Selects: What's the deal with subpoenas?
In this episode of Stuff You Should Know, hosts Josh Clark and Chuck Bryant explain how subpoenas work in the U.S. legal system. They break down the two main types of subpoenas—those requiring in-person testimony and those demanding document production—and explore how courts and Congress differ in their ability to enforce these legal instruments.
The hosts trace the development of executive privilege through historical court cases, from its early establishment in 1800 to the watershed United States v. Nixon case in 1974. They examine how different presidential administrations have interpreted executive privilege, with particular focus on the Trump administration's approach to congressional subpoenas and its potential impact on the balance of power between branches of government.
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1-Page Summary
Subpoenas and Legal Tools Used by Congress and Courts
Josh Clark explains that there are two main types of subpoenas: the subpoena ad testificandum, which requires in-person testimony, and the subpoena duces tecum, which demands document production. While both courts and Congress can issue these legal instruments, their enforcement mechanisms differ significantly.
According to Chuck Bryant, courts can enforce their subpoenas through fines and jail time, though these measures are rarely used. Congress, on the other hand, faces more limitations in enforcing its subpoenas. While Congress can issue contempt citations, enforcement typically depends on cooperation from the Justice Department, which sometimes declines to pursue cases, particularly when executive privilege is involved.
The Historical Development and Limits of Executive Privilege
Josh Clark and Chuck Bryant trace the evolution of executive privilege through key court cases, starting with US v. Cooper in 1800, which first established presidential exemptions from certain legal procedures. However, the landmark 1974 case United States v. Nixon significantly shaped the modern understanding of executive privilege.
In this case, Chief Justice Burger's court determined that while presidential confidentiality is important, it cannot override due process and the rule of law. This decision forced Nixon to comply with a subpoena for the Watergate tapes, establishing that executive privilege is not absolute.
Conflict Between Trump Administration and Congress Over Subpoenas
Josh Clark discusses how the Trump administration took an unprecedented stance on executive privilege, arguing that the president could direct aides to ignore congressional subpoenas. This position challenged established norms about Congress's oversight capabilities and the judiciary's role in resolving branch disputes.
The administration's approach is exemplified by White House counsel Don McGahn's refusal to testify when subpoenaed. While Congress has sought legal action to enforce its subpoenas, including through proposed legislation and lawsuits, the outcomes remain uncertain. Clark suggests that if courts rule in favor of the administration's position, it could significantly weaken Congress's oversight powers and the system of checks and balances.
1-Page Summary
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Actionables
- You can deepen your understanding of legal processes by role-playing a mock trial with friends or family, assigning roles like judge, plaintiff, defendant, and witnesses, and using a fictional case to explore how subpoenas might be issued and enforced. This activity will help you grasp the practical implications of subpoenas and the balance of powers in a fun and engaging way.
- Start a blog or social media page where you analyze current events related to congressional subpoenas and executive privilege, using layman's terms to explain the significance of these events to a broader audience. By breaking down complex legal concepts into everyday language, you contribute to a more informed public discourse.
- Engage in local government meetings or town halls to observe and question how oversight and checks and balances operate at a community level. This firsthand experience will give you a clearer picture of how these principles are applied in practice and the importance of civic participation in upholding democratic processes.
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Subpoenas and Legal Tools Used by Congress and Courts
Subpoenas are crucial legal instruments utilized by both Congress and courts to ensure compliance with investigations and legal procedures.
Two Types of Subpoenas: Ad Testificandum and Duces Tecum
Subpoena Ad Testificandum vs. Subpoena Duces Tecum
The types of subpoenas include the subpoena ad testificandum, which commands a person to appear in person, typically to testify in a legal setting. The other type, subpoena duces tecum, compels the production of documents or tangible evidence. Josh Clark explains that these legal tools are not limited to courtrooms but can extend to any legal authority vested with the power to issue them.
Judicial and Legislative Branches Issue Subpoenas
Both the judicial and legislative branches have the authority to issue subpoenas. While the types may differ, the intent of garnering testimony or evidence remains consistent.
Courts Can Enforce Subpoenas Through Fines or Jail, Though Rarely Exercised
Courts ensure the effectiveness of their subpoenas by holding the power to levy fines and threaten jail time for those who do not comply, as mentioned by Chuck Bryant. Subpoenas are also negotiable, and lawyers can argue to limit their scope or negotiate conditions. Even though enforcement like fines and jail is mentioned, the podcast does not elaborate on how often these are actually used by courts. In the case of court enforcement, civil judgment may come into play, potentially leading to fines or jail time, but this process is generally slow.
Congress's Subpoena Enforcement Limited, Relies On Executive/Courts
On the legislative side, issuing subpoenas is a power long held by Congress, one that is dependent on individual committee rules. In terms of enforcement, Congress traditionally has not frequently exercised inherent contempt power, which allo ...
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Subpoenas and Legal Tools Used by Congress and Courts
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Clarifications
- A subpoena ad testificandum requires a person to testify in person, typically in a legal setting. On the other hand, a subpoena duces tecum compels the production of documents or tangible evidence. These two types of subpoenas serve different purposes in legal proceedings.
- Courts have the authority to enforce subpoenas by imposing fines or threatening jail time on individuals who do not comply. However, in practice, the use of fines or jail as enforcement measures for defying subpoenas is rare. Courts may opt for alternative methods or negotiations to ensure compliance rather than immediately resorting to fines or jail time.
- Congressional subpoenas are legal orders issued by Congress to compel individuals to provide testimony or documents. However, enforcing these subpoenas can be challenging, as Congress historically relies on the executive branch or courts to take action against non-compliant individuals. This reliance means that the effectiveness of congressional subpoenas often hinges on the willingness of the executive branch, particularly the Justice Department, to pursue legal actions against those who defy the subpoenas. In cases where enforcement actions are needed, Congress may need to navigate the complexities of interbranch relations and legal procedures to ensure compliance with its investigative powers.
- When someone defies a congressional subpoena, the issuing committee can vote to issue a contempt citation. This citation must then be approved by the full chamber for any action to be taken. The effectiveness of such citations depends on the Justice Department's actions, as they can choose to prosecute based on executive privilege. If the Justice Department d ...
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The Historical Development and Limits of Executive Privilege
Josh Clark and Chuck Bryant delve into the concept of executive privilege and its constraints as shaped by key legal decisions throughout U.S. history.
Early Court Cases Established Executive Privilege
During a discussion, Josh Clark and Chuck Bryant look back at a court case in 1800, US v. Cooper, where the court chose not to subpoena President John Adams. This early decision established that presidents have certain exemptions from normal court processes. Clark and Bryant touch on the fact that from the very beginning, U.S. presidents have been shielded from certain legal procedures that would otherwise involve them directly.
Executive Confidentiality Has Limits, Precedents Acknowledged
Two key cases laid the groundwork for the notion of executive privilege: the president’s ability to avoid participation in legal processes and to prevent presidential documents from being subpoenaed. However, these precedents do not suggest that the executive branch has an unchecked right to confidentiality.
1974 Supreme Court's United States V. Nixon Ruling Restricts Executive Privilege During Watergate
Court Affirms Presidential Secrecy Not Absolute, Must Balance With Due Process and Rule of Law
The conversation then shifts to the events of the Watergate scandal, where congressional committees and a special prosecutor demanded secret tapes from President Nixon. Nixon resisted the subpoena by claiming executive privilege, which led to the landmark Supreme Court case United States v. Nixo ...
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The Historical Development and Limits of Executive Privilege
Additional Materials
Actionables
- You can explore the concept of checks and balances by role-playing different government branches in a board game night with friends. Create a simple game where players act as members of the executive, legislative, or judicial branches, making decisions that affect the others. For example, the 'executive' can attempt to use 'executive privilege' to withhold information, while the 'judiciary' can challenge this, simulating the tension between privacy and transparency.
- Start a book club focusing on historical fiction or non-fiction that delves into constitutional crises and presidential powers. By discussing characters and real-life figures who grapple with the limits of their authority, you'll gain a deeper understanding of the delicate balance between executive privilege and the rule of law. For instance, choose a novel set during the Watergate scandal to see how these themes play out in a narrative.
- Engage i ...
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Conflict Between Trump Administration and Congress Over Subpoenas
The administrations of both President Trump and President Obama have seen significant conflicts with Congress over the enforcement of congressional subpoenas, highlighting important legal and constitutional issues regarding the oversight power of Congress and the judiciary's role in executive privilege disputes.
Trump Administration's Expansive View: President Can Direct Aides to Defy Congressional Subpoenas
Josh Clark explains that the Trump administration has taken a broad stance on executive privilege, suggesting the president can instruct aides to ignore congressional subpoenas. This view implies that judiciary authorities lack the power to intervene in such disputes, effectively suggesting immunity from oversight for the executive branch. This challenges established norms and raises questions about Congress's oversight capabilities and the judiciary's role in resolving branch conflicts.
Challenges Norms and Precedents on Congress's Oversight and Judiciary's Role in Branch Disputes
Historically, both Democrats and Republicans have preferred to keep judicial involvement in subpoena disputes to a minimum. However, the position held by the Trump administration challenges long-established procedures concerning congressional oversight and the judiciary's role in resolving such disputes. Clark remarks that by this logic, the executive branch, under Trump's guidance, would not be subject to the laws of the country or Supreme Court rulings, placing the president above the law. White House counsel Don McGahn's refusal to testify or answer his subpoena under Trump's direction is cited as an example of this unprecedented noncompliance.
Congress Seeks Legal Action to Enforce Subpoenas; Outcomes Uncertain
Congress remains tasked with maintaining checks on the executive branch to prevent any one branch from acquiring too much power. To enforce its subpoenas, Congress has considered various actions, including a bill sponsored by Representative Darrell Issa to enhance subpoena enforcement, although it did not pass in the Senate. A court compelled Eric Holder to co ...
Here’s what you’ll find in our full summary
Conflict Between Trump Administration and Congress Over Subpoenas
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Counterarguments
- The concept of executive privilege is constitutionally recognized, and there may be instances where it is legitimate for a president to instruct aides not to comply with congressional subpoenas to protect sensitive information.
- The balance between congressional oversight and executive privilege is complex, and there may be valid legal arguments supporting the Trump administration's position that are not fully explored in the text.
- The effectiveness of Congress's oversight function does not solely rely on subpoena power; there are other mechanisms and powers at its disposal.
- The historical preference to minimize judicial involvement in subpoena disputes does not necessarily mean that the judiciary should never be involved, especially in cases where the executive and legislative branches are at an impasse.
- The assertion that the Trump administration's stance places the president above the law is a subjective interpretation; others might argue that it is a defense of the separation of powers.
- The effectiveness of imposing fines on individuals who fail to comply with subpoenas is uncertain an ...
Actionables
- You can educate yourself on the legislative process by tracking a bill from introduction to enactment using resources like Congress.gov, which will help you understand the complexities of how laws are made and the hurdles they face, including presidential vetoes.
- By following a bill's journey, you'll gain insight into the legislative checks and balances and the role of Congress's oversight. For example, if a bill related to subpoena enforcement is introduced, observe the debates, amendments, and votes it undergoes. This hands-on approach demystifies the legislative process and underscores the importance of each branch's powers and limitations.
- Start a discussion group with friends or community members to debate the implications of executive power on democratic processes, using current events as case studies.
- This encourages critical thinking and public engagement with democratic principles. For instance, use the scenario of an administration defying subpoenas as a starting point to explore the balance of power between the executive and legislative branches. Such discussions can lead to a deeper appreciation of the need for accountability and checks in government.
- Engage with your representatives by writing letters or emails expr ...
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