What's the deal with subpoenas?

Subpoenas are all the rage. But what do they even mean if someone can just ignore it? Learn this and a lot more in today's episode. 

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Episode Transcript

Speaker 1 (00:01):
Welcome to Stuff you should know, a production of My
Heart Radios How Stuff Works. Hey, and welcome to the podcast.
I'm Josh Clark, and there's Charles W. Chuck Bryant, and
there's Jerry Jerome Rowland over there, the Legal Eagles of podcasting.

(00:21):
Who can I be Daryl Hannah? Yes, I call Barbara Hershey.
I don't think so. Who was it, oh, Legal Eagles?
I know Deborah Winger? Yes, was Darryll Hannah even in
that Now, yeah, she was the client of Deborah Winger.
And you're not Redford? No, I always have to be
read for everybody's always like that. Guy's a regular Robert Redford.

(00:43):
He'll play him in this scenario. Right, That's that's the
street chatter. Yeah. Can I still be Barbara Hershey even
though she wasn't in the movie. Sure, I think I'm
thinking of beaches. Oh well, that means I get to
be Bette Midler? Right. I wonder how many pods save
America Seners we just lost who it just casually decided
to give us a chance? I want to learn about subpoenas.

(01:05):
Right before we get going, though, can we quickly thank
the cities of Orlando and Greater Orlando and Florida in
New Orleans and Greater Louisiana. Yes, for two fun live shows. Yeah,
those were a lot of fun. Um. Let's see. We
did Orlando on October nine, I think, and then the

(01:25):
tenth for New Orleans. Regardless, it was night back to
back to fund filled nights and they were just both
amazing shows. Yeah, and when this comes out, I think
New York will have been over. So thank you New York.
Oh yeah, yeah, we we presume it's going to have
been a great time that three night run at the Bellhouse.
They're always great there. And that's it too. That's it

(01:46):
for us for the for the year, Chuck, So, I
mean thank you to everybody who came out to see
our shows this year. Yeah. Can we go ahead and
tease our our January scheduled? Should we not? I think
we can't sure? All right, Well, well we're hoping to
be back at Sketch Fest again, and then what do
we settle on? I don't know settling is the right

(02:08):
way to put it. The Seattle we're doing Seattle, we are, Yeah,
and normally for a January swing we do Portland's Seattle
Sketch Fest. Well, We've got the I Heart Radio Awards
in there in Los Angeles, and we just you know,
kind of have to go to that. Um no, sorry,

(02:28):
the I Heart Podcast Awards. They don't care about us
at all at the radio Awards. Now. We can't even
get in that building, right exactly. So we said, okay, well,
we gotta we gotta pull out one of our shows
because we're old men and we just can't spend that
much time on the road. So instead we're going to
take Portland's and put it with another town in the spring.
So don't worry, Portland, we will be out there maybe

(02:49):
maybe the Cove. That's what that's the talk, that's the
chatter around town. But we have no dates confirmed yet.
But this just look for us again in the Pacific
Northwest at the beginning of the year. It's a much
better way to put it. So do you want to
talk about subpoenas? You got any other housekeeping to do?
I don't think so. Um, subpoena's weird spelling. Well, yeah,

(03:11):
so I looked up the word, and subpoena is actually
two words. It means under penalty and it's typically the
first two words that were read in this rid of subpoena,
basically saying, under penalty of um blah blah blah. Yeah,
I was thinking all I could think about was really
dirty dark stuff. Yeah, so I just let you fill

(03:35):
in the blah blah blah. But anyway, under penalty of whatever,
you need to do one of two things. Uh, And
there are two types of subpoenas that everybody, you know,
everybody hears subpoena and you think, like Law and Order,
Maybe visions of Central Park run through your head because
that's your only exposure to Central Park is from Law
and Order, or you think of the US government, because

(03:57):
a lot of this is going to be about congressional subpoenas,
because that's really the juiciest subpoena. Yeah, that's It's not
like it's new that Congress has just recently started issuing subpoenas.
It's new in the conscious of America in this this age,
this generation. I mean, it's been going on for a while.
But normally when people think subpoenas until like basically two thousand, seventeen,

(04:18):
sixteen eighteen, um, not necessarily in that order. Um, most
people thought of courtroom subpoenas, and that is you know,
typically the subpoena most people are ever going to come
up against in their lifetime. That's right. But you mentioned
the two types. You want to break out your Latin
or shall I you take the first, I'll take the second. Okay,

(04:40):
The first one's easy. The first one is subpoena add
testify candem. Wow, did you see that? You just made
a mouse appear and run out of the room. The
next one, so that I was so sorry. The first one,
the one you just said, that means you gotta come
to court. You just nailed it. Yeah, it says that
you to come and testify, and you might not be

(05:03):
um a party to the lawsuit like this is. It
can be a civil case or a criminal case. It's
a big thing to point out, um, But basically it's
saying you have some information. You witnessed an act, um,
you overheard a conversation the the defendant confess something to you.
We need you to come to court and tell your story.

(05:24):
And that's what that first subpoena is saying to do. Yeah,
and not necessarily court court, but it can be any
kind of legal authority. Yeah, it could be a deposition,
it could be an arbitration. Um. But typically it's the
authority of a court of law to basically say we're
going to levy a fine against you, or we're going
to arrest you and put you in jail if you

(05:44):
don't listen. That's that's used to um to kind of
enforce subpoenas. So the second one is the subpoena doocey's teacum, Hey, nice,
thank you um. And that is basically saying, hey, you
have a document, you have of a hair sample, you
have some sort of bodily fluids we want to get
our hands on. You have a compute yeah, or a

(06:08):
computer hard drive, um, you know something like that that
we want you to produce because we want to use
it as evidence. And there's a really important point to
put here, Like a court is saying a court or
an official of the court or of the government is saying,
we want you to do this because we have this

(06:29):
lawsuit going on and you have something we need. But
it's not necessarily the judge saying, and the judge is
signing off on it. It's really a lawyer or of
for one side of the other saying, hey, I heard
that this person has the secret tape and I need
to get my hands on it, Judge, can you order
this person to bring it to me so that I
can enter it into evidence. And then the judge says,
speak to my clerk, and then the clerk of the

(06:52):
usually the clerk of the judge who's handling that case. Um,
they say, talked to the hand. Yeah, and they'll generally
issue it on uh, unlike official court letter head and
official documentation. It's not like the judges washing their hands
of it necessarily. No, No, I'm sure like if they
do something egregiously wrong with the judge is gonna hear

(07:12):
about it and punish them, that's right. And then it
served um, usually in person, uh kind of you know,
hand it to you like on the TV shows and
in the movies. Yeah, either by a sheriff's deputy or
a process server. Yeah, but not always it it depends
on if it's congressional um, or if it's you know,
civil regular josh mos stuff. Yeah. Well yeah for sure.

(07:37):
But I think even if it is regular civil josh
Mos stuff, you can still go higher the sheriff's department
to serve papers, to serve a subpoena, Oh for sure.
I think the congressional ones are not served by a sheriff. Oh,
I see who do they use? I think it depends
it could. I mean the way congressional subpoena's work is
all sort of dependent on the individual committee that's seeking subpoena,

(08:01):
So they all have their own individual rules about like
whether you need a majority vote to even get a subpoena,
or whether the chair of that committee is you know,
has the power to h grant or request to subpoena. Right,
I've read some of them know that it's a real
downer to get a subpoena, says some congressional committees used
that mascot from the nineteen eight four Olympics, the Eagle

(08:25):
to come issue your papers to you. I don't remember
that one. You don't remember that eagle? Now? Was this
like a cartoon eagle from? Yeah? I mean all I can.
I can't get past the Atlanta Olympics mascot. That's why
I can't get back to nineteen eighty four? Was it?
What's it? Or who's it? I don't even know. It
was one of those two. What was that thing? I

(08:46):
don't know. It was a last last minute thing. What
was the name it was? What's it? Or who's it
was it? Yes, yes, man, it was bad. I was
out of town. I fled. You didn't miss anything. But
I do remember watching the opening uh whatever they're called,
the opening opening ceremonies, and seeing the stainless steel pickup

(09:09):
trucks driving around and just thinking, oh boy. Yeah. And
I for those of you who are like, they've talked
about this before, yeah, we have, and we're still that
upset about it. We'll talk about it again in five
more years. We haven't forgotten. Yeah, stainless deel pickup trucks
they haunt. I have dreams about those trucks. Yeah, if
they're just circling you playing striper at the loudest possible volume. Man. Okay,

(09:32):
So we've got different kinds of subpoenas, but both of
them apply to either courts of law or Congress. So
there's one big question that most people who get a
subpoena ask themselves the moment they're served the paper, and
that is, can I ignore this? Do I have to
do this right? We get what happens to me if

(09:53):
I just pretend like I never got this, And that's
really tough to do. I was reading about process servers
and Um, they people who are issuing the subpoena or
the lawyer who's asking for the subpoena to say, they
want some sort of proof that says you got that paper,
so they have to. Um. There's like certain rules and
regulations to serve to serving somebody with a subpoena, so

(10:14):
it's really difficult to pretend like you're not, like you
didn't get it, and a lot of people actually go
to a tremendous amount of trouble to avoid being served
as subpoena. They will like move around, they will pretend
they're not home. They won't let anyone else answer the
door because in some states you can leave it with
a competent thirteen year old or eighteen year old. They'll
stick their hands in their ears and go la la la,

(10:36):
la la la. Right exactly, they'll do a lot of
stuff to keep from being served. But that's actually it
will just delay being served in the long run, you
will still there's other remedies they can use. They can
mail it to your house certified mail, and if the
male person says this was dropped off made it to
their house, that's enough. Or if you can say I

(10:58):
took the numbers off my mailbox where you get to
do now, chump um. They can actually post an ad
in the local legal organ the newspaper, and then that
will be considered serving you. So either way, you're going
to end up being considered to have received the subpoena eventually,
and if you do, you probably shouldn't ignore it. Yeah,

(11:19):
I mean, it says here in this article which most
of this is from the House Stuff Works article about subpoena's,
but it says, you know, it's a lot easier if
you just go or produce the documents. But as we'll
cover here and a lot of this congressional oversight stuff,
that is not the route that people take generally in government. Yeah,
and I thought it was kind of an oversight to

(11:41):
not say, like, but also, if somebody serves you with
the subpoena, like go you don't necessarily have to hire
a lawyer, but at least consult with one, like get
some legal advice, say this is what I got, you know,
what what should I do with this? Is this? You know, well,
you know, there's a lot of questions that you should
have answered before you just act down a subpoena. Yeah,

(12:01):
and you know, when it comes to ignoring subpoena's. Uh.
And that's what a lot of this will be about,
is um is what's going on with our government right
now and previously and what happens if you defy Congress
And is there any accountability for that or can you
just sit on your hands say nope? But there have
been some very famous um cases in the past, you know,

(12:25):
fifteen years or so where subpoenas have been ignored. Uh,
starting well, I'm not starting with but we can start
with Eric Holder, Attorney General for Barack Obama. Yeah, that
was a big one that was part of the operation, uh,
the Fast and Furious scandal. Scandal. Yeah, it was definitely
a scandal. It um It from what I remember, it

(12:47):
involved like secret gun sales or else. Some guns were
like led out into the community to be traced to
see who they went to, and one of them ended
up being used to murder an ice officer I believe. Well,
Attorney General Eric Holder refused, under direction of Obama, to
answer that subpoena, and he became the first sitting cabinet

(13:08):
member to be voted in contempt of Congress. That right, Yeah,
And you know you're like, oh, what happens in well,
three and a half years later, a judge ruled Um
that he did not have the right to defy Congress.
And by that time there was a new Congress, and
it was a moodpoint. That's a really big big thing

(13:29):
to remember, is like a contempt of Congress vote where
you are supposedly in trouble for ignoring a subpoena, only
lasts as long as that session of Congress, unless the
next session of Congress wants to pick it up. Yes,
but then they have to hold another vote. And the
chances that that the that there has been a change
in leadership potentially in that Congress is you know high

(13:52):
enough that if you if you make it through that Congress,
you know, um, going into recess, you're you're probably going
to get away with it. And I mean that's par
for the course. It wasn't just Eric Holder who got
away with it. Um, Harriet Myers, who was a White
House counsel, the George W. Bush. There's like a mass
political firing of U S attorneys and Um yep, and

(14:16):
she and I think chief of staff at the time,
Joshua Bolton were both held in contempt of Congress and man,
if you look up, like you know, follow up reporting
on this stuff, it's like, you know, while it's going
on there like they could face fine jail time. Finally
I found some follow up. There's like nothing nothing happened,
Absolutely nothing happened. There's no legal ramifications, there were no

(14:38):
personal ramifications. There was nothing happened whatsoever to Harriet Myers
or Joshua Bolton or Eric Holder for just saying Congress,
the United States Congress, go sit on it, which is
essentially what you're saying when you ignore a subpoenis yea.
And because of this um you remember represented of darryl

(15:00):
Issa probably by name, he was uh he was involved
in trying to get Eric Holder, you know in the room,
and he was so mad he sponsored or intro to
bill to strengthen subpoena enforcement power, and uh it died
in the Senate. And before we, uh, I think we're
about to take a break. Before we do that, that

(15:20):
we should mention that currently White House Counsel Don McGann
um has refused to testify or refused to uh answer
his subpoena under direct order of Trump and UM right
now he's being sued by the House and he he
in particular provides a an unusual situation because at least

(15:44):
with Harriet Myers, or with Joshua Bolton or with Eric Holder,
when they were directed by the president at the time
not to um submit to that subpoena from Congress, they
were part of the president's staff. Don McGann was instructed
not to do not to cooperate with the subpoena after
he had already left civil service. He was no longer

(16:05):
part of the executive branch. So that definitely makes it unusual.
But if you're sitting there and your head is popping
and you're saying, how wait, how this is Congress, How
can the president just say just ignore that subpoena and
people get away with it. There's actually a lot of
case law that's been built over the centuries that kind
of establishes that. And I say, Chuck, we take a

(16:25):
break and then we'll dive into that after this. So, Chuck,

(16:52):
there's something about subpoenas, whether they're issued by Congress or
by a court of law. Um, when you get them
that a lot of people don't realize, uh, they're negotiable.
That's one really big reason to hire a lawyer is because, um,
they it may be overly broad, it may be kind
of a fishing expedition. It may put you at risk

(17:14):
to come forward and give this testimony or to hand
over these documents. And if you'll if you hire a
lawyer and say, hey, these are the things I'm worried about,
they can go and argue to the judge like, hey,
how about we just limit this subpoena to these documents
rather than everything on my client's hard drive. Or it's
really a big hardship for my client to make it here, um,

(17:34):
and the fifteen dollars a day that the court's paying
him for coming to testify isn't actually going to cover it,
So you know, can we can we negotiate a higher
fee or something like that. There's a lot of stuff
that can be done. But this is a technic that's
also used with congressional um subpoenas too, where say like
the executive branch will go, m I think that this

(17:55):
is a little overly broad, but maybe we could give
you this document. Will that satisfy you go Nope? Sometimes
they say yes, though, and part of that negotiation comes
out of the subpoena process. It's a response to it, um,
But none of it would have any effect whatsoever if
Congress didn't have any redress for um, for enforcing its subpoenas.

(18:17):
If somebody ignores it. Yeah, I mean, technically there are
fines in jail time sort of looming. But the more
I read about this stuff, especially when it comes to
Congressional oversight, the more it became clear that none of
that stuff really happens. It's all just dangled out there
as a means to negotiate, uh something with each other

(18:39):
over a pretty long period of time usually for sure. Yeah,
that Eric Holder thing was it was like four years
before he finally handed over the file um, and I
think Congress had already gone out of session, you said,
And it was basically just the whole thing had died down,
which I think is basically the the stalling tactic that
people ignore subpoenas for like that's why they're doing it. Yeah.

(19:01):
So technically, if you defy Congress, the committee that issued
that subpoena is going to vote to issue a citation,
a contempt citation, and then it's got to go to
the full chamber to vote on it. And if that
goes through and it passes, which it has before. Then
there are three three basic ways that you can prosecute
that charge, right, and each one is worth Yeah, pretty

(19:26):
much like this is. We would never give official legal advice,
first of all, because we're not lawyers or even trained
as lawyers. But from what I can tell, there's just
nothing happens to you if you ignore a congressional subpoena.
But most people respond to it because I feel like
the further down the UM food chain you are, the

(19:47):
more likely Congress is to do something in retaliation to you. Yeah, well,
let's let's go through the three at least fine, if
for no other reason than pure folly. So if they
if they vote in in that contempt citation goes through UH.
It is then under the control of the executive branch.

(20:08):
And you think, oh great the president or oh great
the president. It's really neither is the Justice Department, which
is part of the executive branch. It's up to them
to decide whether or not they're going to prosecute UH criminally,
and they're going to say no, They're gonna say then
we'll talk a lot about executive privilege coming up, but
they will usually cite that UM and decline to prosecute,

(20:29):
basically kind of saying, uh, you know what, we don't
get involved in this stuff, right. So so that is
specifically when it comes to subpoenaing something from the White
House or the executive branche. Now, if the if if
Congress is being ignored by say like the owner of
the Houston Astros, they can go to the d o
J and say, Hey, the Houston Astros baseball team owners

(20:52):
ignoring a subpoena, We want you to go after the guy,
and they'll go after the guy. It's when it's executive
privilege that's being cited that the d o J says,
you know how, it's our jurisdiction to decide whether to
prosecute this stuff. We're going to decline to do that
because it's our own people and we're just going to
consider this an internal executive branch. Matter Number two is uh,

(21:15):
the civil judgment, right, and that's when you need the
courts to basically enforce this. Go into court and saying
we need your help to enforce this civil suit against
somebody who stiff this right, Like, you know how you
can go arrest somebody and put him in jail, can
you do that on our behalf basically, but this is
super slow, like turtle like slow. Yeah. But I think

(21:38):
the idea is that, um, the thought that maybe somewhere
a couple of years down the line, there's going to
be a judgment against you where you're going to have
to pay a hundred thousand dollars to Congress or something
like that. There's been like twelve months in jail. Will
get you to to the table to negotiate, you know,
what documents they actually want or what testament money they want? Yes,

(22:01):
just leverage, right. So the third one is something that
isn't used anymore. Really. It's called inherent contempt power was
last used in nineteen thirty five. And this is you know,
this is sort of the jail thing. And while there
is no capital jail, they do have a holding cell. Yeah,
and like the sergeant at arms of the Senate or

(22:23):
the House, depending on who's issuing the subpoena and who
voted to UM told you in contempt, an armed officer
of the Congress will show up and say you're under arrest.
Congress says you're under arrest. You have to come with me.
Um or as has been kind of boom um bounced
around lately by UM Democrats in the House, replacing the

(22:45):
idea of jailing somebody, of arresting and jailing them with
a much much stiff refined than people have traditionally faced,
something more on the order of I think between twenty
five thousand and two d and fifty thousand dollars I
think a day actually for for ignoring this kind of stuff,
which we guess that would get people moving if they
actually go through with that, Yeah, I would think. So

(23:07):
get him in the pocketbook, yeah, I mean that hard.
That's and it pluses the government too. So it's like, hey,
you know these text credits you're getting, we're taking those
away in this text return that you were expecting. We're
gonna hang on to that. Like that's this is where
they could actually do something. Yeah, I think so. If
it's not congressional subpoena, if it's just like we're talking

(23:29):
about a regular court subpoena, it all depends on what
jurisdiction you're in and the presiding judge that's on that case. Yes,
but again, because you can be arrested as a matter
of routine course of of a court, UM, you really
should respond at least to a subpoena or else. You know,

(23:49):
the chances of something happening to you from a court
of law are much higher than Congress apparently. So, Um,
can we talk about case law? Yes, finally we got
all that boring stuff out of the way. Yeah, this
first one is kind of interesting. Um. And the way
the judiciary works in this country is just super fascinating
to me. The older I get, the more I read

(24:10):
about it. I'm not becoming illegal wonk by any means
illegal legal, But I get it, Like, you know, I
get it that people are super into this kind of thing.
I hadn't realized you've gotten into the judiciary. Yeah, I
think it's pretty fascinating. What got you into it? Just
like news, following the news or something or yeah, and

(24:31):
just sort of reading about a case like in this
case from eighteen hundred, and then you know precedent and
what that means and when it when it shouldn't matter
and should matter, like the one from eighteen hundred you're
talking about US v. Cooper. Yeah, Thomas Cooper, who was
a scientist and an attorney and a thorn in the

(24:51):
side of President John Adams in a big way. Yeah.
So in I think, yeah, the US past the Sedition Act,
which said that it's illegal to criticize the US government. Unfortunately,
when Thomas Jefferson came into office, he said, then we're
gonna kind of do away with that and keep it
away forever as much as we can. Um. But there

(25:15):
was a guy named Thomas Cooper, who, like you said,
was a thorn in the side of John Adams, and
he was arrested and prosecuted during a time when the
Sedition Act was still in effect, and he he lost
his case. But the way that it relates to subpoenas
and ignoring subpoenas, and specifically the executive branch ignoring subpoenas,
is that all the way back in eighteen hundred, when

(25:37):
the United States was just a couple of decades old,
this guy, Thomas Cooper, tried to subpoena John Adams to
come testify as part of this case. And the court said,
we don't really subpoena presidents. We decided, and that's that
a precedent for the rest of history. It basically said
presidents are accepted from the goings on in normal court stuff,

(26:02):
even when they're directly related to the case. They don't
have to come, right But that same case, he said,
but you can subpoena someone from Congress. That's a big
one too. That was a big one, Um Cooper. It
didn't work out for Cooper, like you said, he was convicted.
So none of that mattered except for establishing this president
President President, you got it in this case. You could

(26:23):
say it either way, I guess so. So that moves
us on to seven years later, um U s v.
Burr Um. This is John Marshall. Chief Justice John Marshall
headed this one up and basically this had to deal
with President Thomas Jefferson UM saying, Hey, they want you

(26:45):
to come to provide these documents. It was a doozy's teacum,
right do says dose two cease Dooce's teacum. And Jefferson
was like, hey, here are some of those documents that
you want, and they're like but where the rest of him?
He was like, you know, I'm not gonna give you those,
And I'm also not going to show up because you

(27:06):
know what, I gotta be presidenting. Yeah, I'm the executive
branch is too powerful and too or no, too important.
It's the only branch that's supposed to be open seven
three six, and I just can't get away, like I'm
my my work is too important to come be part
of this, and that gets I think it's less and

(27:27):
less um able to prove these days. I think, yeah,
for sure, like you can take off a half a day, right,
you've got a BlackBerry, you can definitely email, keep keep
tabs on work while you're gone. But yeah, so I
thought the same thing too that it does does not
hold water, but it does set a president for the president.
Like you were saying to UM in those two cases

(27:48):
basically say together again, the president doesn't have to come
be part of this, and um, executive privileges is I
guess where this came from from this particular the case
where it's saying like, now the president doesn't have to
have anything to do with this and the president's documents
or the president's business and can't be subpoenaed because we're

(28:10):
going to call this executive privilege, right. And there are
five basically, uh five types generally of executive privilege that
have been used thus far. One is presidential communications. Number
two is the deliberative process. Number three is attorney client communications.
Big one, uh fourth one is law enforcement investigations. And

(28:33):
the fifth one is anything uh that's sensitive in terms
of military or national security or diplomatic relations, that kind
of thing. And that's the one in particular that UM
has been upheld over the years is the idea that UM,
like the there are secrets that the White House has
that it just needs to be kept or else people

(28:54):
are going to lose their lives or else, diplomatic ties
are going to be upset, that kind of stuff, and
so those should be protected under executive privilege. But the
rest of the stuff has been subject to scrutiny over
the years, for sure, Yeah, because obviously an executive president
is going to try and draw that privilege as broadly
as possible. Oh yeah, for sure. And that's that's especially

(29:16):
been the case ever since Nixon onward, at least, where
there's this idea called UM the unitary Executive theory, which
is basically, like, you know, these are separate branches of government,
and the executive branches in charge of everything to do
with The executive branch has none it's none of Congress's business,
and the UM the executive is basically this extraordinarily powerful

(29:38):
single person, and that's been UM attempted to be invoked
improved time and time again in throwing off congressional oversight.
And that seems to be kind of what we're in
the midst of right now is a really big test
of this unitary executive theory in saying, like, no, not
only just the president, but the your president staff, and

(30:00):
in fact, the entire executive branch can ignore subpoenas from
Congress because Congress doesn't have any authority over the executive branch.
And that's kind of what we're witnessing right now. And
on the one hand, well, there really there's really just
one hand. The great value of having an executive like
almost a UM, well a unitary executive is that if

(30:21):
you're a vested interest or a very powerful group um,
you've only got one person to to change over to
your side, rather than five hundred of them, you know
what I mean. So it's it's very dangerous. It also
very much flies in the face of the three branches
of government and the checks and balances that each one
is supposed to have over the other, because part of

(30:43):
part of Congress's role is what's called congressional oversight that
says we're responsible for making sure you're not getting out
of control the president, the executive branch has veto power
saying Congress, you guys are nuts. This is this is
no law that should be passed. I'm going to say
no to this law. And then the judiciary has judicial review.

(31:04):
They get to say this law is unjust or this
UM executive agency's action is illegal. UM. And by doing this,
these three branches keep one another from getting too strong.
And the unitary executive theory flies in the face of
that and says, nope, the executive branch is more powerful
than all of them. The other two don't have checks
over them, and let's just see what happens from here.

(31:26):
That's right. Should we talk about Watergate? Yeah, so everyone,
we should do a full episode on Watergate. I think
I've said that before. I agree, but um, everyone knows
what happened there. President Nixon was involved in some hinky
activities and uh congressional committees. There was one special prosecutor

(31:47):
in particular name Archibald Cox, who said, wait a minute,
you've got these secret tapes you've been taping people in
the Oval office. Turn them over. Here's a subpoena. We
demand that you turn that over. Along with some other stuff,
and we want you to come here and testify as well.
And of course Nixon was like, I don't think that

(32:07):
stuff's gonna happen. Um, here you go. Here's some of
these tapes. Just ignore all the parts where it seems
like it was heavily edited and sounds real funny because
someone who was just in the room was no longer
in the room, and there are non sequiturs all over
the place. It's like that videotape of the guy who
got the high score in Donkey Kong. Right, yeah, you

(32:29):
know what I mean. Um, But executive privilege was what
what he claimed he was protected by. So this went
to the Supreme Court in nineteen seventy four with United
States v. Nixon, and Chief Justice Burger's opinion sided everything
from Justice Marshall's Marbury v. Madison to the one we

(32:49):
just talked about, United States v. Burr. And basically it's
they're they're walking a fine line there with the judiciary
because they're saying, listen, the president needs to be confidential
and protected when executing these duties, these constitutional duties, on
the one hand, but on the other hand, uh, due

(33:09):
process of laws is an is an important thing, and
that's what we're in charge of. So they kind of
ended up wanting to protect each of the branch's needs.
It seems like, yeah, and they I think they did
a very good job. And the fact that it was unanimous, UM,
I think Rehnquist was involved with some of the people involved,
so he um recused himself from voting, but it was

(33:31):
unanimous eight to zero vote saying no, you gotta hand
the tapes over because we don't think that you're just
trying to protect um, like intelligent secrets or military secrets
or diplomatic secrets. We think you're just basically using the
cover of executive privilege to cover your own behind and

(33:52):
that does not supersede due process in a court of law,
which is going on over here with you know, the
trials of these guys who broke into the water Gate. Um,
so you gotta hand over the tapes, and in doing so, you,
like you said, he cited UM another case Marbury v. Madison,
And that's a really really important case in here too,

(34:13):
which I think we should talk about starting now. Well,
I wanted to mention another quick thing, um, before you
dive into Marbury. Another case US v. A. T. And T.
This just basically laid out that the courts are only
going to get involved if everyone really tried in good
faith to work it out beforehand. So like basically said,
we're the last stop here. Don't just go run into

(34:35):
the Supreme Court or the courts in general to figure
this stuff out for you, right, Although I think that
the Constitution says that the Supreme Court are the ones
who are supposed to be running the show when it
comes to like a high enough official. A case regarding
a high enough official, Oh yeah, all all A T
and T. The case said was you have to really

(34:55):
try to work it out amongst yourself before it even
gets to us. I got you, Okay, yeah, gosh, I see,
I see what you're saying. Yep ye faith of course.
So right, So in Marbury versus Madison, that one basically said, hey,
there's this one component here. Yes, the the um we've
established that the legislative branchs um Congress can issue subpoenas,

(35:20):
and that the executive branch can exert executive privilege and
say no to some subpoenas under some cases. But um,
we're also going to say In US v. Nixon in
nineteen seventy four that the court can say no, you're
right to secrecy. Is is um overshadowed by a right
to do process in most cases. But the one that

(35:41):
was that really says at the center of this is
the judiciary and that the judiciary has a right to
decide cases where the legislative and executive branches are in dispute.
Is this Marbury versus Madison case from I think eighteen
o four, and it was, from what I understand, a
master stroke of um legal eagleness by by Justice John Marshall. Yeah.

(36:07):
So is along and short of that one that that
Secretary of St James Madison he was trying to withhold
the commission of William Marbury. Was that the case, Yeah,
because the outgoing Adams had packed the courts with friendly
judges and the commissions had not all been mailed out,
and Madison was withholding some and they basically said, listen, man,

(36:27):
you can't do this like it is your job. You
shall commission all the officers of the United States. It's
like right there in black and white, and you lose, right.
So that was one part of it. But what Marshall
figured out and what made this a master stroke of
legal legalness is that the Um there was a something

(36:48):
called a a writ of mandamus, which basically says you
have to do this, which had been granted to the
Supreme Court in Um the like an act. In sev. Nine,
Marshall said, so, yes, Um, Madison has to give this
over like this is just part of his duties, and
he's following a law that Congress made, so he's subject

(37:10):
to that law as a minister of the government. But
at the same time, the rid of mandimous power that's
the Supreme Court has been given were is unconstitutional. We're
not in a position to issue a rid of manimous
because under the Constitution we're not given that right. And
so in doing that, he established the Supreme Court as

(37:30):
the interpreter of what law is constitutional and what isn't.
And he did that by saying, this law that gives
us this amazing power is unconstitutional. So he did it
by taking power away from the Supreme Court. But in
doing so he gave the Supreme Court a tremendous um
a tremendous advantage over the centuries in interpreting what law

(37:51):
is constitutional and what isn't and placing itself as the
arbiter of disputes between the legislative branch and the executive branch,
which is I mean, that's a lot of what the
Supreme Court decides is constitutionality and it's it all comes
from the A ten oh four case landmark legal legal.
Should you take another break? Sure? Man? All right, we'll

(38:11):
take another break and talk a little bit about a
little bit more about Nixon and what some other presidents
have done when slapped with the saboena right after this,
so we all know what happened to Nixon. Um, but

(38:43):
the Justice did rule that, hey, dude, you gotta comply
with this Deucey's tectum here and you gotta turn over
these tapes. So Nixon uh turned over tapes. He did,
and it all worked out in the end. Everybody's like,
this is what you were protecting. This is fine, man,
state president for a couple more terms, and he did,
and the world was a better place for it, that's right. Uh.

(39:06):
Flash forward to uh to Bill Clinton. That was okay.
So he said, hey, listen, man, what goes on and
that was much better. What happens in the Oval office
stays in the oval office. Executive privilege. Um, they're like
even that stuff. And he said, well, you know it's

(39:27):
it's executive privilege falls under executive privilege. So he said,
I have executivemmunity, I have that privilege, and UM, neither
me nor my aids have to respond to these subpoenas.
And then he fell into line. Eventually new Gingrich got
him into line. Well, yeah, and and largely because of

(39:49):
US v. Nixon. UM, they said, you know what, you
can't stand by this broad executive privilege, stand behind this
wall that you've built. You're gonna have to comply. And
he did eventually, right, which is traditionally what happens, Like
the Congress issues subpoenas, executive branch ignores it, the the

(40:11):
Congress holds the executive branch in contempt, and the judiciary
comes in and almost always says, no, you're over exerting
your executive privilege to what they're saying, yeah, which you
know that gives me hope because in the past president
has been set that due process wins out over executive
privilege kind of across the board, it seems like. But

(40:33):
that that only holds um as long as two things
are upheld. One that UM, the Supreme Court is an
independent body, regardless of who appointed the judges. And then
two if the as long as the executive branch recognizes
the authority of the Supreme Court. This is where we

(40:56):
are starting. Like some people can see far enough along
this horizon that hey, this path we're heading down right now,
there's a point where we could reach where they could
be there could be a Supreme Court decision that says, yes,
executive branch, you have to hand over these aids for testimony.

(41:18):
They have to come testify about um, you know, Russian
interference in the two thousand and sixteen election, or this
call between the president and the Ukrainian president UM. And
the executive branch still says no. And that is the
point that everyone says, we have no idea what happens?
Then we have no idea. Do you go arrest these

(41:41):
you know, the secretary of the Treasury. Do you go
arrest these cabinet members? This has never been done before,
Like what remedy do you really have? And that's where
that's where we are with testing out this unitary executive theory.
How far can you kick the um the kind of
unwritten rules of the constitution, Well, there's lots of written

(42:03):
rules with Constitution, but also like the the unwritten rules
and procedures that kind of have have guided all of
this for so long. What happens when those things just
stop being recognized as valid. What do you do? Well?
I don't know, because in the in the past, through
our history, and this is on both sides of the

(42:23):
of the aisle, Democrats and Republicans have always, uh, not successfully,
but they've always tried to argue that courts should not
get in the subpoena battles and should not get involved
with uh this executive privilege claim, right, and in particular,
Trump's latest um, Trump's legal counsel's latest position, which I

(42:45):
think came out in September of this year, is it's
a doozy. It basically takes And here's here's something we
need to remember here, Like this is not brand new
with Donald Trump, right, Like if you if you can't
stand Donald Trump, this is this is his White House.
His administration is building on stuff that previous presidents have

(43:07):
built on both Democrats and Republicans alike. There has been
a real push basically since Nixon, to to instill as
much power into the presidency and the executive branch as possible,
and this is a an extreme version of that, but
it's still kind of following the same path. But what
they're what they're doing is more aggressive than what previous

(43:29):
administrations have done. And they're basically saying this, if you
subpoena us, uh, the executive branch, If you the Congress
subpoena one of our people, any of our people, for
any reason whatsoever, the President can say, no, do not
do not respond to that subpoena, do not go before Congress,
do not hand over those documents. I'm the president, I'm

(43:51):
ordering you to. Um. Congress can issue a rid of
contempt or find the person in contempt, but that's it.
That's where it ends be Because the president can say, well,
this is an inter branch dispute between the legislative branch
and the executive branch. And because the UM, the judiciary
can't be drafted or shouldn't be drafted in to solve

(44:13):
these disputes. UM, that's all it will remain is an
inter branch dispute. And in the Supreme Court really has
no purview in deciding these cases. And when you have that,
then that means that the executive branch has been removed
from the oversight of law, it becomes above the law.

(44:33):
The law no longer applies to it. And so whatever
the president wants to do, whatever the President directs his
or her agencies to do, is a de facto legal
just because the president and the executive branch are not
subject to the laws of the land, including rulings by
the highest court in the United States. That's what the
latest argument is setting us up for. Yeah, I mean,

(44:56):
this is what the Justice Department. There was a great article,
uh and the wh im Post by Harry Littman called
the Justice Department's outlandish and arrogant position on congressional subpoenas. Uh.
And this is from the article. It said, according to
the Justice Department, there is no constitutional or statutory basis
for a congressional committee to try to enforce his subpoenas
in the federal courts where the executive branch has decided

(45:19):
not to do so. Right. So basically, yeah, they said no,
and so they said no, and yeah, and all of
this arose from an opinion, um, regarding Trump's tax returns,
I believe. Yeah, that's sort of where the whole thing
got started. Yeah, where the Treasury Secretary Stephen Manuchian said no,
we're not doing that, and Congress said, well, we're holding
you in contempt. And then the Legal Office of Legal

(45:40):
Counsel from the White House issued this opinion, and I
mean it's a doozy, but it's also saying like, what
are you guys gonna do? What can you do? And
that's that's the that's the big question now well, and
it makes you wonder what would have happened if darryl
Isa's UH bill had gone through? That makes um subpoena's
super enforceable because you know, we've seen it on again

(46:03):
on both sides of the aisle, where one UH one
political party will get mad and and vote something in
that will come back to staying them later on on
the hind end. It is. But also you also can't
help but wonder, like will like is our republicans um

(46:24):
loyalty to Congress greater than the republicans loyalty to the
executive branch? Like there's it's like you know, in any restaurant,
there's tension between the white staff and the kitchen staff,
but they're all working at the same restaurant. They're all
trying to do the same thing. We just get high quality,
nourishing meals out to the patrons who are citizens like

(46:45):
you and me. Right, but there's still tension. You're not
you're not doing it fast enough for you. You burn
these fries or something like that. But we benefit from
that tension. We the patrons of this restaurant that we
call America. Well, what what happen? End of the day.
Every one just goes behind the restaurant and smokes a
joint by the dumpster. You know, maybe that would make
our our congress or o government work more efficiently, if

(47:07):
if the executive branch and the legislative branch and the
judicial branch all got together and burned a doobie again
there by the grease trap, right exactly. I don't even
remember what my analogy was was meant to. But we
it's fine, but we um like that we are witnessing
some historical stuff right now that that is not normal

(47:29):
at all. I mean, like from Watergate stuff, and that
I'm not even relating to impeachment proceedings. I'm just saying,
like this level of ignoring congressional subpoenas maybe unprecedented, and
if not, then the closest historical precedent we have is
the Watergate scandal. Yeah, but I think Congress is one

(47:49):
recourse to say that's fine, that's fine, molution, you just
ignore us. We're going over here as Congress and we
are altering this um. This our ability to a old
people to say no, actually we can find you two
dollars a day and we will do it. That that
could be the leverage that gets people to actually comply

(48:10):
with these subpoenas. But we'll find out, because if Congress
has to actually pass a law to do that, the
president has veto power over that well. And there are
also all sorts of other things have nothing to do
with this that Congress uses this leverage and or negotiation
tactics like hey, do you want us to push through
some of these uh appointees or should we just keep

(48:32):
stalling forever? Um. All kinds of that stuff is on
the table. But when you have a president that comes
out in January and says, uh, you know what, I
don't mind stall all you want. I like the term
acting um because that gives me more leeway, then all
of a sudden, that's not leverage anymore. You got anything else? No,
very curious to see what happens with this McGan case.

(48:53):
Probably nothing, and too will it be the crumbling of
our democracy? Who knows. We'll find out in a few years. Um,
if you want to know more about subpoenas, we'll just
go look it up. And if you get a subpoena yourself,
get a lawyer. Don't be stupid. Uh. And since I
said don't be stupid, friends, it's time for a listener mail.
I'm gonna this is about Obama's um healthcare. I got

(49:19):
a bunch of stuff about this. I didn't realize I
made a prediction. Okay, oh yeah, yeah, yeah, that's gonna
have been sitting in the in the coffers, guys, about
fifteen months ago, I started my journey through the stuff.
You should know. Archives have been on a steady campaign
about twelve to sixteen episodes a week. That's healthy. Uh,
why I'm writing though? Ten years ago, Chuck made a
bold prediction and the rumors, the myths and truths behind

(49:42):
Obama's healthcare plan episodes? Did we do like four of those? Um? Wed, yeah,
I think we did for you're right, but this one
was specifically about that episode. Uh, Chuck, I said, call
me in ten years if there are no more private
insurance companies, because that was one of the big knox
on it. It's like, this is gonna do away with

(50:02):
private insurance and I'll buy you a beer. Magic Um.
Chuck legitimately said, I'm on record, and he extended the
bet to anyone out there. Now that statement was more
of a gentleman's bet than a legal promise. However, Uh,
that is more binding in my opinion. Nonetheless, I would
like to congratulate you, Chuck. I was getting worried there

(50:23):
for a second on the expiration of that term and
that promissory statement. That could have been a pretty pricey
liability that things turned out differently. A million beers, Chuck,
every single one of our listeners would have written in
and asked for it. That is from Jack Simmons. Nice going, Jack,
and welcome to the club. We're glad you've found us,
and even more so that you like us, so we'll

(50:45):
do our best to keep it up for you and
everybody else that emails a couple of months, although he's
probably forgotten about it. Sorry, that's right, he's moved on
to Pod Save America. That's right. Uh, Well, if you
want to get in touch with us like Jack did.
You can go on to stuff I few Should Know
dot com check out our social links There. You can
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(51:08):
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