September 13, 2025 • 51 mins
Subpoenas are all the rage. But what do they even mean if someone can just ignore it? Learn this and a lot more in this classic episode.
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Speaker 1 (00:01):
How to everybody.
Speaker 2 (00:02):
I'm just staring at this subpoena on my desk that
I'm going to ignore because I don't care about the
rule of law.
Speaker 1 (00:08):
This, Chuck.
Speaker 2 (00:09):
It's Saturday, and from October twenty nineteen, we are replaying
this episode about subpoenas. It's called What's the Deal with Subpoenas? Or,
as Jerry Seinfeld might say, h what's the deal with subpoenas?
That's my best Jerry Seinfeld. I hope you enjoyed it.
Speaker 1 (00:29):
Welcome to Stuff you should know, a production of iHeartRadio.
Speaker 3 (00:39):
Hey, welcome to the podcast.
Speaker 4 (00:40):
I'm Josh Clark, and there's Charles w Chuck Bryant, and
there's Jerry Jerome Rowland over there, the Legal Eagles of podcasting.
Speaker 1 (00:49):
Ooh, can I be Daryl Hannah?
Speaker 3 (00:51):
Yes, I call Barbara Hershey.
Speaker 1 (00:54):
I don't think so.
Speaker 2 (00:55):
Who was it, oh, Legal Eagles? I know Deborah Winger? Yes,
was Daryl Hannah even in that now.
Speaker 3 (01:01):
Yeah, she was the client of Deborah Winger.
Speaker 1 (01:03):
Okay, and you're not Redford?
Speaker 4 (01:06):
No, they always have to be Redford. Everybody's always like that.
Guy's a regular Robert Redford. He'll play him in this scenario.
Speaker 1 (01:13):
Right, that's that's the street chatter.
Speaker 3 (01:16):
Yeah.
Speaker 4 (01:16):
Can I still be Barbara Hershey even though she wasn't
in the movie. Sure, I think I'm thinking of beaches.
Speaker 1 (01:22):
Oh well, that means I get to be Bette Midler, right.
Speaker 4 (01:26):
I wonder how many podsave America listeners we just lost
to it just casually decided to give us a chance.
Speaker 1 (01:31):
I want to learn about subpoenas, all right. Before we
get going, though, can we.
Speaker 2 (01:36):
Quickly thank the cities of Orlando and Greater Orlando and
Florida and New Orleans and Greater Louisiana. Yes, for two
fun live shows.
Speaker 3 (01:46):
Yeah, those were a lot of fun. Let's see.
Speaker 4 (01:49):
We did Orlando on October ninth, I think, and then
the tenth for New Orleans. Regardless, it was night back
to back, two fun filled nights, and they were just
both the main shows.
Speaker 1 (02:00):
Yeah.
Speaker 2 (02:01):
And when this comes out, I think New York will
have been over. So thank you New York.
Speaker 4 (02:05):
Oh yeah, yeah, we we presume it's going to have
been a great time that three night run at the Bellhouse.
Speaker 1 (02:10):
They're always great there.
Speaker 3 (02:13):
And that's it too.
Speaker 4 (02:14):
That's it for us for the for the year, Chuck,
So I mean thank you to everybody who came out
to see our shows this year.
Speaker 2 (02:20):
Yeah, can we go ahead and tease our our January
schedule for should we not?
Speaker 3 (02:26):
I think we can sure?
Speaker 1 (02:28):
All right, well, well.
Speaker 2 (02:28):
We're hoping to be back at sketch Fest again. And
then what did we settle on?
Speaker 4 (02:34):
We I don't know settling is the right way to
put it up. We decided between the Seattle. We're doing Seattle,
oh we are, yeah, and normally for a January swing
we do Portland Seattle sketch Fest. Right, Well, we've got
the iHeart Radio Awards in there in Los Angeles and
we just you know, kind of have to go to that. No, sorry,
(02:56):
the iHeart Podcast Awards. They don't care about us at
all at the radio now.
Speaker 1 (03:00):
We can't even get in that building.
Speaker 3 (03:01):
Right exactly.
Speaker 4 (03:02):
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 and put it
with another town in the spring.
Speaker 3 (03:15):
So don't worry Portland, we will be out there.
Speaker 1 (03:17):
Maybe maybe the Cove.
Speaker 3 (03:19):
That's what that's the talk, that's the chatter around town.
Speaker 2 (03:21):
But we have no dates confirmed yet. But this just
look for us again in the Pacific Northwest at the
beginning of the year.
Speaker 3 (03:28):
That's a much better way to put it.
Speaker 4 (03:29):
Yeah, So, do you want to talk about subpoenas You
got any other housekeeping to do?
Speaker 1 (03:34):
I don't think so. Subpoenas weird spelling.
Speaker 4 (03:39):
Well, yeah, so I looked up the word 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.
Speaker 1 (03:53):
Of blah blah blah.
Speaker 5 (03:56):
Yeah.
Speaker 4 (03:56):
I was thinking all I could think about is really
dirty but dark stuff.
Speaker 3 (04:00):
Oh yeah, yeah, so I just.
Speaker 4 (04:02):
Let you fill in the blah blah blah. But anyway,
under penalty of whatever, you need to do one of
two things. 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.
Speaker 2 (04:22):
Yeah, or you think of the US government because a
lot of this is going to be about congressional subpoenas
because that's really the juiciest subpoena.
Speaker 4 (04:29):
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 age, this generation.
Speaker 3 (04:40):
I mean, it's been going on for a while.
Speaker 4 (04:41):
But normally when people think subpoenas, until like basically twenty seventeen,
sixteen eighteen, not necessarily in that order, 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.
Speaker 1 (04:58):
That's right.
Speaker 2 (04:59):
But you mentioned the two types. Do you want to
break out your Latin or shall.
Speaker 3 (05:04):
I you take the first, I'll take the second.
Speaker 1 (05:07):
Oh okay, the first one's easy.
Speaker 2 (05:10):
The first one is subpoena add testify candem.
Speaker 4 (05:15):
Wow did you see that? You just made a mouse
appear and run out of the room. The next one
so so sorry. The first one, the one you just said.
Speaker 1 (05:24):
That means you got to come to court.
Speaker 3 (05:26):
You just nailed it.
Speaker 4 (05:27):
Yeah, it says that you have to come and testify,
and you might not be a party to the lawsuit
like this is. It can be a civil case or
a criminal case, that's a big thing to point out,
but basically it's saying, you have some information. You witnessed
an act, you overheard a conversation, the defendant confessed something
(05:49):
to you. We need you to come to court and
tell your story. And that's what that first subpoena is
saying to do.
Speaker 2 (05:55):
Yeah, and not necessarily court court, but it can be
any kind of legal authority.
Speaker 4 (05:58):
Yeah, it could be a deposition, it could be an arbitration,
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 don't listen. That's that's used to kind
of enforce subpoenas. So the second one is the subpoena
(06:20):
douces teakum, Hey nice, thank you, and that is basically saying, hey,
you have a document, you have a hair sample, you
have some sort of bodily fluids we want to get
our hands on.
Speaker 3 (06:33):
You have a computer.
Speaker 4 (06:36):
Or a computer hard drive, 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
(06:57):
have this 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
for one side or the other saying, Hey, I heard
that this person has this 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.
Speaker 2 (07:16):
And then the judge says, speak to my clerk, and
then the clerk of the usually the clerk of the
judge who's.
Speaker 3 (07:22):
Handling that case, they say, talk to the hand.
Speaker 2 (07:25):
Yeah, and they'll generally issue it on on like official
court letterhead and official documentation. It's not like the judge
is washing their hands of it necessarily.
Speaker 4 (07:36):
No, No, I'm sure like if they do something egregiously wrong,
the judge is going to hear about it and punish them.
Speaker 1 (07:42):
That's right. And then it served usually in person kind
of you know, handed to you like on the TV
shows and in the movies.
Speaker 3 (07:50):
Yeah, either by a sheriff's deputy or a process server.
Speaker 1 (07:54):
Yeah, but not always.
Speaker 2 (07:55):
It depends on if it's congressional or if it's you know,
civil regular Joshmo stuff.
Speaker 3 (08:04):
Yeah. Well, yeah for sure.
Speaker 4 (08:05):
But I think even if it is regular civil joshmost stuff,
you can still go higher the sheriff's department to serve papers.
Speaker 3 (08:13):
To serve a subpoena, oh for sure.
Speaker 1 (08:14):
I think the congressional ones are not served by a shriff.
Speaker 3 (08:17):
Oh, I see, who do they use?
Speaker 1 (08:19):
I think it depends it could.
Speaker 2 (08:21):
I mean the way congressional subpoena's work is all sort
of dependent on the individual committee that's seeking that subpoena.
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 grant or request a subpoena.
Speaker 4 (08:43):
Right, I've read some of them know that it's a
real downer to get a subpoena. Say, some congressional committees
use that mascot from the nineteen eighty four Olympics, the Eagle,
to come issue your.
Speaker 3 (08:54):
Papers to you.
Speaker 1 (08:56):
I don't remember that one.
Speaker 3 (08:57):
You don't remember that eagle.
Speaker 4 (08:58):
Now it's like a cartoon eagle from nineteen eighty four.
Speaker 1 (09:02):
Yeah, I mean all I can.
Speaker 2 (09:03):
I can't get past the Atlanta Olympics mascot. That's why
I can't get back to nineteen eighty four?
Speaker 3 (09:08):
Was it? What's it? Or who's it?
Speaker 1 (09:09):
Oh? I don't even know.
Speaker 3 (09:11):
It was one of those too. What was that thing?
Speaker 1 (09:14):
I don't know.
Speaker 3 (09:15):
It was a last last minute thing.
Speaker 1 (09:17):
What was the name it was?
Speaker 3 (09:18):
What's it? Or who's it? Was it?
Speaker 1 (09:20):
Yes?
Speaker 2 (09:22):
Yes, man, it was bad. I was out of town.
I fled.
Speaker 3 (09:25):
You didn't miss anything.
Speaker 2 (09:26):
But I do remember watching the opening whatever they're called,
the opening ceremonies, Opening ceremonies, right, and seeing the stainless
steel pickup trucks driving around and just thinking, oh boy.
Speaker 3 (09:40):
Yeah.
Speaker 4 (09:41):
And for those of you who are like, they've talked
about this before, we have. Yeah, we have, and we're
still that upset about it.
Speaker 1 (09:46):
We'll talk about it again in five more years.
Speaker 3 (09:48):
We haven't forgotten.
Speaker 1 (09:49):
Yeah, stainless steel pickup trucks. They haunt me. I have
dreams about those trucks.
Speaker 4 (09:53):
Yeah, they're just circling you, playing striper at the loudest
possible volume. Oh man, Okay, 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
(10:13):
they're served the paper, and that is, can I ignore
this thing?
Speaker 3 (10:18):
Do I have to do this right?
Speaker 4 (10:20):
What happens to me if I just pretend like I
never got this? And that's really tough to do. I
was reading about process servers and the 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. There's
like certain rules and regulations to serving somebody with a subpoena,
(10:42):
so 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 a 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.
Speaker 1 (11:02):
They'll stick their hands in their ears and go.
Speaker 3 (11:03):
La la la la la la.
Speaker 4 (11:05):
Right, exactly, they'll do a lot of stuff to keep
from being served, but that's actually it will.
Speaker 3 (11:10):
Just delay being served.
Speaker 4 (11:12):
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, it made it to their house, that's enough.
Or if you can say I took the numbers off
my mailbox, what are you going to do now, chump.
They can actually post an ad in the local legal
(11:33):
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.
Speaker 2 (11:47):
Yeah, I mean it says here in this article, which
most of this is from the House Stuff Works article
about saboenas, but it says, you know, it's a lot
easier if you just go right or produce the documents.
But we'll cover here in a lot of this congressional
oversight stuff that is not the route that people take
generally in government.
Speaker 4 (12:07):
Yeah, and I thought it was kind of an oversight
to not say like, but also if somebody serves you
with a 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 should I do with this?
Speaker 3 (12:22):
Is this?
Speaker 4 (12:22):
You know, you know, there's a lot of questions that
you should have answered before you just act on a subpoena.
Speaker 2 (12:29):
Yeah, and you know, when it comes to ignoring subpoenas,
and that's what a lot.
Speaker 1 (12:33):
Of this will be about.
Speaker 2 (12:34):
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.
Speaker 1 (12:47):
But there have been some very.
Speaker 2 (12:48):
Famous cases in the past, you know, fifteen years or
so where subpoenas have been ignored, starting well, not starting
with but we can start with Eric Holder, Attorney General
for Barack Obama.
Speaker 3 (13:03):
Yeah, that was a big one.
Speaker 2 (13:04):
That was part of the Operation the Fast and Furious
scandal scandal.
Speaker 4 (13:10):
Yeah, it was definitely a scandal. From what I remember,
it involved like secret gun sales or else. Some guns
were 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.
Speaker 2 (13:27):
Attorney General Eric Holder refused, under direction of Obama, to
answer that subpoena, and he became the first sitting cabinet
member to be voted in contempt of Congress.
Speaker 3 (13:39):
Oh was that right?
Speaker 1 (13:41):
Yeah?
Speaker 2 (13:41):
And you know you're like, oh, what happens in well,
three and a half years later a judge ruled that
he did not have the right to defy Congress, and
by that time there was a new Congress, and it
was a mood point.
Speaker 4 (13:56):
That's a really big big thing to remember. Is like
an eempt of Congress vote where you are supposedly in
trouble for ignoring a subpoena, only lasts as long as
that session of Congress.
Speaker 1 (14:08):
Unless the next session of Congress wants to pick it up.
Speaker 4 (14:11):
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 enough that if you if you make it through
that Congress, you know going into recess, you 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
(14:32):
got away with it. Harriet Myers, who was a White
House counsel to George W.
Speaker 3 (14:37):
Bush.
Speaker 4 (14:37):
There was like a mass political firing of US attorneys.
Speaker 1 (14:42):
Yeah, and two thousand and eight yep.
Speaker 4 (14:44):
And 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,
they're like they could face fines, jail time. Finally I
found some follow up as like nothing nothing happened, Absolutely
nothing happened. There was no legal ramifications, there were no
(15:06):
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, yeah, which
is essentially what you're saying when you ignore a subpoenas yeah.
Speaker 2 (15:25):
And because of this, you remember Representative darryl Isa probably
by name. 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 it died in the Senate, and before we I
(15:47):
think we're about to take a break.
Speaker 1 (15:48):
Before we do that, though, we should.
Speaker 2 (15:49):
Mention that currently White House Counsel Don McGann has refused
to testify or refused to answer his subpoena under direct
order of Trump, and right now he's being sued by
the House right of August.
Speaker 4 (16:06):
And he in particular provides an unusual situation because at
least with Harriet Myers, or with Joshua Bolton, or with
Eric Holder, when they were directed by the President at
the time not to submit to that subpoena from Congress,
they were part of the president's staff. Don McGann was
instructed not to not to cooperate with the subpoena after
(16:30):
he had already left civil service. He was no longer
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 a 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
(16:51):
of establishes that. And I say, Chuck, we take a break,
and then we'll dive into that after this case.
Speaker 5 (16:57):
Law Josh.
Speaker 4 (17:19):
So Chuck, there's something about subpoenas, whether they're issued by
Congress or by a court of law, when you get
them that a lot of people don't realize they're negotiable. Yeah,
that's one really big reason to hire a lawyer is
because they it may be overly broad, it may be
kind of a phishing expedition. It may put you at
(17:41):
risk to come forward and give this testimony or to
hand over these documents. And 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,
(18:02):
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 negotiate a higher fee or something
like that. There's a lot of stuff that can be done,
but this is a tactic that's also used with congressional subpoenas. Too,
where say, like the executive branch will go, I think
(18:23):
that this is a little overly broad, but maybe we
could give you this document.
Speaker 3 (18:26):
Will that satisfy you?
Speaker 1 (18:27):
And then I go nope.
Speaker 4 (18:29):
Sometimes I say yes, though, and part of that negotiation
comes out of this subpoena process. It's a response to it.
But none of it would have any effect whatsoever if
Congress didn't have any redress for enforcing its subpoenas. If
somebody ignores it.
Speaker 2 (18:47):
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
something with each other over a pretty long period of
(19:09):
time usually for sure.
Speaker 4 (19:11):
Yeah, that Eric Holder thing was it was like four
years before he finally handed over the file, and I
think Congress had already gone out a session, you said,
And it was basically just the whole thing had died down,
which I think is basically the stalling tactic that people
ignore subpoenas for like that's why they're doing it.
Speaker 1 (19:29):
Yeah.
Speaker 2 (19:29):
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 basic ways that you can prosecute that.
Speaker 4 (19:48):
Charge, right, and each one is worthless. Yeah, pretty much
like this is. We would never give official legal advice.
First of all, 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
(20:12):
down the food chain you are, the more likely Congress
is to do something in retaliation to you.
Speaker 2 (20:20):
Yeah, well, let's go through the three at least fine,
if for no other reason than pure folly. So if
they vote and that contempt citation goes through, it is
then under the control of the executive branch. And you think,
oh great the president or oh great the president, it's
(20:40):
really neither. It 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 criminally, and they're
going to say no. They're going to say and we'll
talk a lot about executive privilege coming up, but they'll
usually cite that and decline to prosecute, basically kind of saying,
you know what, we don't get involved in this stuff.
Speaker 3 (21:02):
Right.
Speaker 4 (21:02):
So that is specifically when it comes to subpoenaing something
from the White House correct or the executive bridge. Now,
if Congress is being ignored by, say like the owner
of the Houston Astros, they can go to the DOJ
and say, hey, the Houston Astros baseball team owner is
ignoring a subpoena. We want you to go after the guy,
(21:24):
and they'll go after the guy. It's when it's executive
privilege that's being cited that the DOJ 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.
Speaker 2 (21:39):
Matter Number two is 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's stiffed us.
Speaker 4 (21:55):
Right, Like, you know how you can go arrest somebody
and put him in jail? Can you do that on
our behalf? Basically?
Speaker 1 (22:00):
But this is super slow, like turtle like slow.
Speaker 3 (22:05):
Yeah.
Speaker 4 (22:05):
But I think the idea is that 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 one hundred thousand dollars to Congress
or something like that, or spend like twelve months in
jail will get you to the table to negotiate you know,
(22:25):
what documents they actually want or what testimony they want.
Speaker 2 (22:28):
Yeah, it's just leverage, right. So the third one is
something that isn't used anymore.
Speaker 1 (22:34):
Really.
Speaker 2 (22:34):
It's called inherent contempt power. It was last yused 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.
Speaker 4 (22:47):
Yeah, and like the sergeant at arms of the Senate
or the House, depending on who's issuing the subpoena and
who voted to 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, or,
as has been kind of boo bounced around lately by
(23:11):
Democrats in the House, replacing the idea of jailing somebody,
of arresting and jailing them with a much much stiffer
fine than people have traditionally faced, something more on the
order of I think between twenty five and two hundred
and fifty thousand dollars I think a day actually for
ignoring this kind of stuff, which we guess that would
get people moving if they actually go through.
Speaker 2 (23:33):
With that, yeah, I would think. So hit them in
the pocketbook, yeah, I.
Speaker 4 (23:38):
Mean that hard's and it pluses the government too. So
it's like, hey, you know these tax credits you're getting,
were taking those away and this tax return that you
were expecting, we're going to hang on to that Like
that's this is where they could actually do something.
Speaker 3 (23:51):
Yeah, I think so.
Speaker 2 (23:53):
If it's not a congressional subpoena, if it's just like
we're talking about a regular court subpoena, it all depends
and what jurisdiction you're in, and the presiding Chudge that's
on that case.
Speaker 4 (24:05):
Yes, but again, because you can be arrested as a
matter of routine course of a court, you really should
respond at least to a subpoena or else. You know,
the chances of something happening to you from a court
of law are much higher than Congress apparently.
Speaker 1 (24:22):
Sure, so can we talk about case law?
Speaker 4 (24:26):
Yes, finally we got all that boring stuff out of
the way.
Speaker 2 (24:30):
Yeah, this first one is kind of interesting. And the
way the judiciary works in this country is just super
fascinating to me. The older I get, the more I
read about it. I'm not becoming a legal wonk by.
Speaker 3 (24:40):
Any means illegal legal, but I get.
Speaker 1 (24:44):
It, Like, you know, I get it that people are
super into this kind of thing.
Speaker 3 (24:48):
I hadn't realized you've gotten into the judiciary.
Speaker 1 (24:51):
Yeah, I think it's pretty fascinating.
Speaker 4 (24:53):
What got you into it? Just like news following the
news or something or uh.
Speaker 2 (24:57):
Yeah, And it's just sort of reading about a case
like in this case from eighteen hundred, and then you
know precedent and what that means, right, and when it
shouldn't matter and should matter.
Speaker 3 (25:10):
Like the one from eighteen hundred you're talking about is
US v. Cooper.
Speaker 2 (25:14):
Yeah, Thomas Cooper, who was a scientist and an attorney
and a thorn in the side of President John Adams
right in a big way.
Speaker 3 (25:23):
Yeah.
Speaker 4 (25:24):
So, in I think seventeen ninety eight, Yeah, the US
passed the Sedition Act, which said that it's illegal to
criticize the US government.
Speaker 1 (25:33):
Yeah.
Speaker 4 (25:34):
Unfortunately, when Thomas Jefferson came into office, he said, we're
gonna kind of do away with that and keep it
away forever as much as we can. But there 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 lost his case.
(25:56):
But the way that it relates to subpoenas an ignoring
subpoena is specifically the executive branch ignoring subpoenas. Is that
all the way back in eighteen hundred, when 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
(26:18):
don't really subpoena presidents we've decided. Yeah, and that's not
a precedent for the rest of history. It basically said
presidents are accepted from the goings on in normal court stuff,
even when they're directly related to the case.
Speaker 3 (26:33):
They don't have to.
Speaker 2 (26:34):
Come right, But that same case is said, but you
can subpoena it's someone from Congress.
Speaker 3 (26:39):
That's a big one too.
Speaker 2 (26:40):
That was a big one 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.
Speaker 3 (26:49):
You got it in this case. You could say it
either way.
Speaker 1 (26:53):
I guess. So. So that moves us on to seven
years later US v. Burr.
Speaker 2 (27:01):
This is John Marshall. Chief Justice John Marshall headed this
one up and basically this had to deal with President
Thomas Jefferson saying, hey, they want you to come to
provide these documents.
Speaker 1 (27:15):
It was a Doozy's teacom, right, du says, c's doc's
Ducy's teacum.
Speaker 2 (27:23):
And Jefferson was like, hey, here are some of those
documents that you want, and they're like, but where the
rest of them? He was like, you know, I'm not
going to give you those and I'm also not going
to show up because you know what, I got to
be presidenting.
Speaker 4 (27:37):
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 twenty four seven, three sixty five. Yeah,
and I just can't get away, like I'm my work
is too important to come be part of this, and
that gets think.
Speaker 1 (27:54):
Gets less and less able to prove these days, I think, yeah,
for sure.
Speaker 4 (28:00):
Like you could take off, I have a day, right,
you got a BlackBerry, you can definitely email, keep tabs
on work while you're gone.
Speaker 3 (28:07):
But yeah, so I thought the same thing too.
Speaker 4 (28:09):
That does not hold water, but it does set a
president for the president, like you were saying too in
those two cases basically say together again, the president doesn't
have to come be part of this, and executive privilege
is I guess where this came from from this particular
case where it's saying like, no, the president doesn't have
(28:31):
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 going to call this executive privilege.
Speaker 2 (28:40):
Right, And there are five basically 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. Fourth one is law
enforcement investigations. And the fifth one is anything that's sensitive
(29:05):
in terms of military or national security or diplomatic relations,
that kind of thing.
Speaker 4 (29:10):
And that's the one in particular that has been upheld
over the years.
Speaker 3 (29:14):
It's the idea that.
Speaker 4 (29:16):
Like, there are secrets that the White House has that
it just need to be kept or else people 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.
Speaker 1 (29:36):
Yeah, because obviously an executive a president is going to
try and draw that privilege as broadly as possible.
Speaker 3 (29:42):
Oh yeah, for sure.
Speaker 4 (29:43):
And that's especially been the case ever since Nixon onward,
at least, where there's this idea called the unitary executive theory,
which is basically, like, you know, these are separate branches
of government, and the executive branch is in charge of
everything to do with the executive branch has, it's none
of Congress's business. And the executive is basically this extraordinarily
(30:06):
powerful single person, and that's been attempted to be invoked
and prove 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 entire president staff and
(30:29):
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, really there's really just one hand.
The great value of having an executive like almost a
well a unitary executive is that if you're a vested
(30:51):
interest or a very powerful group, you've only got one
person to change over to your side, rather than five hundred.
Speaker 3 (30:59):
Of them, you know what I mean. Yeah, So it's
very dangerous.
Speaker 4 (31:02):
It also very much flies in the face of the
three branches of government and the checks and balances that
each one's supposed to have over the other. Yes, because
part of Congress's role is what's called congressional oversight.
Speaker 1 (31:15):
Yep.
Speaker 4 (31:15):
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 no
law that should be passed.
Speaker 3 (31:27):
I'm going to say no to this law. And then
the judiciary has judicial review.
Speaker 4 (31:32):
They get to say this law is unjust or this
executive agency's action is illegal. 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, no, the executive branch is more powerful than.
Speaker 3 (31:50):
All of them. The other two don't have checks over them,
and let's just see what happens from here.
Speaker 1 (31:55):
That's right. Should we talk about Watergate?
Speaker 3 (31:57):
Yeah?
Speaker 2 (31:58):
So everyone, we should do a full episode on Watergate.
I think I've said that before. I agree, but everyone
knows what happened there. President Nixon was involved in some
hinky activities and congressional committees. There was one special prosecutor
in particular named Archibald Cox, who said, wait a minute,
(32:19):
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 Nan said, you demand, and we want you to
come here and testify as well. And of course Nixon
was like, I don't think that stuff's going to happen.
Here you go, here are some of these tapes. Just
(32:41):
ignore all the parts where it seems like it was
heavily edited and sounds real funny because someone who was
just in the room is no longer in the room,
and there are non sequiturs all over the place.
Speaker 4 (32:52):
It's like the videotape of the guy who got the
high score in Donkey Kong.
Speaker 3 (32:56):
Right, yeah, you know what I mean.
Speaker 2 (33:00):
But executive privilege was 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 cited everything from Justice Marshall's Marbury v. Madison to
the one we just talked about, United States v. BurrH
And basically, they're walking a fine line there with the
(33:25):
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, due
process of law 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.
Speaker 4 (33:46):
It seems like, yeah, and I think they did a
very good job. And the fact that it was unanimous.
I think Rehnquist was involved with some of the people involved,
so he recused himself from voting, but it was unanimous
eight to zero vote saying no, you got to hand
the tapes over because we don't think that you're just
(34:07):
trying to protect 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 exactly, and
that does not supersede due process in a court of law,
which is going on over here with the trials of
these guys who broke into the Watergate. So you got
(34:31):
to hand over the tapes, and in doing so, like
you said, he cited another case Marbury v. Madison, And
that's a really really important case in here too, which
I think we should talk about starting now.
Speaker 2 (34:45):
Well, I wanted to mention another quick thing before you
dive into Marbury another case usv.
Speaker 1 (34:51):
At and T.
Speaker 2 (34:51):
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.
Speaker 1 (35:00):
Basically said, we're the last stop here.
Speaker 2 (35:02):
Don't just go run into the Supreme Court or the
courts in general to figure this stuff out for you.
Speaker 4 (35:08):
Right, Although I think 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.
Speaker 1 (35:20):
Yeah, all At and T.
Speaker 2 (35:22):
The case said was you have to really try to
work it out amongst yourself before it even gets to us.
Speaker 3 (35:26):
Oh gotcha. Okay, yeah, I gotcha. I see, I see
what you're saying. Yeah yeah.
Speaker 1 (35:30):
So good faith, of course, is broadly defined too.
Speaker 4 (35:32):
So in Marborie versus Madison, that one basically said, hey,
there's this one component here.
Speaker 3 (35:40):
Yes, the.
Speaker 4 (35:42):
We've established that the legislative branch Congress can issue subpoenas
and that the executive branch can exert executive privilege and
say no toe some subpoenas under some cases. But we're
also going to say In US v. Nixon in nineteen
seventy four, that the court can say, no, your right
to secrecy is overshadowed by a right to do process
(36:06):
in most cases.
Speaker 3 (36:08):
But the one that really says at the center of.
Speaker 4 (36:11):
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 oh four, and it was, from what
I understand, a masterstroke of legal eagleness by Justice John Marshall.
Speaker 1 (36:35):
Yeah.
Speaker 2 (36:35):
So is the long and short of that one that
Secretary of Saint James Madison he was trying to withhold
the commission of William Marbury.
Speaker 1 (36:44):
Was that the case?
Speaker 4 (36:45):
Yeah, because the outgoing Adams had packed the courts with
friendly judges, the commissions had not all been mailed out,
and Madison was withholding some.
Speaker 2 (36:54):
And they basically said, listen, man, 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.
Speaker 3 (37:06):
So that was one part of it.
Speaker 4 (37:08):
But what Marshall figured out and what made this a
master stroke of legal legalness, is that the there was
a something called a writ of mandamus, which basically says
you have to do this, which had been granted to
the Supreme Court in the like an Act in seventeen
eighty nine. Marshall said, so, yes, Madison has to give
(37:32):
this over like, this is just part of his duties,
and he's following a law that Congress made, so he's
subject to that law as a minister of the government.
But at the same time, the rit of mandamus power
that's a Supreme Court has been given is unconstitutional. We're
not in a position to issue a rid of mandamus
because under the Constitution we're not given that right. And
(37:54):
so in doing that, he established the Supreme Court as
the interpreter of what law is constitutional and what isn't right.
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 a
(38:15):
tremendous advantage over the centuries in interpreting what law is
constitutional and what isn't and placing itself as the arbiter
of disputes between the legislative branch and the executive branch.
Speaker 2 (38:26):
Yeah, which is I mean, that's a lot of what
the Supreme Court decides is constitutionality.
Speaker 3 (38:31):
And it all comes from that eighteen and oh four case.
Speaker 1 (38:34):
Landmark Legal Legal. Should we take another break?
Speaker 3 (38:38):
Sure?
Speaker 2 (38:39):
Man, all right, we'll 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 a
sabena right after that.
Speaker 4 (38:48):
Jaw.
Speaker 2 (38:53):
So we all know what happened to Nixon, what the
Justice did rule that, Hey, dude, you got to comply
(39:15):
with this Deucey's tectim here and you got to turn
over these tapes.
Speaker 1 (39:20):
So Nixon, uh turned over tapes.
Speaker 4 (39:24):
He did, and it all worked out in the end.
Everybody's like, this is what you were protecting. This is fine, man,
stay president for a couple more terms. And he did,
and the world was a better place.
Speaker 1 (39:33):
For it, that's right. Flash forward to uh to Bill Clinton.
Speaker 3 (39:39):
That was okay.
Speaker 1 (39:40):
So he said, hey, listen, man.
Speaker 3 (39:42):
What goes on and that's much better.
Speaker 2 (39:44):
What happens in the Oval office stays in the oval office.
Executive privilege. They're like even that stuff. And he said, well,
you know, it's it's his executive privilege. Harika Panke falls
under executive privileg So he said, I have executive unity,
I have that privilege, and neither me nor my aides
(40:07):
have to respond to these subpoenas. And then he fell
into line eventually.
Speaker 3 (40:12):
Due Gingrich got him into line.
Speaker 1 (40:15):
Well, yeah, and largely because of US v. Nixon.
Speaker 2 (40:19):
They said, you know what, you can't stand by this
broad executive privilege, stand behind this wall that you've built.
Speaker 1 (40:28):
You're going to have to comply. And he did eventually right.
Speaker 4 (40:32):
Which is traditionally what happens, like the Congress issues subpoenas,
is an executive branch ignores it. The Congress holds the
executive branch and contempt, and the judiciary comes in and
almost always says, no, you're over exerting your executive privilege
to what they're saying.
Speaker 2 (40:50):
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 that that.
Speaker 4 (41:02):
Only holds as long as two things are upheld. One
that 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.
Speaker 3 (41:23):
This is where we are starting.
Speaker 4 (41:26):
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.
(41:46):
They have to come testify about you know, Russian interference
in the twenty sixteen election or this call between the
president and the Ukrainian president, and the executive branch still
says no. And that is the point that everyone says,
we have no idea what happens?
Speaker 3 (42:05):
Then we have no idea.
Speaker 4 (42:07):
Do you go arrest these 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 the kind of unwritten rules of the constitution. Well,
(42:31):
there's lots of written 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?
Speaker 3 (42:44):
What do you do?
Speaker 1 (42:46):
Well?
Speaker 2 (42:46):
I don't know because in the in the past, through
our history, and this is on both sides of the
of the Isle, Democrats and Republicans have always not successfully,
but they've always tried to argue that court should not
get in the subpoena battles and should not get involved
with this executive privileged claim right.
Speaker 4 (43:07):
And in particular, Trump's latest Trump's Legal Council's latest position,
which I think came out in September of this year,
is it's a doozy.
Speaker 3 (43:19):
It basically takes And here's here's.
Speaker 4 (43:21):
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 built on both Democrats and Republicans alike. There
has been a real push, basically since Nixon, to to
(43:42):
instill as much power into the presidency and the executive
branch as possible, and this is 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 administrations have done. And they're basically saying saying this,
if you subpoena us the executive branch, if you the
(44:05):
Congress subpoena one of our people, any of our people,
for any reason whatsoever, the President can say, no, do
not respond to that subpoena, do not go before Congress,
do not hand over those documents. I'm the president, I'm
ordering you to. Congress can issue a rid of contempt
or find the person in contempt, but that's it.
Speaker 3 (44:27):
That's where it ends. Because the president can say, well,
this is an inter branch dispute between the legislative branch
and the executive branch. And because the.
Speaker 4 (44:38):
Judiciary can't be drafted or shouldn't be drafted in to
solve these disputes, that's all it will remain is an
inner branch dispute, and 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
(44:58):
from the oversight of law law. It becomes above the law,
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 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
(45:22):
argument is sting us up for.
Speaker 1 (45:24):
Yeah, I mean, this is what the Justice Department.
Speaker 2 (45:25):
There was a great article in the Washington Post by
Harry Littman called the Justice Department's outlandish and arrogant position
on congressional subpoenas, 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
(45:46):
has decided not to do so.
Speaker 1 (45:48):
Right, So basically, yeah, they said no, and so they
said no.
Speaker 4 (45:53):
And all of this arose from an opinion regarding Trump's
tax returns, I believe.
Speaker 1 (45:58):
Yeah, that's sort of where the whole thing got started.
Speaker 4 (46:01):
Yeah, where the Treasury Secretary, Stephen Mnushin said no, we're
not doing that, and Congress said, well, we're holding you
in contempt. And then the Legal Office of Legal 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 going to do?
Speaker 3 (46:15):
What can you do? And that's that's the that's the
big question now.
Speaker 2 (46:19):
Well, and it makes you wonder what would have happened
if darryl Isa's bill had gone through? That makes subpoenas
super enforceable, right, because you know, we've seen it on
again on both sides of the aisle where one one
political party will get mad and and vote something in
that will come back to sting them later on.
Speaker 1 (46:41):
Right on the hind end, it is.
Speaker 4 (46:43):
But also you also can't help but wonder, like will
like is a republicans loyalty to Congress greater than the
Republican's loyalty to the executive branch. It's like, you know,
in any restaurant, there's tension between the white staff and
(47:04):
the kitchen staff, but they're all working at the same restaurant.
They're all trying to do the same thing, which is
get high quality, nourishing meals out to the patrons who
are citizens like you and me, Right, but there's still tension.
You're not doing it fast enough. Or 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.
Speaker 2 (47:25):
That's right, Well, what happened the end of the day,
Everyone just goes behind the restaurant and smokes a joint
by the dumpster.
Speaker 4 (47:31):
You know, maybe that would make our Congress or our
government work more efficiently if the executive branch and the
legislative branch and the judicial branch all got together and
burned a dooby together by the grease s trap, right exactly.
I don't even remember what my analogy was meant to insert.
But we it's fine, but we like we are witnessing
(47:53):
some historical stuff right now that that is not normal
at all. I mean, like from water stuff and that
I'm not even relating to impeachment proceedings. I'm just saying, like,
this level of ignoring congressional subpoenas may be unprecedented, and
if not, then the closest historical president we have is
the Watergate scandal. Yeah, but I think Congress is one
(48:17):
recourse to say, that's fine, that's fine, minution, you just
ignore us. We're going over here as Congress, and we
are altering this our ability to jail people to say no, actually,
we can find you two hundred and fifty thousand dollars
a day and we will do it. That could be
the leverage that gets people to actually comply with these subpoenas.
(48:39):
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.
Speaker 2 (48:46):
And there are also all sorts of other things have
nothing to do with this, that Congress uses as leverage
or negotiation tactics, like, hey, do you want us to
push through some of these appointees or should we just
keep stalling forever? All kinds of that stuff is on
the table. But when you have a president that comes
out in January and says, you know what, I don't
(49:09):
mind stall all you want. I like the term acting
because that gives me more leeway. Then all of a sudden,
that's not leverage anymore.
Speaker 3 (49:18):
You got anything else?
Speaker 1 (49:19):
No, I'm very curious to see what happens with this
McGan case. Probably nothing, I am too.
Speaker 3 (49:22):
Will it be the crumbling of our democracy? Who knows?
We'll find out in a few years.
Speaker 4 (49:28):
If you want to know more about subpoenas, we'll just
go look it up and if you get a subpoena yourself.
Speaker 3 (49:32):
Get a lawyer. Don't be stupid. And since I said
don't be stupid, friends, it's time for a listener. Mayw.
Speaker 2 (49:40):
I'm gonna this is about Obama's healthcare. I got a
bunch of stuff about this. I didn't realize I made
a prediction. Oh okay, oh yeah, yeah, yeah, that one's
kind of been sitting in the in the coffers. Okay, guys,
about fifteen months ago I start of my journey through
the stuff.
Speaker 1 (49:58):
You should know.
Speaker 2 (49:58):
Archives have been on the steady campaign about twelve to
sixteen episodes a week.
Speaker 3 (50:02):
That's healthy.
Speaker 1 (50:03):
Wow, why I'm writing though?
Speaker 2 (50:05):
Ten years ago Chuck made a bold prediction and the rumors,
the myths and truths behind Obama's healthcare plan episodes.
Speaker 1 (50:13):
Didn't we do like four of those?
Speaker 3 (50:16):
We did? Yeah? I think we did four.
Speaker 2 (50:18):
You're right, But this one was specifically about that episode, Chuck,
I said, call me in ten years if there are
no more private insurance companies, because that was one of
the big knocks on it. It's like, this is going
to do away with private insurance, and I'll buy you
a beer Chuck legitimately said I'm on record, and he
(50:39):
extended the bet to anyone out there. Now, that statement
was more of a gentleman's bet than a legal promise, however,
that is more binding in my opinion. Nonetheless, I would
like to congratulate you, Chuck. I was getting worried there
for a second on the expiration of that term and
that promisory statement. That could have been a pretty pricey liability.
That things turned out little differently a.
Speaker 3 (50:59):
Million Chuck, every single one of our listeners would have
written in and asked for it. I know.
Speaker 1 (51:05):
That is from Jack Simmons.
Speaker 4 (51:08):
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 do our best.
Speaker 2 (51:14):
To keep it up for you and everybody else that
emails a couple of months, although he's probably forgotten about it.
Speaker 3 (51:19):
Sorry, that's right, he's moved on to podsave America. That's right.
Speaker 4 (51:23):
Well, if you want to get in touch with us,
like Jack did, you can go on to stuff youshould
know dot com check out our social links there. You
can also send us an email, wrap it up, spank
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Speaker 1 (51:40):
Stuff you Should Know is a production of iHeartRadio. For
more podcasts my heart Radio, visit the iHeartRadio app, Apple Podcasts,
or wherever you listen to your favorite shows.
How to everybody.
Speaker 2 (00:02):
I'm just staring at this subpoena on my desk that
I'm going to ignore because I don't care about the
rule of law.
Speaker 1 (00:08):
This, Chuck.
Speaker 2 (00:09):
It's Saturday, and from October twenty nineteen, we are replaying
this episode about subpoenas. It's called What's the Deal with Subpoenas? Or,
as Jerry Seinfeld might say, h what's the deal with subpoenas?
That's my best Jerry Seinfeld. I hope you enjoyed it.
Speaker 1 (00:29):
Welcome to Stuff you should know, a production of iHeartRadio.
Speaker 3 (00:39):
Hey, welcome to the podcast.
Speaker 4 (00:40):
I'm Josh Clark, and there's Charles w Chuck Bryant, and
there's Jerry Jerome Rowland over there, the Legal Eagles of podcasting.
Speaker 1 (00:49):
Ooh, can I be Daryl Hannah?
Speaker 3 (00:51):
Yes, I call Barbara Hershey.
Speaker 1 (00:54):
I don't think so.
Speaker 2 (00:55):
Who was it, oh, Legal Eagles? I know Deborah Winger? Yes,
was Daryl Hannah even in that now.
Speaker 3 (01:01):
Yeah, she was the client of Deborah Winger.
Speaker 1 (01:03):
Okay, and you're not Redford?
Speaker 4 (01:06):
No, they always have to be Redford. Everybody's always like that.
Guy's a regular Robert Redford. He'll play him in this scenario.
Speaker 1 (01:13):
Right, that's that's the street chatter.
Speaker 3 (01:16):
Yeah.
Speaker 4 (01:16):
Can I still be Barbara Hershey even though she wasn't
in the movie. Sure, I think I'm thinking of beaches.
Speaker 1 (01:22):
Oh well, that means I get to be Bette Midler, right.
Speaker 4 (01:26):
I wonder how many podsave America listeners we just lost
to it just casually decided to give us a chance.
Speaker 1 (01:31):
I want to learn about subpoenas, all right. Before we
get going, though, can we.
Speaker 2 (01:36):
Quickly thank the cities of Orlando and Greater Orlando and
Florida and New Orleans and Greater Louisiana. Yes, for two
fun live shows.
Speaker 3 (01:46):
Yeah, those were a lot of fun. Let's see.
Speaker 4 (01:49):
We did Orlando on October ninth, I think, and then
the tenth for New Orleans. Regardless, it was night back
to back, two fun filled nights, and they were just
both the main shows.
Speaker 1 (02:00):
Yeah.
Speaker 2 (02:01):
And when this comes out, I think New York will
have been over. So thank you New York.
Speaker 4 (02:05):
Oh yeah, yeah, we we presume it's going to have
been a great time that three night run at the Bellhouse.
Speaker 1 (02:10):
They're always great there.
Speaker 3 (02:13):
And that's it too.
Speaker 4 (02:14):
That's it for us for the for the year, Chuck,
So I mean thank you to everybody who came out
to see our shows this year.
Speaker 2 (02:20):
Yeah, can we go ahead and tease our our January
schedule for should we not?
Speaker 3 (02:26):
I think we can sure?
Speaker 1 (02:28):
All right, well, well.
Speaker 2 (02:28):
We're hoping to be back at sketch Fest again. And
then what did we settle on?
Speaker 4 (02:34):
We I don't know settling is the right way to
put it up. We decided between the Seattle. We're doing Seattle,
oh we are, yeah, and normally for a January swing
we do Portland Seattle sketch Fest. Right, Well, we've got
the iHeart Radio Awards in there in Los Angeles and
we just you know, kind of have to go to that. No, sorry,
(02:56):
the iHeart Podcast Awards. They don't care about us at
all at the radio now.
Speaker 1 (03:00):
We can't even get in that building.
Speaker 3 (03:01):
Right exactly.
Speaker 4 (03:02):
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 and put it
with another town in the spring.
Speaker 3 (03:15):
So don't worry Portland, we will be out there.
Speaker 1 (03:17):
Maybe maybe the Cove.
Speaker 3 (03:19):
That's what that's the talk, that's the chatter around town.
Speaker 2 (03:21):
But we have no dates confirmed yet. But this just
look for us again in the Pacific Northwest at the
beginning of the year.
Speaker 3 (03:28):
That's a much better way to put it.
Speaker 4 (03:29):
Yeah, So, do you want to talk about subpoenas You
got any other housekeeping to do?
Speaker 1 (03:34):
I don't think so. Subpoenas weird spelling.
Speaker 4 (03:39):
Well, yeah, so I looked up the word 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.
Speaker 1 (03:53):
Of blah blah blah.
Speaker 5 (03:56):
Yeah.
Speaker 4 (03:56):
I was thinking all I could think about is really
dirty but dark stuff.
Speaker 3 (04:00):
Oh yeah, yeah, so I just.
Speaker 4 (04:02):
Let you fill in the blah blah blah. But anyway,
under penalty of whatever, you need to do one of
two things. 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.
Speaker 2 (04:22):
Yeah, or you think of the US government because a
lot of this is going to be about congressional subpoenas
because that's really the juiciest subpoena.
Speaker 4 (04:29):
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 age, this generation.
Speaker 3 (04:40):
I mean, it's been going on for a while.
Speaker 4 (04:41):
But normally when people think subpoenas, until like basically twenty seventeen,
sixteen eighteen, not necessarily in that order, 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.
Speaker 1 (04:58):
That's right.
Speaker 2 (04:59):
But you mentioned the two types. Do you want to
break out your Latin or shall.
Speaker 3 (05:04):
I you take the first, I'll take the second.
Speaker 1 (05:07):
Oh okay, the first one's easy.
Speaker 2 (05:10):
The first one is subpoena add testify candem.
Speaker 4 (05:15):
Wow did you see that? You just made a mouse
appear and run out of the room. The next one
so so sorry. The first one, the one you just said.
Speaker 1 (05:24):
That means you got to come to court.
Speaker 3 (05:26):
You just nailed it.
Speaker 4 (05:27):
Yeah, it says that you have to come and testify,
and you might not be a party to the lawsuit
like this is. It can be a civil case or
a criminal case, that's a big thing to point out,
but basically it's saying, you have some information. You witnessed
an act, you overheard a conversation, the defendant confessed something
(05:49):
to you. We need you to come to court and
tell your story. And that's what that first subpoena is
saying to do.
Speaker 2 (05:55):
Yeah, and not necessarily court court, but it can be
any kind of legal authority.
Speaker 4 (05:58):
Yeah, it could be a deposition, it could be an arbitration,
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 don't listen. That's that's used to kind
of enforce subpoenas. So the second one is the subpoena
(06:20):
douces teakum, Hey nice, thank you, and that is basically saying, hey,
you have a document, you have a hair sample, you
have some sort of bodily fluids we want to get
our hands on.
Speaker 3 (06:33):
You have a computer.
Speaker 4 (06:36):
Or a computer hard drive, 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
(06:57):
have this 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
for one side or the other saying, Hey, I heard
that this person has this 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.
Speaker 2 (07:16):
And then the judge says, speak to my clerk, and
then the clerk of the usually the clerk of the
judge who's.
Speaker 3 (07:22):
Handling that case, they say, talk to the hand.
Speaker 2 (07:25):
Yeah, and they'll generally issue it on on like official
court letterhead and official documentation. It's not like the judge
is washing their hands of it necessarily.
Speaker 4 (07:36):
No, No, I'm sure like if they do something egregiously wrong,
the judge is going to hear about it and punish them.
Speaker 1 (07:42):
That's right. And then it served usually in person kind
of you know, handed to you like on the TV
shows and in the movies.
Speaker 3 (07:50):
Yeah, either by a sheriff's deputy or a process server.
Speaker 1 (07:54):
Yeah, but not always.
Speaker 2 (07:55):
It depends on if it's congressional or if it's you know,
civil regular Joshmo stuff.
Speaker 3 (08:04):
Yeah. Well, yeah for sure.
Speaker 4 (08:05):
But I think even if it is regular civil joshmost stuff,
you can still go higher the sheriff's department to serve papers.
Speaker 3 (08:13):
To serve a subpoena, oh for sure.
Speaker 1 (08:14):
I think the congressional ones are not served by a shriff.
Speaker 3 (08:17):
Oh, I see, who do they use?
Speaker 1 (08:19):
I think it depends it could.
Speaker 2 (08:21):
I mean the way congressional subpoena's work is all sort
of dependent on the individual committee that's seeking that subpoena.
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 grant or request a subpoena.
Speaker 4 (08:43):
Right, I've read some of them know that it's a
real downer to get a subpoena. Say, some congressional committees
use that mascot from the nineteen eighty four Olympics, the Eagle,
to come issue your.
Speaker 3 (08:54):
Papers to you.
Speaker 1 (08:56):
I don't remember that one.
Speaker 3 (08:57):
You don't remember that eagle.
Speaker 4 (08:58):
Now it's like a cartoon eagle from nineteen eighty four.
Speaker 1 (09:02):
Yeah, I mean all I can.
Speaker 2 (09:03):
I can't get past the Atlanta Olympics mascot. That's why
I can't get back to nineteen eighty four?
Speaker 3 (09:08):
Was it? What's it? Or who's it?
Speaker 1 (09:09):
Oh? I don't even know.
Speaker 3 (09:11):
It was one of those too. What was that thing?
Speaker 1 (09:14):
I don't know.
Speaker 3 (09:15):
It was a last last minute thing.
Speaker 1 (09:17):
What was the name it was?
Speaker 3 (09:18):
What's it? Or who's it? Was it?
Speaker 1 (09:20):
Yes?
Speaker 2 (09:22):
Yes, man, it was bad. I was out of town.
I fled.
Speaker 3 (09:25):
You didn't miss anything.
Speaker 2 (09:26):
But I do remember watching the opening whatever they're called,
the opening ceremonies, Opening ceremonies, right, and seeing the stainless
steel pickup trucks driving around and just thinking, oh boy.
Speaker 3 (09:40):
Yeah.
Speaker 4 (09:41):
And for those of you who are like, they've talked
about this before, we have. Yeah, we have, and we're
still that upset about it.
Speaker 1 (09:46):
We'll talk about it again in five more years.
Speaker 3 (09:48):
We haven't forgotten.
Speaker 1 (09:49):
Yeah, stainless steel pickup trucks. They haunt me. I have
dreams about those trucks.
Speaker 4 (09:53):
Yeah, they're just circling you, playing striper at the loudest
possible volume. Oh man, Okay, 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
(10:13):
they're served the paper, and that is, can I ignore
this thing?
Speaker 3 (10:18):
Do I have to do this right?
Speaker 4 (10:20):
What happens to me if I just pretend like I
never got this? And that's really tough to do. I
was reading about process servers and the 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. There's
like certain rules and regulations to serving somebody with a subpoena,
(10:42):
so 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 a 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.
Speaker 1 (11:02):
They'll stick their hands in their ears and go.
Speaker 3 (11:03):
La la la la la la.
Speaker 4 (11:05):
Right, exactly, they'll do a lot of stuff to keep
from being served, but that's actually it will.
Speaker 3 (11:10):
Just delay being served.
Speaker 4 (11:12):
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, it made it to their house, that's enough.
Or if you can say I took the numbers off
my mailbox, what are you going to do now, chump.
They can actually post an ad in the local legal
(11:33):
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.
Speaker 2 (11:47):
Yeah, I mean it says here in this article, which
most of this is from the House Stuff Works article
about saboenas, but it says, you know, it's a lot
easier if you just go right or produce the documents.
But we'll cover here in a lot of this congressional
oversight stuff that is not the route that people take
generally in government.
Speaker 4 (12:07):
Yeah, and I thought it was kind of an oversight
to not say like, but also if somebody serves you
with a 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 should I do with this?
Speaker 3 (12:22):
Is this?
Speaker 4 (12:22):
You know, you know, there's a lot of questions that
you should have answered before you just act on a subpoena.
Speaker 2 (12:29):
Yeah, and you know, when it comes to ignoring subpoenas,
and that's what a lot.
Speaker 1 (12:33):
Of this will be about.
Speaker 2 (12:34):
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.
Speaker 1 (12:47):
But there have been some very.
Speaker 2 (12:48):
Famous cases in the past, you know, fifteen years or
so where subpoenas have been ignored, starting well, not starting
with but we can start with Eric Holder, Attorney General
for Barack Obama.
Speaker 3 (13:03):
Yeah, that was a big one.
Speaker 2 (13:04):
That was part of the Operation the Fast and Furious
scandal scandal.
Speaker 4 (13:10):
Yeah, it was definitely a scandal. From what I remember,
it involved like secret gun sales or else. Some guns
were 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.
Speaker 2 (13:27):
Attorney General Eric Holder refused, under direction of Obama, to
answer that subpoena, and he became the first sitting cabinet
member to be voted in contempt of Congress.
Speaker 3 (13:39):
Oh was that right?
Speaker 1 (13:41):
Yeah?
Speaker 2 (13:41):
And you know you're like, oh, what happens in well,
three and a half years later a judge ruled that
he did not have the right to defy Congress, and
by that time there was a new Congress, and it
was a mood point.
Speaker 4 (13:56):
That's a really big big thing to remember. Is like
an eempt of Congress vote where you are supposedly in
trouble for ignoring a subpoena, only lasts as long as
that session of Congress.
Speaker 1 (14:08):
Unless the next session of Congress wants to pick it up.
Speaker 4 (14:11):
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 enough that if you if you make it through
that Congress, you know going into recess, you 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
(14:32):
got away with it. Harriet Myers, who was a White
House counsel to George W.
Speaker 3 (14:37):
Bush.
Speaker 4 (14:37):
There was like a mass political firing of US attorneys.
Speaker 1 (14:42):
Yeah, and two thousand and eight yep.
Speaker 4 (14:44):
And 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,
they're like they could face fines, jail time. Finally I
found some follow up as like nothing nothing happened, Absolutely
nothing happened. There was no legal ramifications, there were no
(15:06):
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, yeah, which
is essentially what you're saying when you ignore a subpoenas yeah.
Speaker 2 (15:25):
And because of this, you remember Representative darryl Isa probably
by name. 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 it died in the Senate, and before we I
(15:47):
think we're about to take a break.
Speaker 1 (15:48):
Before we do that, though, we should.
Speaker 2 (15:49):
Mention that currently White House Counsel Don McGann has refused
to testify or refused to answer his subpoena under direct
order of Trump, and right now he's being sued by
the House right of August.
Speaker 4 (16:06):
And he in particular provides an unusual situation because at
least with Harriet Myers, or with Joshua Bolton, or with
Eric Holder, when they were directed by the President at
the time not to submit to that subpoena from Congress,
they were part of the president's staff. Don McGann was
instructed not to not to cooperate with the subpoena after
(16:30):
he had already left civil service. He was no longer
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 a 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
(16:51):
of establishes that. And I say, Chuck, we take a break,
and then we'll dive into that after this case.
Speaker 5 (16:57):
Law Josh.
Speaker 4 (17:19):
So Chuck, there's something about subpoenas, whether they're issued by
Congress or by a court of law, when you get
them that a lot of people don't realize they're negotiable. Yeah,
that's one really big reason to hire a lawyer is
because they it may be overly broad, it may be
kind of a phishing expedition. It may put you at
(17:41):
risk to come forward and give this testimony or to
hand over these documents. And 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,
(18:02):
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 negotiate a higher fee or something
like that. There's a lot of stuff that can be done,
but this is a tactic that's also used with congressional subpoenas. Too,
where say, like the executive branch will go, I think
(18:23):
that this is a little overly broad, but maybe we
could give you this document.
Speaker 3 (18:26):
Will that satisfy you?
Speaker 1 (18:27):
And then I go nope.
Speaker 4 (18:29):
Sometimes I say yes, though, and part of that negotiation
comes out of this subpoena process. It's a response to it.
But none of it would have any effect whatsoever if
Congress didn't have any redress for enforcing its subpoenas. If
somebody ignores it.
Speaker 2 (18:47):
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
something with each other over a pretty long period of
(19:09):
time usually for sure.
Speaker 4 (19:11):
Yeah, that Eric Holder thing was it was like four
years before he finally handed over the file, and I
think Congress had already gone out a session, you said,
And it was basically just the whole thing had died down,
which I think is basically the stalling tactic that people
ignore subpoenas for like that's why they're doing it.
Speaker 1 (19:29):
Yeah.
Speaker 2 (19:29):
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 basic ways that you can prosecute that.
Speaker 4 (19:48):
Charge, right, and each one is worthless. Yeah, pretty much
like this is. We would never give official legal advice.
First of all, 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
(20:12):
down the food chain you are, the more likely Congress
is to do something in retaliation to you.
Speaker 2 (20:20):
Yeah, well, let's go through the three at least fine,
if for no other reason than pure folly. So if
they vote and that contempt citation goes through, it is
then under the control of the executive branch. And you think,
oh great the president or oh great the president, it's
(20:40):
really neither. It 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 criminally, and they're
going to say no. They're going to say and we'll
talk a lot about executive privilege coming up, but they'll
usually cite that and decline to prosecute, basically kind of saying,
you know what, we don't get involved in this stuff.
Speaker 3 (21:02):
Right.
Speaker 4 (21:02):
So that is specifically when it comes to subpoenaing something
from the White House correct or the executive bridge. Now,
if Congress is being ignored by, say like the owner
of the Houston Astros, they can go to the DOJ
and say, hey, the Houston Astros baseball team owner is
ignoring a subpoena. We want you to go after the guy,
(21:24):
and they'll go after the guy. It's when it's executive
privilege that's being cited that the DOJ 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.
Speaker 2 (21:39):
Matter Number two is 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's stiffed us.
Speaker 4 (21:55):
Right, Like, you know how you can go arrest somebody
and put him in jail? Can you do that on
our behalf? Basically?
Speaker 1 (22:00):
But this is super slow, like turtle like slow.
Speaker 3 (22:05):
Yeah.
Speaker 4 (22:05):
But I think the idea is that 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 one hundred thousand dollars to Congress
or something like that, or spend like twelve months in
jail will get you to the table to negotiate you know,
(22:25):
what documents they actually want or what testimony they want.
Speaker 2 (22:28):
Yeah, it's just leverage, right. So the third one is
something that isn't used anymore.
Speaker 1 (22:34):
Really.
Speaker 2 (22:34):
It's called inherent contempt power. It was last yused 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.
Speaker 4 (22:47):
Yeah, and like the sergeant at arms of the Senate
or the House, depending on who's issuing the subpoena and
who voted to 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, or,
as has been kind of boo bounced around lately by
(23:11):
Democrats in the House, replacing the idea of jailing somebody,
of arresting and jailing them with a much much stiffer
fine than people have traditionally faced, something more on the
order of I think between twenty five and two hundred
and fifty thousand dollars I think a day actually for
ignoring this kind of stuff, which we guess that would
get people moving if they actually go through.
Speaker 2 (23:33):
With that, yeah, I would think. So hit them in
the pocketbook, yeah, I.
Speaker 4 (23:38):
Mean that hard's and it pluses the government too. So
it's like, hey, you know these tax credits you're getting,
were taking those away and this tax return that you
were expecting, we're going to hang on to that Like
that's this is where they could actually do something.
Speaker 3 (23:51):
Yeah, I think so.
Speaker 2 (23:53):
If it's not a congressional subpoena, if it's just like
we're talking about a regular court subpoena, it all depends
and what jurisdiction you're in, and the presiding Chudge that's
on that case.
Speaker 4 (24:05):
Yes, but again, because you can be arrested as a
matter of routine course of a court, you really should
respond at least to a subpoena or else. You know,
the chances of something happening to you from a court
of law are much higher than Congress apparently.
Speaker 1 (24:22):
Sure, so can we talk about case law?
Speaker 4 (24:26):
Yes, finally we got all that boring stuff out of
the way.
Speaker 2 (24:30):
Yeah, this first one is kind of interesting. And the
way the judiciary works in this country is just super
fascinating to me. The older I get, the more I
read about it. I'm not becoming a legal wonk by.
Speaker 3 (24:40):
Any means illegal legal, but I get.
Speaker 1 (24:44):
It, Like, you know, I get it that people are
super into this kind of thing.
Speaker 3 (24:48):
I hadn't realized you've gotten into the judiciary.
Speaker 1 (24:51):
Yeah, I think it's pretty fascinating.
Speaker 4 (24:53):
What got you into it? Just like news following the
news or something or uh.
Speaker 2 (24:57):
Yeah, And it's just sort of reading about a case
like in this case from eighteen hundred, and then you
know precedent and what that means, right, and when it
shouldn't matter and should matter.
Speaker 3 (25:10):
Like the one from eighteen hundred you're talking about is
US v. Cooper.
Speaker 2 (25:14):
Yeah, Thomas Cooper, who was a scientist and an attorney
and a thorn in the side of President John Adams
right in a big way.
Speaker 3 (25:23):
Yeah.
Speaker 4 (25:24):
So, in I think seventeen ninety eight, Yeah, the US
passed the Sedition Act, which said that it's illegal to
criticize the US government.
Speaker 1 (25:33):
Yeah.
Speaker 4 (25:34):
Unfortunately, when Thomas Jefferson came into office, he said, we're
gonna kind of do away with that and keep it
away forever as much as we can. But there 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 lost his case.
(25:56):
But the way that it relates to subpoenas an ignoring
subpoena is specifically the executive branch ignoring subpoenas. Is that
all the way back in eighteen hundred, when 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
(26:18):
don't really subpoena presidents we've decided. Yeah, and that's not
a precedent for the rest of history. It basically said
presidents are accepted from the goings on in normal court stuff,
even when they're directly related to the case.
Speaker 3 (26:33):
They don't have to.
Speaker 2 (26:34):
Come right, But that same case is said, but you
can subpoena it's someone from Congress.
Speaker 3 (26:39):
That's a big one too.
Speaker 2 (26:40):
That was a big one 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.
Speaker 3 (26:49):
You got it in this case. You could say it
either way.
Speaker 1 (26:53):
I guess. So. So that moves us on to seven
years later US v. Burr.
Speaker 2 (27:01):
This is John Marshall. Chief Justice John Marshall headed this
one up and basically this had to deal with President
Thomas Jefferson saying, hey, they want you to come to
provide these documents.
Speaker 1 (27:15):
It was a Doozy's teacom, right, du says, c's doc's
Ducy's teacum.
Speaker 2 (27:23):
And Jefferson was like, hey, here are some of those
documents that you want, and they're like, but where the
rest of them? He was like, you know, I'm not
going to give you those and I'm also not going
to show up because you know what, I got to
be presidenting.
Speaker 4 (27:37):
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 twenty four seven, three sixty five. Yeah,
and I just can't get away, like I'm my work
is too important to come be part of this, and
that gets think.
Speaker 1 (27:54):
Gets less and less able to prove these days, I think, yeah,
for sure.
Speaker 4 (28:00):
Like you could take off, I have a day, right,
you got a BlackBerry, you can definitely email, keep tabs
on work while you're gone.
Speaker 3 (28:07):
But yeah, so I thought the same thing too.
Speaker 4 (28:09):
That does not hold water, but it does set a
president for the president, like you were saying too in
those two cases basically say together again, the president doesn't
have to come be part of this, and executive privilege
is I guess where this came from from this particular
case where it's saying like, no, the president doesn't have
(28:31):
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 going to call this executive privilege.
Speaker 2 (28:40):
Right, And there are five basically 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. Fourth one is law
enforcement investigations. And the fifth one is anything that's sensitive
(29:05):
in terms of military or national security or diplomatic relations,
that kind of thing.
Speaker 4 (29:10):
And that's the one in particular that has been upheld
over the years.
Speaker 3 (29:14):
It's the idea that.
Speaker 4 (29:16):
Like, there are secrets that the White House has that
it just need to be kept or else people 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.
Speaker 1 (29:36):
Yeah, because obviously an executive a president is going to
try and draw that privilege as broadly as possible.
Speaker 3 (29:42):
Oh yeah, for sure.
Speaker 4 (29:43):
And that's especially been the case ever since Nixon onward,
at least, where there's this idea called the unitary executive theory,
which is basically, like, you know, these are separate branches
of government, and the executive branch is in charge of
everything to do with the executive branch has, it's none
of Congress's business. And the executive is basically this extraordinarily
(30:06):
powerful single person, and that's been attempted to be invoked
and prove 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 entire president staff and
(30:29):
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, really there's really just one hand.
The great value of having an executive like almost a
well a unitary executive is that if you're a vested
(30:51):
interest or a very powerful group, you've only got one
person to change over to your side, rather than five hundred.
Speaker 3 (30:59):
Of them, you know what I mean. Yeah, So it's
very dangerous.
Speaker 4 (31:02):
It also very much flies in the face of the
three branches of government and the checks and balances that
each one's supposed to have over the other. Yes, because
part of Congress's role is what's called congressional oversight.
Speaker 1 (31:15):
Yep.
Speaker 4 (31:15):
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 no
law that should be passed.
Speaker 3 (31:27):
I'm going to say no to this law. And then
the judiciary has judicial review.
Speaker 4 (31:32):
They get to say this law is unjust or this
executive agency's action is illegal. 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, no, the executive branch is more powerful than.
Speaker 3 (31:50):
All of them. The other two don't have checks over them,
and let's just see what happens from here.
Speaker 1 (31:55):
That's right. Should we talk about Watergate?
Speaker 3 (31:57):
Yeah?
Speaker 2 (31:58):
So everyone, we should do a full episode on Watergate.
I think I've said that before. I agree, but everyone
knows what happened there. President Nixon was involved in some
hinky activities and congressional committees. There was one special prosecutor
in particular named Archibald Cox, who said, wait a minute,
(32:19):
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 Nan said, you demand, and we want you to
come here and testify as well. And of course Nixon
was like, I don't think that stuff's going to happen.
Here you go, here are some of these tapes. Just
(32:41):
ignore all the parts where it seems like it was
heavily edited and sounds real funny because someone who was
just in the room is no longer in the room,
and there are non sequiturs all over the place.
Speaker 4 (32:52):
It's like the videotape of the guy who got the
high score in Donkey Kong.
Speaker 3 (32:56):
Right, yeah, you know what I mean.
Speaker 2 (33:00):
But executive privilege was 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 cited everything from Justice Marshall's Marbury v. Madison to
the one we just talked about, United States v. BurrH
And basically, they're walking a fine line there with the
(33:25):
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, due
process of law 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.
Speaker 4 (33:46):
It seems like, yeah, and I think they did a
very good job. And the fact that it was unanimous.
I think Rehnquist was involved with some of the people involved,
so he recused himself from voting, but it was unanimous
eight to zero vote saying no, you got to hand
the tapes over because we don't think that you're just
(34:07):
trying to protect 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 exactly, and
that does not supersede due process in a court of law,
which is going on over here with the trials of
these guys who broke into the Watergate. So you got
(34:31):
to hand over the tapes, and in doing so, like
you said, he cited another case Marbury v. Madison, And
that's a really really important case in here too, which
I think we should talk about starting now.
Speaker 2 (34:45):
Well, I wanted to mention another quick thing before you
dive into Marbury another case usv.
Speaker 1 (34:51):
At and T.
Speaker 2 (34:51):
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.
Speaker 1 (35:00):
Basically said, we're the last stop here.
Speaker 2 (35:02):
Don't just go run into the Supreme Court or the
courts in general to figure this stuff out for you.
Speaker 4 (35:08):
Right, Although I think 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.
Speaker 1 (35:20):
Yeah, all At and T.
Speaker 2 (35:22):
The case said was you have to really try to
work it out amongst yourself before it even gets to us.
Speaker 3 (35:26):
Oh gotcha. Okay, yeah, I gotcha. I see, I see
what you're saying. Yeah yeah.
Speaker 1 (35:30):
So good faith, of course, is broadly defined too.
Speaker 4 (35:32):
So in Marborie versus Madison, that one basically said, hey,
there's this one component here.
Speaker 3 (35:40):
Yes, the.
Speaker 4 (35:42):
We've established that the legislative branch Congress can issue subpoenas
and that the executive branch can exert executive privilege and
say no toe some subpoenas under some cases. But we're
also going to say In US v. Nixon in nineteen
seventy four, that the court can say, no, your right
to secrecy is overshadowed by a right to do process
(36:06):
in most cases.
Speaker 3 (36:08):
But the one that really says at the center of.
Speaker 4 (36:11):
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 oh four, and it was, from what
I understand, a masterstroke of legal eagleness by Justice John Marshall.
Speaker 1 (36:35):
Yeah.
Speaker 2 (36:35):
So is the long and short of that one that
Secretary of Saint James Madison he was trying to withhold
the commission of William Marbury.
Speaker 1 (36:44):
Was that the case?
Speaker 4 (36:45):
Yeah, because the outgoing Adams had packed the courts with
friendly judges, the commissions had not all been mailed out,
and Madison was withholding some.
Speaker 2 (36:54):
And they basically said, listen, man, 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.
Speaker 3 (37:06):
So that was one part of it.
Speaker 4 (37:08):
But what Marshall figured out and what made this a
master stroke of legal legalness, is that the there was
a something called a writ of mandamus, which basically says
you have to do this, which had been granted to
the Supreme Court in the like an Act in seventeen
eighty nine. Marshall said, so, yes, Madison has to give
(37:32):
this over like, this is just part of his duties,
and he's following a law that Congress made, so he's
subject to that law as a minister of the government.
But at the same time, the rit of mandamus power
that's a Supreme Court has been given is unconstitutional. We're
not in a position to issue a rid of mandamus
because under the Constitution we're not given that right. And
(37:54):
so in doing that, he established the Supreme Court as
the interpreter of what law is constitutional and what isn't right.
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 a
(38:15):
tremendous advantage over the centuries in interpreting what law is
constitutional and what isn't and placing itself as the arbiter
of disputes between the legislative branch and the executive branch.
Speaker 2 (38:26):
Yeah, which is I mean, that's a lot of what
the Supreme Court decides is constitutionality.
Speaker 3 (38:31):
And it all comes from that eighteen and oh four case.
Speaker 1 (38:34):
Landmark Legal Legal. Should we take another break?
Speaker 3 (38:38):
Sure?
Speaker 2 (38:39):
Man, all right, we'll 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 a
sabena right after that.
Speaker 4 (38:48):
Jaw.
Speaker 2 (38:53):
So we all know what happened to Nixon, what the
Justice did rule that, Hey, dude, you got to comply
(39:15):
with this Deucey's tectim here and you got to turn
over these tapes.
Speaker 1 (39:20):
So Nixon, uh turned over tapes.
Speaker 4 (39:24):
He did, and it all worked out in the end.
Everybody's like, this is what you were protecting. This is fine, man,
stay president for a couple more terms. And he did,
and the world was a better place.
Speaker 1 (39:33):
For it, that's right. Flash forward to uh to Bill Clinton.
Speaker 3 (39:39):
That was okay.
Speaker 1 (39:40):
So he said, hey, listen, man.
Speaker 3 (39:42):
What goes on and that's much better.
Speaker 2 (39:44):
What happens in the Oval office stays in the oval office.
Executive privilege. They're like even that stuff. And he said, well,
you know, it's it's his executive privilege. Harika Panke falls
under executive privileg So he said, I have executive unity,
I have that privilege, and neither me nor my aides
(40:07):
have to respond to these subpoenas. And then he fell
into line eventually.
Speaker 3 (40:12):
Due Gingrich got him into line.
Speaker 1 (40:15):
Well, yeah, and largely because of US v. Nixon.
Speaker 2 (40:19):
They said, you know what, you can't stand by this
broad executive privilege, stand behind this wall that you've built.
Speaker 1 (40:28):
You're going to have to comply. And he did eventually right.
Speaker 4 (40:32):
Which is traditionally what happens, like the Congress issues subpoenas,
is an executive branch ignores it. The Congress holds the
executive branch and contempt, and the judiciary comes in and
almost always says, no, you're over exerting your executive privilege
to what they're saying.
Speaker 2 (40:50):
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 that that.
Speaker 4 (41:02):
Only holds as long as two things are upheld. One
that 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.
Speaker 3 (41:23):
This is where we are starting.
Speaker 4 (41:26):
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.
(41:46):
They have to come testify about you know, Russian interference
in the twenty sixteen election or this call between the
president and the Ukrainian president, and the executive branch still
says no. And that is the point that everyone says,
we have no idea what happens?
Speaker 3 (42:05):
Then we have no idea.
Speaker 4 (42:07):
Do you go arrest these 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 the kind of unwritten rules of the constitution. Well,
(42:31):
there's lots of written 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?
Speaker 3 (42:44):
What do you do?
Speaker 1 (42:46):
Well?
Speaker 2 (42:46):
I don't know because in the in the past, through
our history, and this is on both sides of the
of the Isle, Democrats and Republicans have always not successfully,
but they've always tried to argue that court should not
get in the subpoena battles and should not get involved
with this executive privileged claim right.
Speaker 4 (43:07):
And in particular, Trump's latest Trump's Legal Council's latest position,
which I think came out in September of this year,
is it's a doozy.
Speaker 3 (43:19):
It basically takes And here's here's.
Speaker 4 (43:21):
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 built on both Democrats and Republicans alike. There
has been a real push, basically since Nixon, to to
(43:42):
instill as much power into the presidency and the executive
branch as possible, and this is 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 administrations have done. And they're basically saying saying this,
if you subpoena us the executive branch, if you the
(44:05):
Congress subpoena one of our people, any of our people,
for any reason whatsoever, the President can say, no, do
not respond to that subpoena, do not go before Congress,
do not hand over those documents. I'm the president, I'm
ordering you to. Congress can issue a rid of contempt
or find the person in contempt, but that's it.
Speaker 3 (44:27):
That's where it ends. Because the president can say, well,
this is an inter branch dispute between the legislative branch
and the executive branch. And because the.
Speaker 4 (44:38):
Judiciary can't be drafted or shouldn't be drafted in to
solve these disputes, that's all it will remain is an
inner branch dispute, and 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
(44:58):
from the oversight of law law. It becomes above the law,
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 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
(45:22):
argument is sting us up for.
Speaker 1 (45:24):
Yeah, I mean, this is what the Justice Department.
Speaker 2 (45:25):
There was a great article in the Washington Post by
Harry Littman called the Justice Department's outlandish and arrogant position
on congressional subpoenas, 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
(45:46):
has decided not to do so.
Speaker 1 (45:48):
Right, So basically, yeah, they said no, and so they
said no.
Speaker 4 (45:53):
And all of this arose from an opinion regarding Trump's
tax returns, I believe.
Speaker 1 (45:58):
Yeah, that's sort of where the whole thing got started.
Speaker 4 (46:01):
Yeah, where the Treasury Secretary, Stephen Mnushin said no, we're
not doing that, and Congress said, well, we're holding you
in contempt. And then the Legal Office of Legal 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 going to do?
Speaker 3 (46:15):
What can you do? And that's that's the that's the
big question now.
Speaker 2 (46:19):
Well, and it makes you wonder what would have happened
if darryl Isa's bill had gone through? That makes subpoenas
super enforceable, right, because you know, we've seen it on
again on both sides of the aisle where one one
political party will get mad and and vote something in
that will come back to sting them later on.
Speaker 1 (46:41):
Right on the hind end, it is.
Speaker 4 (46:43):
But also you also can't help but wonder, like will
like is a republicans loyalty to Congress greater than the
Republican's loyalty to the executive branch. It's like, you know,
in any restaurant, there's tension between the white staff and
(47:04):
the kitchen staff, but they're all working at the same restaurant.
They're all trying to do the same thing, which is
get high quality, nourishing meals out to the patrons who
are citizens like you and me, Right, but there's still tension.
You're not doing it fast enough. Or 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.
Speaker 2 (47:25):
That's right, Well, what happened the end of the day,
Everyone just goes behind the restaurant and smokes a joint
by the dumpster.
Speaker 4 (47:31):
You know, maybe that would make our Congress or our
government work more efficiently if the executive branch and the
legislative branch and the judicial branch all got together and
burned a dooby together by the grease s trap, right exactly.
I don't even remember what my analogy was meant to insert.
But we it's fine, but we like we are witnessing
(47:53):
some historical stuff right now that that is not normal
at all. I mean, like from water stuff and that
I'm not even relating to impeachment proceedings. I'm just saying, like,
this level of ignoring congressional subpoenas may be unprecedented, and
if not, then the closest historical president we have is
the Watergate scandal. Yeah, but I think Congress is one
(48:17):
recourse to say, that's fine, that's fine, minution, you just
ignore us. We're going over here as Congress, and we
are altering this our ability to jail people to say no, actually,
we can find you two hundred and fifty thousand dollars
a day and we will do it. That could be
the leverage that gets people to actually comply with these subpoenas.
(48:39):
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.
Speaker 2 (48:46):
And there are also all sorts of other things have
nothing to do with this, that Congress uses as leverage
or negotiation tactics, like, hey, do you want us to
push through some of these appointees or should we just
keep stalling forever? All kinds of that stuff is on
the table. But when you have a president that comes
out in January and says, you know what, I don't
(49:09):
mind stall all you want. I like the term acting
because that gives me more leeway. Then all of a sudden,
that's not leverage anymore.
Speaker 3 (49:18):
You got anything else?
Speaker 1 (49:19):
No, I'm very curious to see what happens with this
McGan case. Probably nothing, I am too.
Speaker 3 (49:22):
Will it be the crumbling of our democracy? Who knows?
We'll find out in a few years.
Speaker 4 (49:28):
If you want to know more about subpoenas, we'll just
go look it up and if you get a subpoena yourself.
Speaker 3 (49:32):
Get a lawyer. Don't be stupid. And since I said
don't be stupid, friends, it's time for a listener. Mayw.
Speaker 2 (49:40):
I'm gonna this is about Obama's healthcare. I got a
bunch of stuff about this. I didn't realize I made
a prediction. Oh okay, oh yeah, yeah, yeah, that one's
kind of been sitting in the in the coffers. Okay, guys,
about fifteen months ago I start of my journey through
the stuff.
Speaker 1 (49:58):
You should know.
Speaker 2 (49:58):
Archives have been on the steady campaign about twelve to
sixteen episodes a week.
Speaker 3 (50:02):
That's healthy.
Speaker 1 (50:03):
Wow, why I'm writing though?
Speaker 2 (50:05):
Ten years ago Chuck made a bold prediction and the rumors,
the myths and truths behind Obama's healthcare plan episodes.
Speaker 1 (50:13):
Didn't we do like four of those?
Speaker 3 (50:16):
We did? Yeah? I think we did four.
Speaker 2 (50:18):
You're right, But this one was specifically about that episode, Chuck,
I said, call me in ten years if there are
no more private insurance companies, because that was one of
the big knocks on it. It's like, this is going
to do away with private insurance, and I'll buy you
a beer Chuck legitimately said I'm on record, and he
(50:39):
extended the bet to anyone out there. Now, that statement
was more of a gentleman's bet than a legal promise, however,
that is more binding in my opinion. Nonetheless, I would
like to congratulate you, Chuck. I was getting worried there
for a second on the expiration of that term and
that promisory statement. That could have been a pretty pricey liability.
That things turned out little differently a.
Speaker 3 (50:59):
Million Chuck, every single one of our listeners would have
written in and asked for it. I know.
Speaker 1 (51:05):
That is from Jack Simmons.
Speaker 4 (51:08):
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 do our best.
Speaker 2 (51:14):
To keep it up for you and everybody else that
emails a couple of months, although he's probably forgotten about it.
Speaker 3 (51:19):
Sorry, that's right, he's moved on to podsave America. That's right.
Speaker 4 (51:23):
Well, if you want to get in touch with us,
like Jack did, you can go on to stuff youshould
know dot com check out our social links there. You
can also send us an email, wrap it up, spank
it on the bottom and send it off to stuff
podcast at iHeartRadio dot com.
Speaker 1 (51:40):
Stuff you Should Know is a production of iHeartRadio. For
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Chuck Bryant
Josh Clark
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