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Morain

02/16/23

2/16/2023

Public officials, both past and present, who refuse to testify or to answer a subpoena take a big risk. And they have no good choices.

Governmental executives, like presidents and governors, who choose not to cooperate with investigators enjoy some legal protections. American jurisprudence in some instances grants them the right to withhold testimony, for example if it would serve no public purpose.

There’s a good reason for that. If all communications between a president and his senior staff members about possible executive actions could be revealed to the public on demand, open and frank discussions among them would be difficult. It is in the public interest that leaders be able to chew over various options without fear of having all their thoughts revealed later for public display.

But there’s a catch. Such a claim to “executive privilege” becomes invalid if the discussions take place in conjunction with criminal activity.

That’s where black and white turn to gray. If an executive’s actions turn out to be against the law, the public has the right to know the extent of the illegality, and exactly who participated in it. That’s when testimony and subpoenas play their role.

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President Nixon provides a classic example. During the Watergate scandal he tried to claim executive privilege in order to withhold Oval Office tape recordings from public view. The Supreme Court ruled against him, and he was forced to turn over the tapes. He resigned shortly afterward.

Former President Trump on several occasions has refused to testify, give depositions, or respond to subpoenas from investigative committees and prosecutors. In nearly all those instances he has invoked executive privilege and in most cases has stonewalled successfully, while the wheels of justice turn slowly. 

Trump is now once more considering a claim of executive privilege, not for himself but for former Vice President Pence. The U.S. Department of Justice has subpoenaed Pence to provide testimony related to the January 6, 2021, attack on the U.S. Capitol.

Pence became a central figure on January 6 because of his role in presiding over the presidential electoral certification process following the November 2020 election. Trump strongly pressured Pence to claim the election results were invalid, and Pence was present during significant meetings between Trump and his leadership team shortly before the attack on the Capitol. The Justice Department would like to hear from Pence about Trump’s pressure and what the Trump team had in mind.

Pence himself can’t invoke executive privilege. That has to come from a president, and there’s certainly a question whether a former president can do it. Trump and Pence have had a rocky relationship since January 6, and if Trump seeks executive privilege for his former vice president, it will be to shield himself from the investigation, not to protect Pence.

But setting aside the legal arguments, a public figure’s reluctance to provide important information in an investigation immediately raises questions about what he or she is trying to hide.

There are several possible reasons. 

One might be a philosophical belief in the validity of the executive privilege claim in all cases. 

Another might be that the information provided in testimony or in a deposition would not square with what the official had earlier told the public and the press. If that turns out to be the case, the damage to the official’s reputation and popularity could be irreparably damaged.

A third reason, and the most consequential, is that truth-telling could result in criminal penalties. That’s why individuals called to testify sometimes claim the right to avoid self-incrimination—in other words, to take the Fifth Amendment—rather than invoke executive privilege. 

Former President Trump has invoked the Fifth Amendment in several previous investigations. But doing so has automatically made him a suspect.

The bottom line: executive privilege and the Fifth Amendment do play a role—sometimes a legitimate one—in modern jurisprudence. But no individual is forbidden to reveal all the facts in a case when called on to do so, regardless of legal protections. Just because you don’t have to doesn’t mean you can’t.

The penalties for perjury in a court of law are severe. If someone has done nothing wrong, there’s nothing for him or her to fear from giving true testimony. Any refusal to do so calls for further investigation. 

It’s just common sense. ♦

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