I see.

I see what you're saying.

Yep, yep.

But good faith, of course, is broadly defined too.

Right.

So in Marbury versus Madison, that one basically said, hey, there's this one component here.

Yes, the...

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 was 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 versus Madison case from I think 1804.

And it was, from what I understand, a masterstroke of

legal eagleness

by Justice John Marshall.

Yeah, so

is the long and short of that one 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.

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 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.

Right.

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,

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 the 1804 case.

Landmark.

Legal eagle.

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.

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stuff is shut

so we all know what happened to nixon um

the justice did rule that hey dude you got to comply with this deuce's technum here

and you got to turn over these tapes so nixon uh turned over tapes.

He did, and it all worked out in the end.

Everybody's like, this is what you were protecting.

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 in the Opal?

That was much better.

What happens in the Oval Office stays in the Oval Office.

Executive privilege.

And they're like, even that stuff?

And he said, well, you know, it's executive privilege.

Panky-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.

And then he fell into line eventually.

Yeah.

New 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, if the as long as the executive branch recognizes the authority of the Supreme Court.

And 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 aides for testimony.

They have to come testify about

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 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,

it's a doozy.

It basically takes, and 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 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.

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.

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 inter-branch 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 inter-branch 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 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 Lippmann 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 his 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 Stephen 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 the big question now.

Well, and it makes you wonder what would have happened if Darrell Isa's

bill had gone through that makes subpoenas super enforceable.

Right.

Because, you know, we've seen it on, 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, will, like, is, is, are Republicans'

loyalty to Congress greater than the Republicans loyalty to the executive branch like there's it's like you know in any restaurant there's tension between the wait staff and the kitchen staff 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 you're not doing it fast enough or you 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.

Well, what happens?

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 strap.

Right, exactly.

I don't even remember what my analogy was meant to assert,

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.

But 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 McGann 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, well, 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 a listener mail.

I'm going to, 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 uh in the coffers okay uh guys

about 15 months ago i started my journey through the stuff you should know archives i've been on a study campaign about 12 to 16 episodes a week that's healthy wow uh why i'm writing though 10 years ago chuck made a bold prediction and the rumors the myths and truths behind obama's health care plan episodes didn't we do like four of those

um we did yeah i think we did four you're right but this one was specifically about that episode uh 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.

That's tragic.

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 out of it.

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've 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 stuffyushouldknow.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.

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