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What's the deal with subpoenas? · Stuff You Should Know

0:01
Speaker 1: Welcome to Stuff you should know, a production of My
0:03
Speaker 1: Heart Radios How Stuff Works. Hey, and welcome to the podcast.
0:12
Speaker 1: I'm Josh Clark, and there's Charles W. Chuck Bryant, and
0:15
Speaker 1: there's Jerry Jerome Rowland over there, the Legal Eagles of podcasting.
0:21
Speaker 1: Who can I be Daryl Hannah? Yes, I call Barbara Hershey.
0:26
Speaker 1: I don't think so. Who was it, oh, Legal Eagles?
0:29
Speaker 1: I know Deborah Winger? Yes, was Darryll Hannah even in
0:32
Speaker 1: that Now, yeah, she was the client of Deborah Winger.
0:36
Speaker 1: And you're not Redford? No, I always have to be
0:39
Speaker 1: read for everybody's always like that. Guy's a regular Robert Redford.
0:43
Speaker 1: He'll play him in this scenario. Right, That's that's the
0:47
Speaker 1: street chatter. Yeah. Can I still be Barbara Hershey even
0:50
Speaker 1: though she wasn't in the movie. Sure, I think I'm
0:53
Speaker 1: thinking of beaches. Oh well, that means I get to
0:56
Speaker 1: be Bette Midler? Right. I wonder how many pods save
0:59
Speaker 1: America Seners we just lost who it just casually decided
1:02
Speaker 1: to give us a chance? I want to learn about subpoenas.
1:05
Speaker 1: Right before we get going, though, can we quickly thank
1:09
Speaker 1: the cities of Orlando and Greater Orlando and Florida in
1:13
Speaker 1: New Orleans and Greater Louisiana. Yes, for two fun live shows. Yeah,
1:18
Speaker 1: those were a lot of fun. Um. Let's see. We
1:21
Speaker 1: did Orlando on October nine, I think, and then the
1:25
Speaker 1: tenth for New Orleans. Regardless, it was night back to
1:29
Speaker 1: back to fund filled nights and they were just both
1:31
Speaker 1: amazing shows. Yeah, and when this comes out, I think
1:35
Speaker 1: New York will have been over. So thank you New York.
1:37
Speaker 1: Oh yeah, yeah, we we presume it's going to have
1:40
Speaker 1: been a great time that three night run at the Bellhouse.
1:42
Speaker 1: They're always great there. And that's it too. That's it
1:46
Speaker 1: for us for the for the year, Chuck, So, I
1:49
Speaker 1: mean thank you to everybody who came out to see
1:51
Speaker 1: our shows this year. Yeah. Can we go ahead and
1:53
Speaker 1: tease our our January scheduled? Should we not? I think
1:59
Speaker 1: we can't sure? All right, Well, well we're hoping to
2:01
Speaker 1: be back at Sketch Fest again, and then what do
2:04
Speaker 1: we settle on? I don't know settling is the right
2:08
Speaker 1: way to put it. The Seattle we're doing Seattle, we are, Yeah,
2:14
Speaker 1: and normally for a January swing we do Portland's Seattle
2:18
Speaker 1: Sketch Fest. Well, We've got the I Heart Radio Awards
2:22
Speaker 1: in there in Los Angeles, and we just you know,
2:24
Speaker 1: kind of have to go to that. Um no, sorry,
2:28
Speaker 1: the I Heart Podcast Awards. They don't care about us
2:30
Speaker 1: at all at the radio Awards. Now. We can't even
2:32
Speaker 1: get in that building, right exactly. So we said, okay, well,
2:35
Speaker 1: we gotta we gotta pull out one of our shows
2:37
Speaker 1: because we're old men and we just can't spend that
2:40
Speaker 1: much time on the road. So instead we're going to
2:43
Speaker 1: take Portland's and put it with another town in the spring.
2:46
Speaker 1: So don't worry, Portland, we will be out there maybe
2:49
Speaker 1: maybe the Cove. That's what that's the talk, that's the
2:52
Speaker 1: chatter around town. But we have no dates confirmed yet.
2:55
Speaker 1: But this just look for us again in the Pacific
2:58
Speaker 1: Northwest at the beginning of the year. It's a much
3:00
Speaker 1: better way to put it. So do you want to
3:03
Speaker 1: talk about subpoenas? You got any other housekeeping to do?
3:06
Speaker 1: I don't think so. Um, subpoena's weird spelling. Well, yeah,
3:11
Speaker 1: so I looked up the word, and subpoena is actually
3:14
Speaker 1: two words. It means under penalty and it's typically the
3:18
Speaker 1: first two words that were read in this rid of subpoena,
3:22
Speaker 1: basically saying, under penalty of um blah blah blah. Yeah,
3:28
Speaker 1: I was thinking all I could think about was really
3:30
Speaker 1: dirty dark stuff. Yeah, so I just let you fill
3:35
Speaker 1: in the blah blah blah. But anyway, under penalty of whatever,
3:39
Speaker 1: you need to do one of two things. Uh, And
3:42
Speaker 1: there are two types of subpoenas that everybody, you know,
3:45
Speaker 1: everybody hears subpoena and you think, like Law and Order,
3:48
Speaker 1: Maybe visions of Central Park run through your head because
3:51
Speaker 1: that's your only exposure to Central Park is from Law
3:53
Speaker 1: and Order, or you think of the US government, because
3:57
Speaker 1: a lot of this is going to be about congressional subpoenas,
3:59
Speaker 1: because that's really the juiciest subpoena. Yeah, that's It's not
4:02
Speaker 1: like it's new that Congress has just recently started issuing subpoenas.
4:06
Speaker 1: It's new in the conscious of America in this this age,
4:11
Speaker 1: this generation. I mean, it's been going on for a while.
4:13
Speaker 1: But normally when people think subpoenas until like basically two thousand, seventeen,
4:18
Speaker 1: sixteen eighteen, um, not necessarily in that order. Um, most
4:23
Speaker 1: people thought of courtroom subpoenas, and that is you know,
4:26
Speaker 1: typically the subpoena most people are ever going to come
4:28
Speaker 1: up against in their lifetime. That's right. But you mentioned
4:32
Speaker 1: the two types. You want to break out your Latin
4:35
Speaker 1: or shall I you take the first, I'll take the second. Okay,
4:40
Speaker 1: The first one's easy. The first one is subpoena add
4:45
Speaker 1: testify candem. Wow, did you see that? You just made
4:49
Speaker 1: a mouse appear and run out of the room. The
4:53
Speaker 1: next one, so that I was so sorry. The first one,
4:55
Speaker 1: the one you just said, that means you gotta come
4:57
Speaker 1: to court. You just nailed it. Yeah, it says that
4:59
Speaker 1: you to come and testify, and you might not be
5:03
Speaker 1: um a party to the lawsuit like this is. It
5:06
Speaker 1: can be a civil case or a criminal case. It's
5:08
Speaker 1: a big thing to point out, um, But basically it's
5:11
Speaker 1: saying you have some information. You witnessed an act, um,
5:16
Speaker 1: you overheard a conversation the the defendant confess something to you.
5:21
Speaker 1: We need you to come to court and tell your story.
5:24
Speaker 1: And that's what that first subpoena is saying to do. Yeah,
5:27
Speaker 1: and not necessarily court court, but it can be any
5:29
Speaker 1: kind of legal authority. Yeah, it could be a deposition,
5:32
Speaker 1: it could be an arbitration. Um. But typically it's the
5:36
Speaker 1: authority of a court of law to basically say we're
5:40
Speaker 1: going to levy a fine against you, or we're going
5:42
Speaker 1: to arrest you and put you in jail if you
5:44
Speaker 1: don't listen. That's that's used to um to kind of
5:48
Speaker 1: enforce subpoenas. So the second one is the subpoena doocey's teacum, Hey, nice,
5:54
Speaker 1: thank you um. And that is basically saying, hey, you
5:58
Speaker 1: have a document, you have of a hair sample, you
6:01
Speaker 1: have some sort of bodily fluids we want to get
6:04
Speaker 1: our hands on. You have a compute yeah, or a
6:08
Speaker 1: computer hard drive, um, you know something like that that
6:13
Speaker 1: we want you to produce because we want to use
6:16
Speaker 1: it as evidence. And there's a really important point to
6:19
Speaker 1: put here, Like a court is saying a court or
6:23
Speaker 1: an official of the court or of the government is saying,
6:27
Speaker 1: we want you to do this because we have this
6:29
Speaker 1: lawsuit going on and you have something we need. But
6:32
Speaker 1: it's not necessarily the judge saying, and the judge is
6:34
Speaker 1: signing off on it. It's really a lawyer or of
6:37
Speaker 1: for one side of the other saying, hey, I heard
6:39
Speaker 1: that this person has the secret tape and I need
6:42
Speaker 1: to get my hands on it, Judge, can you order
6:44
Speaker 1: this person to bring it to me so that I
6:46
Speaker 1: can enter it into evidence. And then the judge says,
6:49
Speaker 1: speak to my clerk, and then the clerk of the
6:52
Speaker 1: usually the clerk of the judge who's handling that case. Um,
6:56
Speaker 1: they say, talked to the hand. Yeah, and they'll generally
6:59
Speaker 1: issue it on uh, unlike official court letter head and
7:03
Speaker 1: official documentation. It's not like the judges washing their hands
7:06
Speaker 1: of it necessarily. No, No, I'm sure like if they
7:09
Speaker 1: do something egregiously wrong with the judge is gonna hear
7:12
Speaker 1: about it and punish them, that's right. And then it
7:15
Speaker 1: served um, usually in person, uh kind of you know,
7:19
Speaker 1: hand it to you like on the TV shows and
7:21
Speaker 1: in the movies. Yeah, either by a sheriff's deputy or
7:24
Speaker 1: a process server. Yeah, but not always it it depends
7:28
Speaker 1: on if it's congressional um, or if it's you know,
7:32
Speaker 1: civil regular josh mos stuff. Yeah. Well yeah for sure.
7:37
Speaker 1: But I think even if it is regular civil josh
7:39
Speaker 1: Mos stuff, you can still go higher the sheriff's department
7:42
Speaker 1: to serve papers, to serve a subpoena, Oh for sure.
7:46
Speaker 1: I think the congressional ones are not served by a sheriff. Oh,
7:49
Speaker 1: I see who do they use? I think it depends
7:52
Speaker 1: it could. I mean the way congressional subpoena's work is
7:56
Speaker 1: all sort of dependent on the individual committee that's seeking subpoena,
8:01
Speaker 1: So they all have their own individual rules about like
8:04
Speaker 1: whether you need a majority vote to even get a subpoena,
8:06
Speaker 1: or whether the chair of that committee is you know,
8:10
Speaker 1: has the power to h grant or request to subpoena. Right,
8:15
Speaker 1: I've read some of them know that it's a real
8:16
Speaker 1: downer to get a subpoena, says some congressional committees used
8:20
Speaker 1: that mascot from the nineteen eight four Olympics, the Eagle
8:25
Speaker 1: to come issue your papers to you. I don't remember
8:28
Speaker 1: that one. You don't remember that eagle? Now? Was this
8:31
Speaker 1: like a cartoon eagle from? Yeah? I mean all I can.
8:35
Speaker 1: I can't get past the Atlanta Olympics mascot. That's why
8:38
Speaker 1: I can't get back to nineteen eighty four? Was it?
8:40
Speaker 1: What's it? Or who's it? I don't even know. It
8:43
Speaker 1: was one of those two. What was that thing? I
8:46
Speaker 1: don't know. It was a last last minute thing. What
8:49
Speaker 1: was the name it was? What's it? Or who's it
8:51
Speaker 1: was it? Yes, yes, man, it was bad. I was
8:55
Speaker 1: out of town. I fled. You didn't miss anything. But
8:58
Speaker 1: I do remember watching the opening uh whatever they're called,
9:03
Speaker 1: the opening opening ceremonies, and seeing the stainless steel pickup
9:09
Speaker 1: trucks driving around and just thinking, oh boy. Yeah. And
9:13
Speaker 1: I for those of you who are like, they've talked
9:14
Speaker 1: about this before, yeah, we have, and we're still that
9:17
Speaker 1: upset about it. We'll talk about it again in five
9:19
Speaker 1: more years. We haven't forgotten. Yeah, stainless deel pickup trucks
9:22
Speaker 1: they haunt. I have dreams about those trucks. Yeah, if
9:26
Speaker 1: they're just circling you playing striper at the loudest possible volume. Man. Okay,
9:32
Speaker 1: So we've got different kinds of subpoenas, but both of
9:35
Speaker 1: them apply to either courts of law or Congress. So
9:40
Speaker 1: there's one big question that most people who get a
9:43
Speaker 1: subpoena ask themselves the moment they're served the paper, and
9:47
Speaker 1: that is, can I ignore this? Do I have to
9:50
Speaker 1: do this right? We get what happens to me if
9:53
Speaker 1: I just pretend like I never got this, And that's
9:55
Speaker 1: really tough to do. I was reading about process servers
9:58
Speaker 1: and Um, they people who are issuing the subpoena or
10:02
Speaker 1: the lawyer who's asking for the subpoena to say, they
10:05
Speaker 1: want some sort of proof that says you got that paper,
10:08
Speaker 1: so they have to. Um. There's like certain rules and
10:11
Speaker 1: regulations to serve to serving somebody with a subpoena, so
10:14
Speaker 1: it's really difficult to pretend like you're not, like you
10:18
Speaker 1: didn't get it, and a lot of people actually go
10:20
Speaker 1: to a tremendous amount of trouble to avoid being served
10:23
Speaker 1: as subpoena. They will like move around, they will pretend
10:26
Speaker 1: they're not home. They won't let anyone else answer the
10:29
Speaker 1: door because in some states you can leave it with
10:31
Speaker 1: a competent thirteen year old or eighteen year old. They'll
10:34
Speaker 1: stick their hands in their ears and go la la la,
10:36
Speaker 1: la la la. Right exactly, they'll do a lot of
10:38
Speaker 1: stuff to keep from being served. But that's actually it
10:41
Speaker 1: will just delay being served in the long run, you
10:45
Speaker 1: will still there's other remedies they can use. They can
10:49
Speaker 1: mail it to your house certified mail, and if the
10:51
Speaker 1: male person says this was dropped off made it to
10:55
Speaker 1: their house, that's enough. Or if you can say I
10:58
Speaker 1: took the numbers off my mailbox where you get to
11:00
Speaker 1: do now, chump um. They can actually post an ad
11:03
Speaker 1: in the local legal organ the newspaper, and then that
11:08
Speaker 1: will be considered serving you. So either way, you're going
11:11
Speaker 1: to end up being considered to have received the subpoena eventually,
11:16
Speaker 1: and if you do, you probably shouldn't ignore it. Yeah,
11:19
Speaker 1: I mean, it says here in this article which most
11:23
Speaker 1: of this is from the House Stuff Works article about subpoena's,
11:26
Speaker 1: but it says, you know, it's a lot easier if
11:27
Speaker 1: you just go or produce the documents. But as we'll
11:32
Speaker 1: cover here and a lot of this congressional oversight stuff,
11:35
Speaker 1: that is not the route that people take generally in government. Yeah,
11:39
Speaker 1: and I thought it was kind of an oversight to
11:41
Speaker 1: not say, like, but also, if somebody serves you with
11:43
Speaker 1: the subpoena, like go you don't necessarily have to hire
11:47
Speaker 1: a lawyer, but at least consult with one, like get
11:49
Speaker 1: some legal advice, say this is what I got, you know,
11:52
Speaker 1: what what should I do with this? Is this? You know, well,
11:55
Speaker 1: you know, there's a lot of questions that you should
11:58
Speaker 1: have answered before you just act down a subpoena. Yeah,
12:01
Speaker 1: and you know, when it comes to ignoring subpoena's. Uh.
12:05
Speaker 1: And that's what a lot of this will be about,
12:06
Speaker 1: is um is what's going on with our government right
12:10
Speaker 1: now and previously and what happens if you defy Congress
12:13
Speaker 1: And is there any accountability for that or can you
12:17
Speaker 1: just sit on your hands say nope? But there have
12:20
Speaker 1: been some very famous um cases in the past, you know,
12:25
Speaker 1: fifteen years or so where subpoenas have been ignored. Uh,
12:28
Speaker 1: starting well, I'm not starting with but we can start
12:31
Speaker 1: with Eric Holder, Attorney General for Barack Obama. Yeah, that
12:35
Speaker 1: was a big one that was part of the operation, uh,
12:38
Speaker 1: the Fast and Furious scandal. Scandal. Yeah, it was definitely
12:43
Speaker 1: a scandal. It um It from what I remember, it
12:47
Speaker 1: involved like secret gun sales or else. Some guns were
12:50
Speaker 1: like led out into the community to be traced to
12:53
Speaker 1: see who they went to, and one of them ended
12:55
Speaker 1: up being used to murder an ice officer I believe. Well,
12:59
Speaker 1: Attorney General Eric Holder refused, under direction of Obama, to
13:04
Speaker 1: answer that subpoena, and he became the first sitting cabinet
13:08
Speaker 1: member to be voted in contempt of Congress. That right, Yeah,
13:13
Speaker 1: And you know you're like, oh, what happens in well,
13:16
Speaker 1: three and a half years later, a judge ruled Um
13:20
Speaker 1: that he did not have the right to defy Congress.
13:24
Speaker 1: And by that time there was a new Congress, and
13:26
Speaker 1: it was a moodpoint. That's a really big big thing
13:29
Speaker 1: to remember, is like a contempt of Congress vote where
13:34
Speaker 1: you are supposedly in trouble for ignoring a subpoena, only
13:38
Speaker 1: lasts as long as that session of Congress, unless the
13:40
Speaker 1: next session of Congress wants to pick it up. Yes,
13:43
Speaker 1: but then they have to hold another vote. And the
13:45
Speaker 1: chances that that the that there has been a change
13:49
Speaker 1: in leadership potentially in that Congress is you know high
13:52
Speaker 1: enough that if you if you make it through that Congress,
13:56
Speaker 1: you know, um, going into recess, you're you're probably going
14:00
Speaker 1: to get away with it. And I mean that's par
14:02
Speaker 1: for the course. It wasn't just Eric Holder who got
14:04
Speaker 1: away with it. Um, Harriet Myers, who was a White
14:07
Speaker 1: House counsel, the George W. Bush. There's like a mass
14:10
Speaker 1: political firing of U S attorneys and Um yep, and
14:16
Speaker 1: she and I think chief of staff at the time,
14:19
Speaker 1: Joshua Bolton were both held in contempt of Congress and man,
14:23
Speaker 1: if you look up, like you know, follow up reporting
14:26
Speaker 1: on this stuff, it's like, you know, while it's going
14:29
Speaker 1: on there like they could face fine jail time. Finally
14:32
Speaker 1: I found some follow up. There's like nothing nothing happened,
14:35
Speaker 1: Absolutely nothing happened. There's no legal ramifications, there were no
14:38
Speaker 1: personal ramifications. There was nothing happened whatsoever to Harriet Myers
14:45
Speaker 1: or Joshua Bolton or Eric Holder for just saying Congress,
14:49
Speaker 1: the United States Congress, go sit on it, which is
14:54
Speaker 1: essentially what you're saying when you ignore a subpoenis yea.
14:57
Speaker 1: And because of this um you remember represented of darryl
15:00
Speaker 1: Issa probably by name, he was uh he was involved
15:04
Speaker 1: in trying to get Eric Holder, you know in the room,
15:08
Speaker 1: and he was so mad he sponsored or intro to
15:11
Speaker 1: bill to strengthen subpoena enforcement power, and uh it died
15:16
Speaker 1: in the Senate. And before we, uh, I think we're
15:19
Speaker 1: about to take a break. Before we do that, that
15:20
Speaker 1: we should mention that currently White House Counsel Don McGann
15:25
Speaker 1: um has refused to testify or refused to uh answer
15:29
Speaker 1: his subpoena under direct order of Trump and UM right
15:34
Speaker 1: now he's being sued by the House and he he
15:39
Speaker 1: in particular provides a an unusual situation because at least
15:44
Speaker 1: with Harriet Myers, or with Joshua Bolton or with Eric Holder,
15:47
Speaker 1: when they were directed by the president at the time
15:50
Speaker 1: not to um submit to that subpoena from Congress, they
15:54
Speaker 1: were part of the president's staff. Don McGann was instructed
15:58
Speaker 1: not to do not to cooperate with the subpoena after
16:02
Speaker 1: he had already left civil service. He was no longer
16:05
Speaker 1: part of the executive branch. So that definitely makes it unusual.
16:08
Speaker 1: But if you're sitting there and your head is popping
16:10
Speaker 1: and you're saying, how wait, how this is Congress, How
16:13
Speaker 1: can the president just say just ignore that subpoena and
16:16
Speaker 1: people get away with it. There's actually a lot of
16:20
Speaker 1: case law that's been built over the centuries that kind
16:23
Speaker 1: of establishes that. And I say, Chuck, we take a
16:25
Speaker 1: break and then we'll dive into that after this. So, Chuck,
16:52
Speaker 1: there's something about subpoenas, whether they're issued by Congress or
16:55
Speaker 1: by a court of law. Um, when you get them
16:58
Speaker 1: that a lot of people don't realize, uh, they're negotiable.
17:03
Speaker 1: That's one really big reason to hire a lawyer is because, um,
17:08
Speaker 1: they it may be overly broad, it may be kind
17:11
Speaker 1: of a fishing expedition. It may put you at risk
17:14
Speaker 1: to come forward and give this testimony or to hand
17:16
Speaker 1: over these documents. And if you'll if you hire a
17:18
Speaker 1: lawyer and say, hey, these are the things I'm worried about,
17:21
Speaker 1: they can go and argue to the judge like, hey,
17:24
Speaker 1: how about we just limit this subpoena to these documents
17:26
Speaker 1: rather than everything on my client's hard drive. Or it's
17:30
Speaker 1: really a big hardship for my client to make it here, um,
17:34
Speaker 1: and the fifteen dollars a day that the court's paying
17:37
Speaker 1: him for coming to testify isn't actually going to cover it,
17:40
Speaker 1: So you know, can we can we negotiate a higher
17:43
Speaker 1: fee or something like that. There's a lot of stuff
17:45
Speaker 1: that can be done. But this is a technic that's
17:47
Speaker 1: also used with congressional um subpoenas too, where say like
17:51
Speaker 1: the executive branch will go, m I think that this
17:55
Speaker 1: is a little overly broad, but maybe we could give
17:57
Speaker 1: you this document. Will that satisfy you go Nope? Sometimes
18:01
Speaker 1: they say yes, though, and part of that negotiation comes
18:04
Speaker 1: out of the subpoena process. It's a response to it, um,
18:08
Speaker 1: But none of it would have any effect whatsoever if
18:11
Speaker 1: Congress didn't have any redress for um, for enforcing its subpoenas.
18:17
Speaker 1: If somebody ignores it. Yeah, I mean, technically there are
18:21
Speaker 1: fines in jail time sort of looming. But the more
18:24
Speaker 1: I read about this stuff, especially when it comes to
18:26
Speaker 1: Congressional oversight, the more it became clear that none of
18:31
Speaker 1: that stuff really happens. It's all just dangled out there
18:35
Speaker 1: as a means to negotiate, uh something with each other
18:39
Speaker 1: over a pretty long period of time usually for sure. Yeah,
18:43
Speaker 1: that Eric Holder thing was it was like four years
18:45
Speaker 1: before he finally handed over the file um, and I
18:48
Speaker 1: think Congress had already gone out of session, you said,
18:51
Speaker 1: And it was basically just the whole thing had died down,
18:53
Speaker 1: which I think is basically the the stalling tactic that
18:57
Speaker 1: people ignore subpoenas for like that's why they're doing it. Yeah.
19:01
Speaker 1: So technically, if you defy Congress, the committee that issued
19:04
Speaker 1: that subpoena is going to vote to issue a citation,
19:09
Speaker 1: a contempt citation, and then it's got to go to
19:11
Speaker 1: the full chamber to vote on it. And if that
19:14
Speaker 1: goes through and it passes, which it has before. Then
19:16
Speaker 1: there are three three basic ways that you can prosecute
19:20
Speaker 1: that charge, right, and each one is worth Yeah, pretty
19:26
Speaker 1: much like this is. We would never give official legal advice,
19:31
Speaker 1: first of all, because we're not lawyers or even trained
19:33
Speaker 1: as lawyers. But from what I can tell, there's just
19:36
Speaker 1: nothing happens to you if you ignore a congressional subpoena.
19:39
Speaker 1: But most people respond to it because I feel like
19:43
Speaker 1: the further down the UM food chain you are, the
19:47
Speaker 1: more likely Congress is to do something in retaliation to you. Yeah, well,
19:53
Speaker 1: let's let's go through the three at least fine, if
19:56
Speaker 1: for no other reason than pure folly. So if they
20:00
Speaker 1: if they vote in in that contempt citation goes through UH.
20:05
Speaker 1: It is then under the control of the executive branch.
20:08
Speaker 1: And you think, oh great the president or oh great
20:11
Speaker 1: the president. It's really neither is the Justice Department, which
20:14
Speaker 1: is part of the executive branch. It's up to them
20:17
Speaker 1: to decide whether or not they're going to prosecute UH criminally,
20:20
Speaker 1: and they're going to say no, They're gonna say then
20:24
Speaker 1: we'll talk a lot about executive privilege coming up, but
20:26
Speaker 1: they will usually cite that UM and decline to prosecute,
20:29
Speaker 1: basically kind of saying, uh, you know what, we don't
20:32
Speaker 1: get involved in this stuff, right. So so that is
20:35
Speaker 1: specifically when it comes to subpoenaing something from the White
20:40
Speaker 1: House or the executive branche. Now, if the if if
20:43
Speaker 1: Congress is being ignored by say like the owner of
20:46
Speaker 1: the Houston Astros, they can go to the d o
20:49
Speaker 1: J and say, Hey, the Houston Astros baseball team owners
20:52
Speaker 1: ignoring a subpoena, We want you to go after the guy,
20:56
Speaker 1: and they'll go after the guy. It's when it's executive
20:59
Speaker 1: privilege that's being cited that the d o J says,
21:02
Speaker 1: you know how, it's our jurisdiction to decide whether to
21:04
Speaker 1: prosecute this stuff. We're going to decline to do that
21:07
Speaker 1: because it's our own people and we're just going to
21:09
Speaker 1: consider this an internal executive branch. Matter Number two is uh,
21:15
Speaker 1: the civil judgment, right, and that's when you need the
21:19
Speaker 1: courts to basically enforce this. Go into court and saying
21:22
Speaker 1: we need your help to enforce this civil suit against
21:26
Speaker 1: somebody who stiff this right, Like, you know how you
21:28
Speaker 1: can go arrest somebody and put him in jail, can
21:30
Speaker 1: you do that on our behalf basically, but this is
21:33
Speaker 1: super slow, like turtle like slow. Yeah. But I think
21:38
Speaker 1: the idea is that, um, the thought that maybe somewhere
21:43
Speaker 1: a couple of years down the line, there's going to
21:45
Speaker 1: be a judgment against you where you're going to have
21:47
Speaker 1: to pay a hundred thousand dollars to Congress or something
21:51
Speaker 1: like that. There's been like twelve months in jail. Will
21:54
Speaker 1: get you to to the table to negotiate, you know,
21:57
Speaker 1: what documents they actually want or what testament money they want? Yes,
22:01
Speaker 1: just leverage, right. So the third one is something that
22:04
Speaker 1: isn't used anymore. Really. It's called inherent contempt power was
22:09
Speaker 1: last used in nineteen thirty five. And this is you know,
22:13
Speaker 1: this is sort of the jail thing. And while there
22:15
Speaker 1: is no capital jail, they do have a holding cell. Yeah,
22:19
Speaker 1: and like the sergeant at arms of the Senate or
22:23
Speaker 1: the House, depending on who's issuing the subpoena and who
22:26
Speaker 1: voted to UM told you in contempt, an armed officer
22:31
Speaker 1: of the Congress will show up and say you're under arrest.
22:35
Speaker 1: Congress says you're under arrest. You have to come with me.
22:38
Speaker 1: Um or as has been kind of boom um bounced
22:41
Speaker 1: around lately by UM Democrats in the House, replacing the
22:45
Speaker 1: idea of jailing somebody, of arresting and jailing them with
22:48
Speaker 1: a much much stiff refined than people have traditionally faced,
22:52
Speaker 1: something more on the order of I think between twenty
22:55
Speaker 1: five thousand and two d and fifty thousand dollars I
22:57
Speaker 1: think a day actually for for ignoring this kind of stuff,
23:01
Speaker 1: which we guess that would get people moving if they
23:04
Speaker 1: actually go through with that, Yeah, I would think. So
23:07
Speaker 1: get him in the pocketbook, yeah, I mean that hard.
23:10
Speaker 1: That's and it pluses the government too. So it's like, hey,
23:13
Speaker 1: you know these text credits you're getting, we're taking those
23:16
Speaker 1: away in this text return that you were expecting. We're
23:18
Speaker 1: gonna hang on to that. Like that's this is where
23:20
Speaker 1: they could actually do something. Yeah, I think so. If
23:25
Speaker 1: it's not congressional subpoena, if it's just like we're talking
23:29
Speaker 1: about a regular court subpoena, it all depends on what
23:32
Speaker 1: jurisdiction you're in and the presiding judge that's on that case. Yes,
23:37
Speaker 1: but again, because you can be arrested as a matter
23:41
Speaker 1: of routine course of of a court, UM, you really
23:46
Speaker 1: should respond at least to a subpoena or else. You know,
23:49
Speaker 1: the chances of something happening to you from a court
23:52
Speaker 1: of law are much higher than Congress apparently. So, Um,
23:56
Speaker 1: can we talk about case law? Yes, finally we got
23:59
Speaker 1: all that boring stuff out of the way. Yeah, this
24:02
Speaker 1: first one is kind of interesting. Um. And the way
24:06
Speaker 1: the judiciary works in this country is just super fascinating
24:09
Speaker 1: to me. The older I get, the more I read
24:10
Speaker 1: about it. I'm not becoming illegal wonk by any means
24:13
Speaker 1: illegal legal, But I get it, Like, you know, I
24:18
Speaker 1: get it that people are super into this kind of thing.
24:20
Speaker 1: I hadn't realized you've gotten into the judiciary. Yeah, I
24:23
Speaker 1: think it's pretty fascinating. What got you into it? Just
24:26
Speaker 1: like news, following the news or something or yeah, and
24:31
Speaker 1: just sort of reading about a case like in this
24:34
Speaker 1: case from eighteen hundred, and then you know precedent and
24:38
Speaker 1: what that means and when it when it shouldn't matter
24:41
Speaker 1: and should matter, like the one from eighteen hundred you're
24:44
Speaker 1: talking about US v. Cooper. Yeah, Thomas Cooper, who was
24:48
Speaker 1: a scientist and an attorney and a thorn in the
24:51
Speaker 1: side of President John Adams in a big way. Yeah.
24:56
Speaker 1: So in I think, yeah, the US past the Sedition Act,
25:01
Speaker 1: which said that it's illegal to criticize the US government. Unfortunately,
25:06
Speaker 1: when Thomas Jefferson came into office, he said, then we're
25:09
Speaker 1: gonna kind of do away with that and keep it
25:11
Speaker 1: away forever as much as we can. Um. But there
25:15
Speaker 1: was a guy named Thomas Cooper, who, like you said,
25:18
Speaker 1: was a thorn in the side of John Adams, and
25:21
Speaker 1: he was arrested and prosecuted during a time when the
25:23
Speaker 1: Sedition Act was still in effect, and he he lost
25:27
Speaker 1: his case. But the way that it relates to subpoenas
25:31
Speaker 1: and ignoring subpoenas, and specifically the executive branch ignoring subpoenas,
25:35
Speaker 1: is that all the way back in eighteen hundred, when
25:37
Speaker 1: the United States was just a couple of decades old,
25:41
Speaker 1: this guy, Thomas Cooper, tried to subpoena John Adams to
25:45
Speaker 1: come testify as part of this case. And the court said,
25:49
Speaker 1: we don't really subpoena presidents. We decided, and that's that
25:54
Speaker 1: a precedent for the rest of history. It basically said
25:57
Speaker 1: presidents are accepted from the goings on in normal court stuff,
26:02
Speaker 1: even when they're directly related to the case. They don't
26:05
Speaker 1: have to come, right But that same case, he said,
26:08
Speaker 1: but you can subpoena someone from Congress. That's a big
26:11
Speaker 1: one too. That was a big one, Um Cooper. It
26:14
Speaker 1: didn't work out for Cooper, like you said, he was convicted.
26:16
Speaker 1: So none of that mattered except for establishing this president
26:20
Speaker 1: President President, you got it in this case. You could
26:23
Speaker 1: say it either way, I guess so. So that moves
26:27
Speaker 1: us on to seven years later, um U s v.
26:31
Speaker 1: Burr Um. This is John Marshall. Chief Justice John Marshall
26:36
Speaker 1: headed this one up and basically this had to deal
26:40
Speaker 1: with President Thomas Jefferson UM saying, Hey, they want you
26:45
Speaker 1: to come to provide these documents. It was a doozy's teacum,
26:50
Speaker 1: right do says dose two cease Dooce's teacum. And Jefferson
26:56
Speaker 1: was like, hey, here are some of those documents that
27:00
Speaker 1: you want, and they're like but where the rest of him?
27:02
Speaker 1: He was like, you know, I'm not gonna give you those,
27:05
Speaker 1: And I'm also not going to show up because you
27:06
Speaker 1: know what, I gotta be presidenting. Yeah, I'm the executive
27:11
Speaker 1: branch is too powerful and too or no, too important.
27:15
Speaker 1: It's the only branch that's supposed to be open seven
27:18
Speaker 1: three six, and I just can't get away, like I'm
27:22
Speaker 1: my my work is too important to come be part
27:24
Speaker 1: of this, and that gets I think it's less and
27:27
Speaker 1: less um able to prove these days. I think, yeah,
27:31
Speaker 1: for sure, like you can take off a half a day, right,
27:34
Speaker 1: you've got a BlackBerry, you can definitely email, keep keep
27:37
Speaker 1: tabs on work while you're gone. But yeah, so I
27:39
Speaker 1: thought the same thing too that it does does not
27:41
Speaker 1: hold water, but it does set a president for the president.
27:45
Speaker 1: Like you were saying to UM in those two cases
27:48
Speaker 1: basically say together again, the president doesn't have to come
27:52
Speaker 1: be part of this, and um, executive privileges is I
27:57
Speaker 1: guess where this came from from this particular the case
28:00
Speaker 1: where it's saying like, now the president doesn't have to
28:03
Speaker 1: have anything to do with this and the president's documents
28:05
Speaker 1: or the president's business and can't be subpoenaed because we're
28:10
Speaker 1: going to call this executive privilege, right. And there are
28:13
Speaker 1: five basically, uh five types generally of executive privilege that
28:18
Speaker 1: have been used thus far. One is presidential communications. Number
28:23
Speaker 1: two is the deliberative process. Number three is attorney client communications.
28:28
Speaker 1: Big one, uh fourth one is law enforcement investigations. And
28:33
Speaker 1: the fifth one is anything uh that's sensitive in terms
28:37
Speaker 1: of military or national security or diplomatic relations, that kind
28:41
Speaker 1: of thing. And that's the one in particular that UM
28:44
Speaker 1: has been upheld over the years is the idea that UM,
28:48
Speaker 1: like the there are secrets that the White House has
28:52
Speaker 1: that it just needs to be kept or else people
28:54
Speaker 1: are going to lose their lives or else, diplomatic ties
28:57
Speaker 1: are going to be upset, that kind of stuff, and
28:59
Speaker 1: so those should be protected under executive privilege. But the
29:02
Speaker 1: rest of the stuff has been subject to scrutiny over
29:06
Speaker 1: the years, for sure, Yeah, because obviously an executive president
29:10
Speaker 1: is going to try and draw that privilege as broadly
29:13
Speaker 1: as possible. Oh yeah, for sure. And that's that's especially
29:16
Speaker 1: been the case ever since Nixon onward, at least, where
29:20
Speaker 1: there's this idea called UM the unitary Executive theory, which
29:24
Speaker 1: is basically, like, you know, these are separate branches of government,
29:27
Speaker 1: and the executive branches in charge of everything to do
29:29
Speaker 1: with The executive branch has none it's none of Congress's business,
29:33
Speaker 1: and the UM the executive is basically this extraordinarily powerful
29:38
Speaker 1: single person, and that's been UM attempted to be invoked
29:44
Speaker 1: improved time and time again in throwing off congressional oversight.
29:49
Speaker 1: And that seems to be kind of what we're in
29:50
Speaker 1: the midst of right now is a really big test
29:53
Speaker 1: of this unitary executive theory in saying, like, no, not
29:57
Speaker 1: only just the president, but the your president staff, and
30:00
Speaker 1: in fact, the entire executive branch can ignore subpoenas from
30:05
Speaker 1: Congress because Congress doesn't have any authority over the executive branch.
30:09
Speaker 1: And that's kind of what we're witnessing right now. And
30:11
Speaker 1: on the one hand, well, there really there's really just
30:14
Speaker 1: one hand. The great value of having an executive like
30:18
Speaker 1: almost a UM, well a unitary executive is that if
30:21
Speaker 1: you're a vested interest or a very powerful group um,
30:26
Speaker 1: you've only got one person to to change over to
30:29
Speaker 1: your side, rather than five hundred of them, you know
30:31
Speaker 1: what I mean. So it's it's very dangerous. It also
30:35
Speaker 1: very much flies in the face of the three branches
30:37
Speaker 1: of government and the checks and balances that each one
30:40
Speaker 1: is supposed to have over the other, because part of
30:43
Speaker 1: part of Congress's role is what's called congressional oversight that
30:48
Speaker 1: says we're responsible for making sure you're not getting out
30:51
Speaker 1: of control the president, the executive branch has veto power
30:55
Speaker 1: saying Congress, you guys are nuts. This is this is
30:57
Speaker 1: no law that should be passed. I'm going to say
31:00
Speaker 1: no to this law. And then the judiciary has judicial review.
31:04
Speaker 1: They get to say this law is unjust or this
31:07
Speaker 1: UM executive agency's action is illegal. UM. And by doing this,
31:14
Speaker 1: these three branches keep one another from getting too strong.
31:17
Speaker 1: And the unitary executive theory flies in the face of
31:20
Speaker 1: that and says, nope, the executive branch is more powerful
31:22
Speaker 1: than all of them. The other two don't have checks
31:24
Speaker 1: over them, and let's just see what happens from here.
31:26
Speaker 1: That's right. Should we talk about Watergate? Yeah, so everyone,
31:31
Speaker 1: we should do a full episode on Watergate. I think
31:33
Speaker 1: I've said that before. I agree, but um, everyone knows
31:36
Speaker 1: what happened there. President Nixon was involved in some hinky
31:41
Speaker 1: activities and uh congressional committees. There was one special prosecutor
31:47
Speaker 1: in particular name Archibald Cox, who said, wait a minute,
31:51
Speaker 1: you've got these secret tapes you've been taping people in
31:54
Speaker 1: the Oval office. Turn them over. Here's a subpoena. We
31:57
Speaker 1: demand that you turn that over. Along with some other stuff,
32:00
Speaker 1: and we want you to come here and testify as well.
32:05
Speaker 1: And of course Nixon was like, I don't think that
32:07
Speaker 1: stuff's gonna happen. Um, here you go. Here's some of
32:11
Speaker 1: these tapes. Just ignore all the parts where it seems
32:15
Speaker 1: like it was heavily edited and sounds real funny because
32:19
Speaker 1: someone who was just in the room was no longer
32:21
Speaker 1: in the room, and there are non sequiturs all over
32:24
Speaker 1: the place. It's like that videotape of the guy who
32:26
Speaker 1: got the high score in Donkey Kong. Right, yeah, you
32:29
Speaker 1: know what I mean. Um, But executive privilege was what
32:34
Speaker 1: what he claimed he was protected by. So this went
32:37
Speaker 1: to the Supreme Court in nineteen seventy four with United
32:41
Speaker 1: States v. Nixon, and Chief Justice Burger's opinion sided everything
32:45
Speaker 1: from Justice Marshall's Marbury v. Madison to the one we
32:49
Speaker 1: just talked about, United States v. Burr. And basically it's
32:55
Speaker 1: they're they're walking a fine line there with the judiciary
32:57
Speaker 1: because they're saying, listen, the president needs to be confidential
33:01
Speaker 1: and protected when executing these duties, these constitutional duties, on
33:06
Speaker 1: the one hand, but on the other hand, uh, due
33:09
Speaker 1: process of laws is an is an important thing, and
33:12
Speaker 1: that's what we're in charge of. So they kind of
33:15
Speaker 1: ended up wanting to protect each of the branch's needs.
33:18
Speaker 1: It seems like, yeah, and they I think they did
33:20
Speaker 1: a very good job. And the fact that it was unanimous, UM,
33:23
Speaker 1: I think Rehnquist was involved with some of the people involved,
33:27
Speaker 1: so he um recused himself from voting, but it was
33:31
Speaker 1: unanimous eight to zero vote saying no, you gotta hand
33:34
Speaker 1: the tapes over because we don't think that you're just
33:39
Speaker 1: trying to protect um, like intelligent secrets or military secrets
33:44
Speaker 1: or diplomatic secrets. We think you're just basically using the
33:47
Speaker 1: cover of executive privilege to cover your own behind and
33:52
Speaker 1: that does not supersede due process in a court of law,
33:56
Speaker 1: which is going on over here with you know, the
33:58
Speaker 1: trials of these guys who broke into the water Gate. Um,
34:02
Speaker 1: so you gotta hand over the tapes, and in doing so, you,
34:05
Speaker 1: like you said, he cited UM another case Marbury v. Madison,
34:09
Speaker 1: And that's a really really important case in here too,
34:13
Speaker 1: which I think we should talk about starting now. Well,
34:17
Speaker 1: I wanted to mention another quick thing, um, before you
34:20
Speaker 1: dive into Marbury. Another case US v. A. T. And T.
34:23
Speaker 1: This just basically laid out that the courts are only
34:27
Speaker 1: going to get involved if everyone really tried in good
34:29
Speaker 1: faith to work it out beforehand. So like basically said,
34:32
Speaker 1: we're the last stop here. Don't just go run into
34:35
Speaker 1: the Supreme Court or the courts in general to figure
34:38
Speaker 1: this stuff out for you, right, Although I think that
34:41
Speaker 1: the Constitution says that the Supreme Court are the ones
34:45
Speaker 1: who are supposed to be running the show when it
34:47
Speaker 1: comes to like a high enough official. A case regarding
34:50
Speaker 1: a high enough official, Oh yeah, all all A T
34:53
Speaker 1: and T. The case said was you have to really
34:55
Speaker 1: try to work it out amongst yourself before it even
34:57
Speaker 1: gets to us. I got you, Okay, yeah, gosh, I see,
35:00
Speaker 1: I see what you're saying. Yep ye faith of course.
35:04
Speaker 1: So right, So in Marbury versus Madison, that one basically said, hey,
35:10
Speaker 1: there's this one component here. Yes, the the um we've
35:15
Speaker 1: established that the legislative branchs um Congress can issue subpoenas,
35:20
Speaker 1: and that the executive branch can exert executive privilege and
35:23
Speaker 1: say no to some subpoenas under some cases. But um,
35:27
Speaker 1: we're also going to say In US v. Nixon in
35:30
Speaker 1: nineteen seventy four that the court can say no, you're
35:33
Speaker 1: right to secrecy. Is is um overshadowed by a right
35:37
Speaker 1: to do process in most cases. But the one that
35:41
Speaker 1: was that really says at the center of this is
35:44
Speaker 1: the judiciary and that the judiciary has a right to
35:47
Speaker 1: decide cases where the legislative and executive branches are in dispute.
35:52
Speaker 1: Is this Marbury versus Madison case from I think eighteen
35:55
Speaker 1: o four, and it was, from what I understand, a
35:59
Speaker 1: master stroke of um legal eagleness by by Justice John Marshall. Yeah.
36:07
Speaker 1: So is along and short of that one that that
36:10
Speaker 1: Secretary of St James Madison he was trying to withhold
36:14
Speaker 1: the commission of William Marbury. Was that the case, Yeah,
36:17
Speaker 1: because the outgoing Adams had packed the courts with friendly
36:20
Speaker 1: judges and the commissions had not all been mailed out,
36:24
Speaker 1: and Madison was withholding some and they basically said, listen, man,
36:27
Speaker 1: you can't do this like it is your job. You
36:31
Speaker 1: shall commission all the officers of the United States. It's
36:35
Speaker 1: like right there in black and white, and you lose, right.
36:38
Speaker 1: So that was one part of it. But what Marshall
36:41
Speaker 1: figured out and what made this a master stroke of
36:44
Speaker 1: legal legalness is that the Um there was a something
36:48
Speaker 1: called a a writ of mandamus, which basically says you
36:52
Speaker 1: have to do this, which had been granted to the
36:54
Speaker 1: Supreme Court in Um the like an act. In sev. Nine,
37:00
Speaker 1: Marshall said, so, yes, Um, Madison has to give this
37:04
Speaker 1: over like this is just part of his duties, and
37:06
Speaker 1: he's following a law that Congress made, so he's subject
37:10
Speaker 1: to that law as a minister of the government. But
37:12
Speaker 1: at the same time, the rid of mandimous power that's
37:15
Speaker 1: the Supreme Court has been given were is unconstitutional. We're
37:19
Speaker 1: not in a position to issue a rid of manimous
37:22
Speaker 1: because under the Constitution we're not given that right. And
37:26
Speaker 1: so in doing that, he established the Supreme Court as
37:30
Speaker 1: the interpreter of what law is constitutional and what isn't.
37:35
Speaker 1: And he did that by saying, this law that gives
37:37
Speaker 1: us this amazing power is unconstitutional. So he did it
37:41
Speaker 1: by taking power away from the Supreme Court. But in
37:43
Speaker 1: doing so he gave the Supreme Court a tremendous um
37:47
Speaker 1: a tremendous advantage over the centuries in interpreting what law
37:51
Speaker 1: is constitutional and what isn't and placing itself as the
37:54
Speaker 1: arbiter of disputes between the legislative branch and the executive branch,
37:59
Speaker 1: which is I mean, that's a lot of what the
38:00
Speaker 1: Supreme Court decides is constitutionality and it's it all comes
38:04
Speaker 1: from the A ten oh four case landmark legal legal.
38:09
Speaker 1: Should you take another break? Sure? Man? All right, we'll
38:11
Speaker 1: take another break and talk a little bit about a
38:13
Speaker 1: little bit more about Nixon and what some other presidents
38:15
Speaker 1: have done when slapped with the saboena right after this,
38:19
Speaker 1: so we all know what happened to Nixon. Um, but
38:43
Speaker 1: the Justice did rule that, hey, dude, you gotta comply
38:47
Speaker 1: with this Deucey's tectum here and you gotta turn over
38:50
Speaker 1: these tapes. So Nixon uh turned over tapes. He did,
38:56
Speaker 1: and it all worked out in the end. Everybody's like,
38:57
Speaker 1: this is what you were protecting. This is fine, man,
39:00
Speaker 1: state president for a couple more terms, and he did,
39:03
Speaker 1: and the world was a better place for it, that's right. Uh.
39:06
Speaker 1: Flash forward to uh to Bill Clinton. That was okay.
39:12
Speaker 1: So he said, hey, listen, man, what goes on and
39:15
Speaker 1: that was much better. What happens in the Oval office
39:18
Speaker 1: stays in the oval office. Executive privilege. Um, they're like
39:23
Speaker 1: even that stuff. And he said, well, you know it's
39:27
Speaker 1: it's executive privilege falls under executive privilege. So he said,
39:33
Speaker 1: I have executivemmunity, I have that privilege, and UM, neither
39:37
Speaker 1: me nor my aids have to respond to these subpoenas.
39:41
Speaker 1: And then he fell into line. Eventually new Gingrich got
39:45
Speaker 1: him into line. Well, yeah, and and largely because of
39:49
Speaker 1: US v. Nixon. UM, they said, you know what, you
39:53
Speaker 1: can't stand by this broad executive privilege, stand behind this
39:57
Speaker 1: wall that you've built. You're gonna have to comply. And
40:01
Speaker 1: he did eventually, right, which is traditionally what happens, Like
40:06
Speaker 1: the Congress issues subpoenas, executive branch ignores it, the the
40:11
Speaker 1: Congress holds the executive branch in contempt, and the judiciary
40:16
Speaker 1: comes in and almost always says, no, you're over exerting
40:19
Speaker 1: your executive privilege to what they're saying, yeah, which you
40:23
Speaker 1: know that gives me hope because in the past president
40:26
Speaker 1: has been set that due process wins out over executive
40:29
Speaker 1: privilege kind of across the board, it seems like. But
40:33
Speaker 1: that that only holds um as long as two things
40:37
Speaker 1: are upheld. One that UM, the Supreme Court is an
40:43
Speaker 1: independent body, regardless of who appointed the judges. And then
40:47
Speaker 1: two if the as long as the executive branch recognizes
40:52
Speaker 1: the authority of the Supreme Court. This is where we
40:56
Speaker 1: are starting. Like some people can see far enough along
41:01
Speaker 1: this horizon that hey, this path we're heading down right now,
41:05
Speaker 1: there's a point where we could reach where they could
41:08
Speaker 1: be there could be a Supreme Court decision that says, yes,
41:12
Speaker 1: executive branch, you have to hand over these aids for testimony.
41:18
Speaker 1: They have to come testify about um, you know, Russian
41:23
Speaker 1: interference in the two thousand and sixteen election, or this
41:25
Speaker 1: call between the president and the Ukrainian president UM. And
41:30
Speaker 1: the executive branch still says no. And that is the
41:34
Speaker 1: point that everyone says, we have no idea what happens?
41:37
Speaker 1: Then we have no idea. Do you go arrest these
41:41
Speaker 1: you know, the secretary of the Treasury. Do you go
41:44
Speaker 1: arrest these cabinet members? This has never been done before,
41:48
Speaker 1: Like what remedy do you really have? And that's where
41:51
Speaker 1: that's where we are with testing out this unitary executive theory.
41:56
Speaker 1: How far can you kick the um the kind of
42:00
Speaker 1: unwritten rules of the constitution, Well, there's lots of written
42:03
Speaker 1: rules with Constitution, but also like the the unwritten rules
42:07
Speaker 1: and procedures that kind of have have guided all of
42:11
Speaker 1: this for so long. What happens when those things just
42:13
Speaker 1: stop being recognized as valid. What do you do? Well?
42:18
Speaker 1: I don't know, because in the in the past, through
42:21
Speaker 1: our history, and this is on both sides of the
42:23
Speaker 1: of the aisle, Democrats and Republicans have always, uh, not successfully,
42:29
Speaker 1: but they've always tried to argue that courts should not
42:32
Speaker 1: get in the subpoena battles and should not get involved
42:35
Speaker 1: with uh this executive privilege claim, right, and in particular,
42:40
Speaker 1: Trump's latest um, Trump's legal counsel's latest position, which I
42:45
Speaker 1: think came out in September of this year, is it's
42:51
Speaker 1: a doozy. It basically takes And here's here's something we
42:54
Speaker 1: need to remember here, Like this is not brand new
42:56
Speaker 1: with Donald Trump, right, Like if you if you can't
42:59
Speaker 1: stand Donald Trump, this is this is his White House.
43:03
Speaker 1: His administration is building on stuff that previous presidents have
43:07
Speaker 1: built on both Democrats and Republicans alike. There has been
43:10
Speaker 1: a real push basically since Nixon, to to instill as
43:15
Speaker 1: much power into the presidency and the executive branch as possible,
43:19
Speaker 1: and this is a an extreme version of that, but
43:22
Speaker 1: it's still kind of following the same path. But what
43:26
Speaker 1: they're what they're doing is more aggressive than what previous
43:29
Speaker 1: administrations have done. And they're basically saying this, if you
43:33
Speaker 1: subpoena us, uh, the executive branch, If you the Congress
43:37
Speaker 1: subpoena one of our people, any of our people, for
43:40
Speaker 1: any reason whatsoever, the President can say, no, do not
43:46
Speaker 1: do not respond to that subpoena, do not go before Congress,
43:49
Speaker 1: do not hand over those documents. I'm the president, I'm
43:51
Speaker 1: ordering you to. Um. Congress can issue a rid of
43:55
Speaker 1: contempt or find the person in contempt, but that's it.
43:59
Speaker 1: That's where it ends be Because the president can say, well,
44:01
Speaker 1: this is an inter branch dispute between the legislative branch
44:05
Speaker 1: and the executive branch. And because the UM, the judiciary
44:11
Speaker 1: can't be drafted or shouldn't be drafted in to solve
44:13
Speaker 1: these disputes. UM, that's all it will remain is an
44:18
Speaker 1: inter branch dispute. And in the Supreme Court really has
44:21
Speaker 1: no purview in deciding these cases. And when you have that,
44:26
Speaker 1: then that means that the executive branch has been removed
44:30
Speaker 1: from the oversight of law, it becomes above the law.
44:33
Speaker 1: The law no longer applies to it. And so whatever
44:36
Speaker 1: the president wants to do, whatever the President directs his
44:39
Speaker 1: or her agencies to do, is a de facto legal
44:44
Speaker 1: just because the president and the executive branch are not
44:47
Speaker 1: subject to the laws of the land, including rulings by
44:50
Speaker 1: the highest court in the United States. That's what the
44:53
Speaker 1: latest argument is setting us up for. Yeah, I mean,
44:56
Speaker 1: this is what the Justice Department. There was a great article,
44:59
Speaker 1: uh and the wh im Post by Harry Littman called
45:02
Speaker 1: the Justice Department's outlandish and arrogant position on congressional subpoenas. Uh.
45:07
Speaker 1: And this is from the article. It said, according to
45:09
Speaker 1: the Justice Department, there is no constitutional or statutory basis
45:13
Speaker 1: for a congressional committee to try to enforce his subpoenas
45:16
Speaker 1: in the federal courts where the executive branch has decided
45:19
Speaker 1: not to do so. Right. So basically, yeah, they said no,
45:23
Speaker 1: and so they said no, and yeah, and all of
45:25
Speaker 1: this arose from an opinion, um, regarding Trump's tax returns,
45:29
Speaker 1: I believe. Yeah, that's sort of where the whole thing
45:32
Speaker 1: got started. Yeah, where the Treasury Secretary Stephen Manuchian said no,
45:35
Speaker 1: we're not doing that, and Congress said, well, we're holding
45:38
Speaker 1: you in contempt. And then the Legal Office of Legal
45:40
Speaker 1: Counsel from the White House issued this opinion, and I
45:43
Speaker 1: mean it's a doozy, but it's also saying like, what
45:46
Speaker 1: are you guys gonna do? What can you do? And
45:48
Speaker 1: that's that's the that's the big question now well, and
45:52
Speaker 1: it makes you wonder what would have happened if darryl
45:54
Speaker 1: Isa's UH bill had gone through? That makes um subpoena's
45:58
Speaker 1: super enforceable because you know, we've seen it on again
46:03
Speaker 1: on both sides of the aisle, where one UH one
46:06
Speaker 1: political party will get mad and and vote something in
46:10
Speaker 1: that will come back to staying them later on on
46:14
Speaker 1: the hind end. It is. But also you also can't
46:17
Speaker 1: help but wonder, like will like is our republicans um
46:24
Speaker 1: loyalty to Congress greater than the republicans loyalty to the
46:30
Speaker 1: executive branch? Like there's it's like you know, in any restaurant,
46:34
Speaker 1: there's tension between the white staff and the kitchen staff,
46:37
Speaker 1: but they're all working at the same restaurant. They're all
46:39
Speaker 1: trying to do the same thing. We just get high quality,
46:42
Speaker 1: nourishing meals out to the patrons who are citizens like
46:45
Speaker 1: you and me. Right, but there's still tension. You're not
46:48
Speaker 1: you're not doing it fast enough for you. You burn
46:50
Speaker 1: these fries or something like that. But we benefit from
46:53
Speaker 1: that tension. We the patrons of this restaurant that we
46:56
Speaker 1: call America. Well, what what happen? End of the day.
46:59
Speaker 1: Every one just goes behind the restaurant and smokes a
47:02
Speaker 1: joint by the dumpster. You know, maybe that would make
47:04
Speaker 1: our our congress or o government work more efficiently, if
47:07
Speaker 1: if the executive branch and the legislative branch and the
47:10
Speaker 1: judicial branch all got together and burned a doobie again
47:13
Speaker 1: there by the grease trap, right exactly. I don't even
47:17
Speaker 1: remember what my analogy was was meant to. But we
47:20
Speaker 1: it's fine, but we um like that we are witnessing
47:25
Speaker 1: some historical stuff right now that that is not normal
47:29
Speaker 1: at all. I mean, like from Watergate stuff, and that
47:32
Speaker 1: I'm not even relating to impeachment proceedings. I'm just saying,
47:36
Speaker 1: like this level of ignoring congressional subpoenas maybe unprecedented, and
47:41
Speaker 1: if not, then the closest historical precedent we have is
47:45
Speaker 1: the Watergate scandal. Yeah, but I think Congress is one
47:49
Speaker 1: recourse to say that's fine, that's fine, molution, you just
47:53
Speaker 1: ignore us. We're going over here as Congress and we
47:56
Speaker 1: are altering this um. This our ability to a old
48:00
Speaker 1: people to say no, actually we can find you two
48:03
Speaker 1: dollars a day and we will do it. That that
48:07
Speaker 1: could be the leverage that gets people to actually comply
48:10
Speaker 1: with these subpoenas. But we'll find out, because if Congress
48:13
Speaker 1: has to actually pass a law to do that, the
48:16
Speaker 1: president has veto power over that well. And there are
48:19
Speaker 1: also all sorts of other things have nothing to do
48:21
Speaker 1: with this that Congress uses this leverage and or negotiation
48:25
Speaker 1: tactics like hey, do you want us to push through
48:28
Speaker 1: some of these uh appointees or should we just keep
48:32
Speaker 1: stalling forever? Um. All kinds of that stuff is on
48:35
Speaker 1: the table. But when you have a president that comes
48:37
Speaker 1: out in January and says, uh, you know what, I
48:40
Speaker 1: don't mind stall all you want. I like the term
48:43
Speaker 1: acting um because that gives me more leeway, then all
48:47
Speaker 1: of a sudden, that's not leverage anymore. You got anything else? No,
48:51
Speaker 1: very curious to see what happens with this McGan case.
48:53
Speaker 1: Probably nothing, and too will it be the crumbling of
48:55
Speaker 1: our democracy? Who knows. We'll find out in a few years. Um,
49:00
Speaker 1: if you want to know more about subpoenas, we'll just
49:02
Speaker 1: go look it up. And if you get a subpoena yourself,
49:04
Speaker 1: get a lawyer. Don't be stupid. Uh. And since I
49:07
Speaker 1: said don't be stupid, friends, it's time for a listener mail.
49:11
Speaker 1: I'm gonna this is about Obama's um healthcare. I got
49:19
Speaker 1: a bunch of stuff about this. I didn't realize I
49:20
Speaker 1: made a prediction. Okay, oh yeah, yeah, yeah, that's gonna
49:24
Speaker 1: have been sitting in the in the coffers, guys, about
49:28
Speaker 1: fifteen months ago, I started my journey through the stuff.
49:30
Speaker 1: You should know. Archives have been on a steady campaign
49:32
Speaker 1: about twelve to sixteen episodes a week. That's healthy. Uh,
49:36
Speaker 1: why I'm writing though? Ten years ago, Chuck made a
49:38
Speaker 1: bold prediction and the rumors, the myths and truths behind
49:42
Speaker 1: Obama's healthcare plan episodes? Did we do like four of those? Um? Wed, yeah,
49:49
Speaker 1: I think we did for you're right, but this one
49:51
Speaker 1: was specifically about that episode. Uh, Chuck, I said, call
49:55
Speaker 1: me in ten years if there are no more private
49:57
Speaker 1: insurance companies, because that was one of the big knox
50:00
Speaker 1: on it. It's like, this is gonna do away with
50:02
Speaker 1: private insurance and I'll buy you a beer. Magic Um.
50:08
Speaker 1: Chuck legitimately said, I'm on record, and he extended the
50:11
Speaker 1: bet to anyone out there. Now that statement was more
50:14
Speaker 1: of a gentleman's bet than a legal promise. However, Uh,
50:17
Speaker 1: that is more binding in my opinion. Nonetheless, I would
50:20
Speaker 1: like to congratulate you, Chuck. I was getting worried there
50:23
Speaker 1: for a second on the expiration of that term and
50:26
Speaker 1: that promissory statement. That could have been a pretty pricey
50:28
Speaker 1: liability that things turned out differently. A million beers, Chuck,
50:33
Speaker 1: every single one of our listeners would have written in
50:35
Speaker 1: and asked for it. That is from Jack Simmons. Nice going, Jack,
50:40
Speaker 1: and welcome to the club. We're glad you've found us,
50:43
Speaker 1: and even more so that you like us, so we'll
50:45
Speaker 1: do our best to keep it up for you and
50:47
Speaker 1: everybody else that emails a couple of months, although he's
50:49
Speaker 1: probably forgotten about it. Sorry, that's right, he's moved on
50:52
Speaker 1: to Pod Save America. That's right. Uh, Well, if you
50:55
Speaker 1: want to get in touch with us like Jack did.
50:58
Speaker 1: You can go on to stuff I few Should Know
51:00
Speaker 1: dot com check out our social links There. You can
51:03
Speaker 1: also send us an email, wrap it up, spank it
51:05
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51:08
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51:13
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51:16
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51:18
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