January 6 and Executive Privilege

It’s executive privilege day on Advisory Opinions! After a brief update on the Texas abortion ...

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It’s executive privilege day on Advisory Opinions! After a brief update on the Texas abortion litigation, David and Sarah “dive right in” to a discussion of the January 6 commission subpoenas and the power of Donald Trump to use executive privilege to block testimony. Our hosts also talk about how “parents and pals” help debunk a Brett Kavanaugh conspiracy theory. And they wind up with a crazy clemency case that’s likely to leave a man in prison because a Donald Trump sentence was just too ambiguous.

Show Notes:

–5th Circuit abortion ruling

–POGO “The Limits of Executive Privilege”

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  1. Gwen

    Sarah, while you’re indulging in a little dystopia, have you read “Shades of Grey” by Jasper Fforde? It’s clever and funny, and yet, dark. If you like listening to books, the recorded version is outstanding.

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  2. GregS

    Some members of FedSoc literally tried to commit a coup.
    The fact that other members of FedSoc didn't go along is not exactly a rousing defense of FedSoc. Not going along with a coup is a pretty basic responsibility of citizenship. In the same way that Pence deserves no praise for not helping the coup, FedSoc judges deserve no praise for doing a job that any Democratic judge would also have done.
    Sure - anyone who said "these FedSoc judges will assist in a GOP coup" turned out to be wrong. But they'd have been right if it was John Eastman who had been nominated to a Federal judgeship.

    FedSoc as a whole is tainted with the sin of the FedSoc members who were part of the coup. Is this unfair? No, because FedSoc has not kicked out, repudiated, or otherwise held responsible in any way these members. John Eastman still has a page on the FedSoc site: https://fedsoc.org/contributors/john-eastman

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    1. James D

      On this subject, I do feel that Eastman's status as (if I remember correctly) the chair of the "Federalism and Separation of Powers Branch" suggests that FedSoc should conduct a serious in-depth review of all its various affiliated chairs and thinkers. To have a naked advocate for what effectively amounts to a centralized coup be the chair of *separation of powers* thinking at FedSoc suggests that the FedSoc is, at best, deeply unserious, and at worst deeply unwell.

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      1. GregS

        Exactly. I can't take seriously a defense of FedSoc that ignores the fact that they still have this guy as the chair of one of their committees.

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        1. Avatar photocircle-angle-nib
          Sarah Isgur vertical-nib Author

          Worth a fact check: He’s not still chair.

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          1. GregS

            Also, is he not the chair? The practice group page doesn't say who the chair is, and although his page no longer lists him as chair, there was no announcement that he was being removed as chair. Perhaps you spoke to someone there who said he was no longer the chair. But if so, they didn't want the general public to know, which is an indictment of their behavior in and of itself.

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          2. GregS

            Fair enough. Still a member, still has the page on their site, still no repudiation of his actions by the society. Still can't take a defense of them seriously.

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    Dave T

    David McCullough's 1776 -- the book that got me into reading history -- also asserts that the revolution was essentially caused by the incompetence of the British crown, both the king personally and the management more generally.

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    Dave T

    Here's my take on Man in the High Castle (the show, not the short story, which was fascinating):

    The protagonists are boring and dumb (except for Trade Minister Tagomi).

    The antagonists are incredible. SS Obergrupenfuhrer John Smith and Kempetai Chief Inspector Kido are fascinating characters who are well written and brilliantly acted.

    By the middle of season two, I had ceased caring about stupid Frank and stupid Juliana (and later, stupid Joe), whose key talents appear to be sulking and bad decision making. But wow, the bad guys kept me going all the way through season three (... when I gave up).

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    Alfie K

    Thank you thank you thank you Sarah for plugging Mother Jones. I have been a reader of Mother Jones for years but very rarely tell anyone in my conservative circles that I read it for fear of the responses I would most certainly get- but I’ve found their reporting to be so solid I can’t turn away. Sure they dig at conservatives- but they, like everybody else deserve to be held accountable, and we should all be for rooting out rot in every circle.

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  6. Lisaagates

    Please, yes have a pod on dystopia novels/shows. Man in the High Castle was amazing and I want to hear Sarah's thoughts.

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    Ben Connelly

    Brett Kavanaugh’s rich parents paying off his debt? Brett Kavanaugh treating his friends to season Nats tickets? Leftist conspiracy nuts coming up with even more weird Brett Kavanaugh theories?

    Automatic. Still is.

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    George.Skinner

    It seems likely that Bannon would assert his 5th amendment right not to testify once Trump's bid for executive privilege fails. However, asserting a right to avoid self-incrimination when being questioned about January 6 doesn't seem to support the political line that it was no big deal. I'm sure Trump partisans will have no issue brushing this off, but you'd think a smart line of questioning could produce some pretty damning sound bites of Bannon and others refusing to answer fairly pointed and specific questions.

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  9. app

    I disagree with your executive privilege analysis. We shouldn't allow our (justified and reasonable) dislike of Trump, January 6, etc., to cloud our judgment on this question. A president should feel that he or she has the freedom to get candid input and advice without fear that a political rival and enemy could later permit the disclosure of such information. I agree there has to be some bounds on the privilege, but I wouldn't start defining those boundaries by saying the privilege belongs to the office, not the individual. I *do* agree with you that the arguments based on "equal branches of government" are weaker.

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      Toog

      Limiting to staff also seems problematic. Surely there are many situations where it would be perfectly normal and reasonable for a president to want to get frank, confidential advice from people not on staff. And that there'd be a public interest in protecting that confidentiality for the same reasons that pertain to staff advice.

      Say, e.g., a president is considering firing his chief of staff, but he isn't sure. He's not going to ask staff for advice. So maybe he calls the chair of his transition team, or a former COS, or even a former president. But that's hardly going to work if some prying Congressman can summon them before a committee and demand they repeat every word.

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    Young Riprock

    I’m regard to the clemency, I could have sworn there was a case about delivery of a pardon. I can’t recall if the delivery had to be to the incarcerated or the pardonee, but there was a delivery requirement. I would think that applies equally to clemencies.

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      Are you thinking about the delivery of the judicial commissions in Marbury v Madison?

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