When Can The White House Use Executive Privilege?

Jan 17, 2018
Originally published on January 18, 2018 1:58 pm
Copyright 2018 NPR. To see more, visit http://www.npr.org/.

KELLY MCEVERS, HOST:

Former White House strategist Steve Bannon has spent a total of 11 hours on Capitol Hill this week. Lawmakers who barely agree on anything reached a consensus on one point. They were pretty unhappy that Bannon declined to answer many of their questions. Bannon said the White House might want to assert executive privilege, which means he couldn't talk. With us to talk about this is NPR justice correspondent Carrie Johnson. Hey, Carrie.

CARRIE JOHNSON, BYLINE: Hi, Kelly.

MCEVERS: So just remind us. What is executive privilege?

JOHNSON: It's the idea that a president has a right to withhold information from Congress or the courts. The White House says that's important to protect internal deliberations on important issues. Intended to help get the president some good and candid advice, President Dwight Eisenhower came up with the phrase. Since then, lots of presidents from both political parties have used it to try to shield conversations and documents on sensitive subjects.

MCEVERS: So now with the case of Steve Bannon, members of Congress are upset because, you know, someone connected to the executive branch didn't want to answer their questions. I mean, is that unusual?

JOHNSON: It's not really unusual, but Steve Bannon is no longer in the White House, and he actually wouldn't even answer questions about his talks during the transition - before President Trump became President Trump. Lawyers I talked to say that's kind of a big stretch. There's very little law, they say, to support him keeping secrets during the transition. There is one president at a time, and the president back then was Barack Obama.

But Kelly, when it comes to Bannon's time in the White House, that approach is not so unusual. In fact in several appearances in Congress last year, Attorney General Jeff Sessions declined to talk about his contacts with the president about Russia. The attorney general said the White House might assert the privilege, but the White House didn't actually send a letter to Capitol Hill.

While that sounds unusual, I talked today with lawyers who are Republicans and Democrats. They said that asserting the privilege usually happens very late in the process after there's been a breakdown in negotiations with Congress and the White House.

MCEVERS: So let's say this impasse continues. Congress says answer our questions; somebody like Steve Bannon says no. What kind of power does Congress have to force someone from the White House to answer?

JOHNSON: Theoretically Congress can vote to hold a federal official in contempt. But let's get real. Republicans are in charge of the White House, the House and the Senate right now. Are they really going to want to cause a PR problem for the White House? It's a different scenario, though, with opposite parties.

Remember; President Obama's Attorney General Eric Holder was held in contempt during the Fast and Furious scandal, and so were a pair of George W. Bush's aides - Josh Bolten and Harriet Miers, who declined to turn over documents about the firing of U.S. attorneys. In those cases people aren't taken into custody to get prosecuted. They have a good defense - a get-out-of-jail-free card - that they were following the direction of the president.

But there are usually some big court fights that produce some unexpected outcomes, like early years in the Obama administration. Those lawyers spent a lot of time defending the Bush officials because the principle of the power of the presidency is so important.

MCEVERS: And then back to Steve Bannon, he also got a subpoena from the special counsel that's investigating the Trump campaign's tie to Russia. Could he use this idea of executive privilege to avoid questions from him, special counsel Robert Mueller?

JOHNSON: Lawyers I talked to today said no. There is court precedent that goes all the way back to Richard Nixon. In those cases, a judge balances the president's privilege against the need for evidence in criminal trials and grand jury proceedings. That's squarely where Robert Mueller's Russia investigation is now, so Bannon and other people who've been interviewed, like former chief of staff Reince Priebus, have to answer prosecutors' questions.

Even the White House's lawyer, Don McGahn, has to answer because back in 1998 during the Whitewater scandal, a court ruled that attorney-client privilege does not shield information related to federal crimes. That was 20 years ago - relevant all over again today.

MCEVERS: NPR justice correspondent Carrie Johnson on executive privilege. Thank you very much.

JOHNSON: You're welcome. Transcript provided by NPR, Copyright NPR.