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

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