Selects: What's the deal with subpoenas? | STUFF YOU SHOULD KNOW

Howdy everybody. 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. Uh this is Chuck. It's. Saturday and from October 2019. We are. replaying this episode about subpoenas. It's called What's the Deal with. Subpoenas? Or as Jerry Seinfeld might. say, what's the deal with subpoenas? That's my best Jerry Seinfeld. I hope. you enjoyed it. Welcome to Stuff You Should Know, a.

production of iHeart Radio. Hey, and welcome to the podcast. I'm. Josh Clark and there's Charles W. Chuck. Bryant and there's Jerry Jerome Roland. over there. Uh, the legal eagles of. podcasting. >> Can I be Daryl Hannah? >> Yes. I call uh Barbara Hershey. >> I don't think so. >> Who was it? Oh, Legal Eagles. I know. Deborah Winger. >> Yes.

>> Was Daryl Hannah even in that now I. think. >> Yeah, she was the client of Deborah. Winger. >> Okay. And you're not Redford? >> No. >> I always have to be Redford. Everybody's. always like, "That guy's a regular. Robert Redford. He'll play him in this. scenario, >> right? That's the street chatter.". >> Yeah. Can I still be Barbara Hershey. even though she wasn't in the movie? >> Sure. >> I think I'm thinking of Beaches. >> Oh, well that means I get to be B. Hiddler, >> right? I wonder how many Pods Save. America listeners we just lost who had. just casually decided to give us a.

chance. >> I want to learn about subpoenas. >> All right. >> Uh before we get going though, can we uh. quickly thank the cities of Orlando and. Greater Orlando and Florida and New. Orleans and greater Louisiana. >> Yes. >> For two fun live shows. >> Yeah, those were a lot of fun. Um let's. see. We did Orlando on October 9th, I. think, and then the 10th for New. Orleans. Regardless, it was night. backtoback, two fun-filled nights, and. they were just both amazing shows.

>> Yeah. And when this comes out, I think. New York will have been over. So, thank. you, New York. >> Oh, yeah. Yeah. We We presume it's going. to have been a great time, that three. night run at the Bell House. >> They're always great there. >> And that's it, too. 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. >> Yeah. Can we go ahead and tease our uh. our January schedule or should we not? >> I think we can. Sure. >> All right. Well, we're hoping to be back. at Sketchfest again.

>> Mhm. >> And then what did we settle on? >> We I don't know if settling is the right. way to put it, but we decided Seattle. >> We're doing Seattle. >> Oh, we are? >> Yeah. And you normally for a January. swing we do Portland Seattle Sketchfest, >> 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. Um, no, sorry, the iHeart podcast awards. They don't care about us at all at the. radio awards.

>> No, we can't even get in that building. >> Right. Exactly. So, we said, "Okay, well, we got to we got to 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. So don't worry, Portland. We will be out there. >> Maybe maybe the coup. >> That's what that's the talk. That's the. chatter around town. >> But we have no dates confirmed yet, but. this just look for us again in the. Pacific Northwest at the beginning of. the year. >> That's a much better way to put it. >> Yeah.

>> So, do you want to talk about subpoenas? You got any other housekeeping to do? >> I don't think so. >> Um, >> subpoenas. Weird spelling. >> Well, yeah. So I looked up the word. subpoena is actually two words. It means. under penalty. >> and it it's typically the first two. words that were read in this rid of. subpoena. Um basically saying under. penalty of um. >> blah blah blah. >> Yeah. I was thinking all I could think. about was really dirty dark stuff.

>> Oh yeah. >> Yeah. So I just I let you fill in the. blah blah blah. But anyway, under. penalty of whatever, you need to do one. of two things. Uh, and there are two. types of subpoenas that everybody, you. know, everybody hears subpoena, you. think like law and order. Uh, maybe. visions of Central Park run through your. head because that's your only exposure. to Central Park is from Law and Order. >> 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. >> Yeah. That's it's not like it's new that.

Congress has just recently started. issuing subpoenas. It's new in the. conscious of America in this this age. this generation. I mean it's been going. on for a while but normally when people. think subpoenas until like basically. 2017 16 18 um not necessarily in that. order. um most people thought of courtroom. subpoenas and that is you know typically. the the subpoena most people are ever. going to come up against in their. lifetime. >> That's right. But you mentioned the two.

types. You want to break out your Latin. or shall I? >> You take the first, I'll take the. second. >> Oh, okay. The first one's easy. Uh, the. first one is subpoena, add. testificandem. >> Wow. Did you see that? You just made a. mouse appear and run out of the room. >> Uh, the next one. So, the so sorry. The. first one, the one you just said. >> Mhm. That means you got to come to. court. >> You just nailed it. Yeah. It says that. you have to come and testify and you.

might not be um 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. Um but basically it's saying. you have some information. You witnessed. an act. Um you overheard a conversation. The the um defendant confessed something. to you. We need you to come to court and. tell your story. And that's what that. first subpoena is saying to do. >> Yeah. and not necessarily court court, but it can be any kind of legal. authority. >> Yeah, it could be a deposition. It could.

be an arbitration. Um, but typically. it's the authority of a court of law to. basically say we're going to levy a fine. against you or we're going to arrest you. and put you in jail if you don't listen. That that's used to um to kind of. enforce subpoenas. >> That's right. >> So, the second one is the subpoena. deuces tikum. >> Hey, nice. >> Thank you. Um, 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, you have a. >> secret tapes.". >> Yeah. >> Or a computer hard drive. >> Yeah. >> Um, you know, something like that that. we want you to produce because we want. to use it as evidence. And there's a. really important point to put here. Like. a court is saying a court or an official. of the court or of the government is. saying we want you to do this because we. have this lawsuit going on and you have. something we need. But it's not.

necessarily the judge saying it. The. judge is signing off on it. It's really. a lawyer or of 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? >> And then the judge says, "Speak to my. clerk.". >> Mhm. >> And then the clerk of the usually the. clerk of the judge who's handling that. case. >> Mhm. >> Um. >> they say talk to the hand. >> Yeah. And they'll generally issue it on. uh on like official court letterhead and.

official documentation. It's not like. the judge is washing their hands of it. necessarily. >> No. No. I'm sure like if they do. something egregiously wrong, the judge. is going to hear about it and punish. them. >> That's right. And then it's served um. usually in person. Uh kind of, you know, handed to you like on the TV shows and. in the movies. >> Yeah. Either by a sheriff's deputy or a. process server. >> Yeah. But not always. It It depends on. uh if it's congressional. um or if it's, you know, civil regular.

Joemo stuff. >> Yeah. Well, yeah, for sure. But I think. even if it is regular civil stuff, you. can still go hire the sheriff's. department to serve papers to serve a. subpoena. >> Oh, for sure. I think the congressional. ones are not served by a sheriff. >> Oh, I see. Who do they use? >> I think it depends. It could uh I mean, the way congressional subpoenas work is. all sort of dependent on the individual. committee that's seeking that subpoena. Mhm. >> 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 uh grant or. request a subpoena, >> right? I've read some of them know that. it's a real downer to get a subpoena. Says some congressional committees use. that mascot from the 1984 Olympics, the. eagle, to come issue your papers to you. >> I don't remember that one. You don't. remember that eagle? >> No. >> Was this like a cartoon eagle from 1984?

>> Yeah. I mean, all I can I can't get past. the Atlanta Olympics mascot. That's why. I can't get back to 1984. >> Was it What's it or who's it? >> Oh, I don't even know. >> It was one of those two. What was that. thing? >> I don't know. >> It was a last last minute thing. >> What was the name? >> It was What's it or who's it? >> Was it? >> Yes. >> Yes. >> Oh, man. It was bad. I was out of town. I fled. >> You didn't miss anything? Uh, but I do. remember watching the opening uh,

whatever they're called, the opening. ceremonies. >> Opening ceremonies, >> right? >> And seeing the stainless steel pickup. trucks. >> driving around and just thinking, "Oh, boy.". >> Yeah. And I, for those of you who are. like, they've talked about this before. Yeah, we have. And we're still that. upset about it. >> We'll talk about it again in five more. years. >> We haven't forgotten. >> Yeah. Stainless steel pickup trucks. They haunt me. I have dreams about those. trucks. >> 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 they're served the paper, and. that is, can I ignore this thing? >> Do I have to do this? >> Right? 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 um they the. people who are issuing the subpoena or.

the the lawyer who's asking for the. subpoena say they want some sort of. proof that says you got that paper. So. they have to um there's like certain. rules and regulations to serve to. serving somebody with a subpoena. So. 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.

13year-old or 18-year-old. >> They'll stick their hands in their ears. and go la. >> Right. Exactly. They'll do a lot of. stuff to keep from being served. But. that's actually it will just delay being. served in the long run. You will still. there's other remedies they can use. they can mail it to your house, certified mail, and if the mail 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?" Um, they can actually post an ad.

in the local legal organ, the newspaper, and then that will be considered serving. you. So, either way, you're going to end. up being considered to have received the. subpoena eventually. And if you do, you. probably shouldn't ignore it. >> Yeah. I mean, it says here in this. article, which uh most of this is from. the House of Works article about. subpoenas, but it says, you know, it's a. lot easier if you just go, >> right, >> or produce the documents, but as we'll.

cover here in a lot of this. congressional oversight stuff, that is. not the route that people take generally. in government. >> Yeah. Yeah. And I thought it was a 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 what should. I do with this? Is this you know you. know there's a lot of questions that you. should have answered before you just act. on a subpoena. >> Yeah. And you know, when it comes to.

ignoring subpoenas, uh, and that's what. a lot of this will be about is, um, is. what's going on with our government, uh, right now and previously and what. happens if you defy Congress and is. there any accountability for that or can. you just sit on your hands say nope. But. there have been some very famous um, cases in the past, you know, 15 years or. so where subpoenas have been ignored. Uh. starting well not starting with but we. can start with uh Eric Holder, attorney.

general for Barack Obama. >> Yeah, that was a big one. >> That was part of the operation uh the. Fast and Furious. scandal. Scandal. >> Yeah, it was definitely a scandal. It um. it from what I remember it involved like. secret gun sales or else some guns were. like let out into the community to be. traced to see who they went to and one. of them ended up being used to murder an. ICE officer I believe. >> Well, Attorney General Eric Holder. refused uh under direction of Obama to.

uh answer that subpoena and he became. the first sitting cabinet member to be. voted in contempt of Congress. >> Oh, is that right? >> Yeah. And you know, you're like, well, what happens then? Well, three and a. half years later, a judge ruled um that. he uh did not have the right to defy. Congress. And by that time, there was a. new Congress and it was a moot point. That's a really big big thing to. remember is like a contempt of Congress.

vote where you are supposedly in trouble. for ignoring a subpoena only lasts as. long as that session of Congress. >> unless the next session of Congress. wants to pick it up. >> Yes. But then they have to hold another. vote. And the chances that that the um. 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, um going into recess, you you're. probably going to get away with it. And.

I mean, that's part for the course. It. wasn't just Eric Holder who got away. with it. Um Harriet Meyers, who was a. White House counsel, the George W. Bush, there was like a mass political firing. of US attorneys. >> Yeah. and um. >> 2008. >> Yep. 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 and jail time. And.

finally, I found some follow-up. It was. like nothing nothing happened. Absolutely nothing happened. There's no. legal ramifications. There were no. personal ramifications. There was. nothing happened whatsoever for to. Harriet Meyers 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 subpoena. >> And because of this, um, you remember. Representative Daryl Isa, uh, probably.

by name. he was uh he was involved in. trying to get Eric Holder, you know, in. the room and he was so mad he sponsored. or introed a bill to strengthen subpoena. enforcement power. >> and uh it died in the Senate. And before. we uh I think we're about to take a. break. Before we do that though, we. should mention that currently uh White. House counsel Don Mcan. >> um has refused to testify or refused to. uh answer his subpoena under direct. order of Trump. And um right now he's.

being sued by the House. >> as of August. And he he in particular. pres pro provides a um an unusual. situation because at least with Harriet. Meyers or with Joshua Bolton or with. Eric Holder when they were directed by. the president at the time not to um. submit to that subpoena from Congress, they were part of the president's staff. Don Mcan was instructed not to do not to. cooperate with the subpoena after 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 uh case law. that's been built over the centuries. that kind of establishes that. And I. say, Chuck, we take a break and then. we'll dive into that after this. >> case law.

One char. stuff you should know. >> stuff you should know. So, Chuck, there's something about. subpoenas, whether they're issued by. Congress or by a court of law. um when. you get them that a lot of people don't. realize you uh they're negotiable.

>> Yeah, >> that's one really big reason to hire a. lawyer is because um they it may be. overly broad. It may be kind of a. fishing expedition. It may put you at. risk to come forward and give this. testimony or to hand over these. documents. And if you'll if you hire a. lawyer and say, "Hey, these are the. things I'm worried about." they can go. and argue to the judge like, "Hey, how. about we just limit this subpoena to. these documents rather than everything. on my client's hard drive or it's really. a big hardship for my client to make it.

here. Um, and the $15 a day that the. court's paying him for coming to testify. isn't actually going to cover it. So, you know, can we can we negotiate a. higher fee or something like that?". There's a lot of stuff that can be done, but this is a tactic that's also used. with congressional um subpoenas too. where say like the executive branch will. go, I think that this is a little overly. broad, but maybe we could give you this. document. Will that satisfy you? >> And then they go, nope. >> Sometimes they say yes, though. And part.

of that negotiation comes out of this. subpoena process. It's a response to it. Um, but it none of it would have any. effect whatsoever if Congress didn't. have any redress for um for enforcing. its subpoenas if somebody ignores it. >> Yeah. I mean, technically there are. fines and jail time sort of looming, but. the more I read about this stuff, especially when it comes to. congressional oversight, the more it. became clear that none of that stuff. really happens. It's all just dangled.

out there as a means to negotiate. uh something with each other over a. pretty long period of time usually. >> For sure. Yeah. The Eric Holder thing. was it was like four years before he. finally handed over the file. Um and I. think Congress had already gone out of. session you said and it was basically. just the whole thing had died down which. I think is basically the the stalling. tactic that um people ignore subpoenas. for like that's why they're doing it. >> Yeah. So technically, if you defy.

Congress, the committee that issued that. subpoena. >> is going to vote to issue a citation, a. contempt citation, and then it's got to. go to the full chamber to vote on it. And if that goes through and it passes, which it has before, then there are. three three basic ways that you can. prosecute that charge, >> right? And each one is. >> worthless. >> Yeah, pretty much. like this is we would. never give official legal advice, first. of all, because we're not lawyers or.

even trained as lawyers. But from what I. can tell, there's just nothing happens. to you if you ignore a congressional. subpoena. But most people respond to it. because I feel like the further down the. um food chain you are, the more likely. Congress is to do something in. retaliation to you. >> Yeah. Well, let's let's go through the. three at least. >> Fine. if for no other reason than pure. folly. >> So if they uh if they vote and and that.

contempt citation goes through. >> uh it is then under the control of the. executive branch and you think oh great. the president or oh great the president. it's really neither it's the justice. department which is part of the. executive branch. It's up to them to. decide whether or not they're going to. prosecute uh criminally and they're. going to say no. they're going to say, and we'll talk a lot about executive. privilege coming up, but they'll usually. cite that um and decline to prosecute. Basically kind of saying, uh, you know.

what, we don't get involved in this. stuff. >> Right. So, so that is specifically when. it comes to subpoenaing something from. the White House, >> correct? >> Or the executive branch. Now, if the if. 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." 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 matter. >> Number two is uh the civil judgment, >> right? >> And that's when you need the courts to. basically enforce this going to court. and saying we need your help to enforce. this civil suit against somebody who. stiffed us, >> right? Like you know how you can go. arrest somebody and put them in jail? Can you do that on our behalf?

basically. >> But this is super slow, like turtlike. slow. >> Yeah. But I think the idea is that um. the the thought that maybe somewhere a. couple years down the line, there's. going to be a judgment against you where. you're going to have to pay $100,000 to. Congress or something like that or spend. like 12 months in jail. We'll get you to. to the table to negotiate, you know, what documents they actually want or. what testimony they want. >> Yeah. That's just leverage,

>> right? >> So, the third one is something that. isn't used anymore really. It's called. inherent contempt power. >> Mhm. >> Uh it was last used in 1935. And this is, you know, this is sort of. the jail thing. And while there is no. capital jail, they do have a holding. cell. >> Yeah. and like the sergeant-at-arms of. the Senate or the House, depending on. who's issuing the subpoena and who voted. to um to hold you in contempt, an armed. officer of of the Congress, will show up.

and say, "You're under arrest." Congress. says, "You're under arrest. You have to. come with me." um or as has been kind of. boo um bounced around lately by um. 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 $25,000 and. $250,000. I think a day actually for for ignoring. this kind of stuff which I I would guess.

that would get people moving if they. actually go through with that. Yeah, I. would think so. Hit them in the. pocketbook. >> Yeah. I mean, that hard that's And plus. it's the government, too. So, it's like, hey, you know, these tax credits you're. getting, we're 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. >> Yeah. >> I think. >> so. If it's not a congressional. subpoena, if it's just uh like we're. talking about a a regular court. subpoena, it all depends on what.

jurisdiction you're in and the presiding. judge that's uh on that case. >> Yes. But again, because you can be. arrested as a matter of routine course. of of a court, um you really should. respond at least to a subpoena or else, you know, the chances of something. happening to you from a court of law are. much higher than Congress, apparently. >> Sure. So, um, >> can we talk about case law? >> Yes, finally. We got all that boring. stuff out of the way.

>> Yeah, this first one is kind of. interesting. Um, and the way the. judiciary works in this country is just. super fascinating to me. The older I. get, the more I read about it, >> I'm not becoming a legal wonk by any. means. >> A legal legal, >> but I get it. Like, you know, I get it. that people are super into this kind of. thing. >> I hadn't realized you'd gotten into the. judiciary. >> Yeah. I think it's pretty fascinating. >> What got you into it? Just like news, following the news or something or. >> uh Yeah. And just sort of reading about.

a case like in this case from 1800. >> Mhm. >> And then you know precedent and what. that means, >> right? >> And when it when it shouldn't matter and. should matter. >> Like the one from 1800 you're talking. about is USV Cooper. >> Yeah. Thomas Cooper who was a a. scientist and an attorney and a uh a. thorn in the side of President John. Adams, >> right? >> In a big way. >> Yeah. So, in I think 1798, yeah, the US. passed the Sedition Act, which said that.

it's illegal to criticize the US. government. >> Yeah. >> Unfortunately, when Thomas Jefferson. came into office, he said, "We're going. to kind of do away with that and keep it. away forever as much as we can." Um, but. there was a guy named Thomas Cooper who. like you said was a thorn in the side of. uh John Adams and he was arrested and. prosecuted during a time when the. Sedition Act was still in effect and he. he lost his case. But the the way that. it relates to subpoenas and ignoring. subpoenas and specifically the executive.

branch ignoring subpoenas is that all. the way back in 1800 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 don't. really subpoena presidents. We've. decided.". >> Yeah. >> And that set 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, they don't. have to come. >> Right. But that same case said, but you. can subpoena someone from Congress. >> That's a big one, too. >> That was a big one. Um Cooper, it didn't. work out for Cooper. Like you said, he. was convicted. So none of that mattered. except for establishing this president. President President. >> You got it. In this case, you could say. it either way, >> I guess. So, so, uh, that moves us on to. 7 years later. Um, USV Burr, um, this.

is, uh, John Marshall, Chief Justice. John Marshall, uh, headed this one up. >> And basically, this had to deal with. President Thomas Jefferson. Um, saying, "Hey, they want you to come to uh, provide these documents." It was a a. doozies tikum, >> right? Duces duces. >> duces. >> duces tikum. >> and Jefferson was like hey here are some. of those documents uh that you want and. they're like but where are 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. >> Yeah the the executive branch is too. powerful and too or no too important. It's the only branch that's supposed to. be open 247 365. >> Yeah. and I just can't get away like I'm. my my work is too important to come be. part of this. >> And that gets that gets less and less um. able to prove these days I think. >> Yeah, for sure.

>> Like you could take off a half a day, >> right? You got a Blackberry, you can. definitely email, keep keep tabs on work. while you're gone. But yeah, so I. thought the same thing too that it does. does not hold water, but it does set a. precedent for the president like you. were saying too. Um and those two cases. basically say together the again the. president doesn't have to come be part. of this and um he executive privilege is. is I guess where this came from uh from. this particular case where it's saying. like no the president doesn't have to.

have anything to do with this and the. president's documents are the. president's business and can't be. subpoenaed because we're going to call. this executive privilege. >> Right? And there are five basically uh. five types generally of executive. privilege that uh have been used thus. far. >> Mhm. >> Uh one is presidential communications. >> Uh number two is the deliberative. process. >> Uh number three is attorney client. communications. Big one. >> Y. >> uh fourth one is law enforcement.

investigations. And the fifth one is. anything uh that's sensitive in terms of. military or national security or. diplomatic relations, that kind of. thing. And that's the one in particular. that um has been upheld over the years. is the idea that um like the the there. are secrets that the White House has. that 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. >> Yeah. Because obviously an executive. president is going to try and draw that. privilege as broadly as possible. >> Oh yeah, for sure. And that's that's. especially been the case ever since. Nixon onward at least where there's this. idea called um the unitary executive. theory which is basically like you know. these are separate branches of. government and the executive branch is. in charge of everything to do with the. executive branch. has n it's none of.

Congress's business and the um the. executive is basically this. extraordinarily powerful single person. and that's been um attempted to be. invoked and proved 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. >> and saying like no not only just the. president but the ent entire president's. staff and in fact the entire executive.

branch can ignore subpoenas from. Congress because Congress doesn't have. any authority over the executive branch. and that's kind of what we're witnessing. right now. And on the one hand well. there's really just one hand. The great. value of having an executive like a. almost a um well a unitary executive is. that if you're a vested interest or a. very powerful group um you've only got. one person to to change over to your. side rather than 500 of them. You know.

what I mean? >> Yeah. >> So it's it's very dangerous. It also. very much flies in the face of the three. branches of government and the checks. and balances that each one's supposed to. have over the other. >> Yes. Because part of part of Congress's. role is what's called congressional. oversight. >> Yep. >> That says we're responsible for making. sure you're not getting out of control. The president, the executive branch, has. veto power saying, "Congress, you guys. are nuts. This is this is no law that. should be passed. I'm going to say no to. this law." And then the judiciary has.

judicial review. they get to say this. law is unjust or this um executive. agency's action is uh illegal. Um and by. doing this, these three branches keep. one another from getting too strong. And. the unitary executive theory flies in. the face of that and says, "Nope, the. executive branch is more powerful than. all of them. The other two don't have. checks over them, and let's just see. what happens from here.". >> That's right. Should we talk about. Watergate? >> Yeah. >> So, uh everyone, we should do a full.

episode on Watergate. I think I've said. that before. >> I agree. >> But um everyone knows what happened. there. President Nixon uh was involved. in some hinky activities and. uh congressional committees. There was. one uh special prosecutor in particular. named Archabal Cox who said, "Wait a. minute. You've got these secret tapes. You've been taping people in the Oval. Office. Turn them over. Here's a. subpoena. We demand that you turn that. over along with some other stuff." and. Nixon said, "You demand.

>> and we want you to come here and testify. as well." And of course, Nixon was like, "No, I don't think that stuff's going to. happen." Um, here you go. Here are some. of these tapes. Just ignore all the. parts where it seems like it was he. heavily edited and sounds real funny. because someone who was just in the room. is no longer in the room and there are. nonsequiters all over the place. >> It's like that videotape of the guy who. got the high score in Donkey Kong, >> right? Yeah. you know what I mean? >> Um, but executive privilege was what uh.

what he claimed he was protected by. So. this went to the Supreme Court in 1974. with United States v. Nixon. >> and Chief Justice Berger's uh opinion. cited everything from Justice Marshall's. Marberry v. Madison to the one we just. talked about, United States v. >> Burr. Mhm. >> And basically, it's they're they're walking a fine line. there with the judiciary cuz they're. saying, "Listen, the president needs to. be confidential and protected when.

executing these duties, these. constitutional duties on the one hand, but on the other hand, uh, due process. of law is is an is an important thing, and that's what we're in charge of." So, they kind of ended up wanting to protect. each of the branches needs, it seems. like. >> Yeah. And they I think they did a very. good job. And the fact that it was. unanimous um I think Renquist was. involved with some of the people. involved. So he um recused himself from. voting, but it was unanimous 8 to zero.

vote saying nope, you got to hand the uh. the tapes over because we don't think. that you're just trying to protect um. like intelligence 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, you know, the the trials. of these guys who broke into the. Watergate. Um, so you got to hand over.

the tapes. And in doing so, you, like. you said, he cited um another case, Marberry v. Addison. And that's a really. really important case in here too, which. I think we should talk about starting. now. >> Well, I wanted to mention another quick. thing um before we dive into Marberry. Another case. >> uh USVA AT&T. This just basically laid. out. >> that the courts are only going to get. involved if everyone really tried in. good faith to work it out beforehand. So. like basically said we're we're the last.

stop here. right? >> Don't just go run into the Supreme Court. or the courts in general to figure this. stuff out for you. >> Right. Although I think the the. Constitution says that the Supreme Court. are the ones who are supposed to be. running the show when it comes to like a. a high enough official, a case regarding. a high enough official. >> Oh yeah. All All AT&T uh case said was. you have to really try to work it out. amongst yourself before it even gets to. us. >> Oh, gotcha. Okay. Yeah, I got you. I. see. I see what you're saying. Yep. Yep.

So, >> but good faith of course is broadly. defined too. So, right. >> So, in Marbury versus Madison, that one. basically said, hey, there's this one. component here. Yes. The the um we've. established that the legislative branch. um Congress can issue subpoenas and that. the executive branch can exert executive. privilege and say no to some subpoenas. under some cases. But um we're also. going to say in US v Nixon in 1974 that.

the court can say no, your right to. secrecy is is um overshadowed by a right. to due process in most cases. But the. the one that was that really says at the. center of this is the judiciary and that. the judiciary has a right to decide. cases where the legislative and. executive branches are in dispute is. this Marbury versus Madison case from I. think 1804. And it was from what I understand a. master stroke of um legal eagleness.

by by Justice John Marshall. >> Yeah. So is the long and short of that. one that that Secretary of State James. Madison, he was trying to withhold the. commission of William Marberry. Was that. the case? >> Yeah, because the outgoing Adams had. packed the courts with friendly judges. and the commissions had not all been. mailed out and and Madison was. withholding some. >> And they basically said, "Listen, man, you can't do this. Like it is your job. Uh you shall commission all the officers.

of the United States.". >> It's like right there in black and. white. and you lose. >> Right? So that was one part of it. But. what Marshall figured out and what made. this a master stroke of legal legalness. is that the um there was a something. called a uh a writ of mandemus which. basically says you have to do this which. had been granted to the Supreme Court in. um the like an act in 1789. Marshall said so yes um Madison has to.

give this over like this is just part of. his duties and he's following a law that. Congress made so he's subject to that. law as a minister of the government but. at the same time the rid of mandemus. power that the Supreme Court has been. given we're is unconstitutional we're. not in a position to issue a rid of. mandemus because under the constitution. we're not given that right and 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 um a 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. >> Yeah. which is I mean that's a lot of. what the Supreme Court decides is.

constitutionality. >> and it's it all comes from that 1804. case. >> landmark. >> legal eagle. >> Should we take another break? >> Sure, man. >> All right, we'll take another break and. talk a little bit about uh a little bit. more about Nixon and what some other. presidents have done when slapped with a. subpoena right after this. Learning. stuff with Joshua. and Charles. Stuff you should know.

>> Stuff you should know. >> So, we all know what happened to Nixon. Um the justice did rule that, hey dude, you got to comply with this deuce tectum. here and you got to turn over these. tapes. So Nixon uh turned over tapes. >> He did. And it all worked out in the. end. Everybody's like, "This is what you. were protecting. This is fine, man. Stay. president for a couple more terms." And.

he did. And the world was a better place. for it. >> That's right. Uh flash forward to uh to. Bill Clinton. >> That was okay. So he said, "Hey, listen, man. What goes on, >> that was much better. >> What happens in the Oval Office stays in. the Oval Office.". >> Mhm. >> Executive privilege. Um, and they're. like, "Even that stuff." And he said, "Well, you know, exe executive. privilege.". >> Hank Panky falls under executive. privilege.

>> So he said, "I have executive immunity. I have that privilege and um neither me. nor my aids have to respond to these. subpoenas.". >> Right? And then he fell into line. eventually. >> Yeah. New Gingrich got him into line. >> Well, yeah. And and largely because of. USV Nixon. Um they said, you know what? You can't stand by this broad executive. privilege, stand behind this wall, right, >> that you've built. Um you're going to. have to comply. And he did eventually,

>> right? Which is traditionally what. happens. like the Congress issues. subpoenas, the executive branch ignores. it, the um the Congress holds the. executive branch in contempt, and the. the judiciary comes in and almost always. says, "No, you're overexerting your. executive privilege. Do what they're. saying.". >> Yeah. Which, you know, that gives me. hope because in the past, president has. been set that due process wins out over. executive privilege kind of across the.

board, it seems like. But that that only. holds um as long as two things are. upheld. One that um the Supreme Court is. an independent body regardless of who. appointed the judges. >> And then two if the as long as the. executive branch recognizes the. authority of the Supreme Court. And. >> this is where we are starting like some. people can see far enough along this. horizon that hey this path we're heading.

down right now there's a point where we. could reach where they could be there. could be a Supreme Court decision that. says yes executive branch you have to. hand over these aids for testimony. they. have to come testify about um you know. Russian interference in the 2016. election or this call between the. president and the Ukrainian president um. and the executive branch still says no.

>> Yeah. >> And that is the point that everyone says. we have no idea what happens then. We. have no idea. 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 um the. the kind of unwritten rules of the.

Constitution? Well, there's lots of. written rules with Constitution, but. also like the the um unwritten rules and. procedures that kind of have have guided. all of this for so long. What happens. when those things just stop being. recognized as valid? What do you do? Well, I don't know because in the in the. past through our history, and this is on. both sides of the of the aisle, uh. Democrats and Republicans have always uh. not successfully, but they've always. tried to argue that courts should not.

get in these subpoena battles and should. not get involved with uh this uh. executive privilege claim. >> Right. And in particular, Trump's latest. um Trump's legal council's latest. position, which I think came out in. September. of this year, >> is it's a doozy. It basically takes and. here's here's something we need to. remember here. Like this is not brand. new with Donald Trump, right? Like if. you if you can't stand Donald Trump, this is this is his White House. His.

administration is building on stuff that. previous presidents have built on, both. Democrats and Republicans alike. Yeah, there has been a real push basically. since Nixon to to instill as much power. into the presidency and the executive. branch as possible. And this is a an. extreme version of that, but it's still. kind of following the same path. But. what they're what they're doing is more. aggressive than what previous. administrations have done. And they're. basically saying this. If you subpoena.

us, uh, the executive branch, if you, the Congress, subpoena one of our. people, right? >> Any of our people for any reason. whatsoever, >> the president can say, "No, do not do. not respond to that subpoena. Do not go. before Congress. Do not hand over those. documents. I'm the president. I'm. ordering you to." Um, Congress can issue. a a rid of contempt or find the person. in contempt, but that's it. 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 um the. judiciary can't be drafted or shouldn't. be drafted in to solve these disputes. um that's all it will remain is an inter. branch dispute and and the Supreme Court. really has no purview in deciding these. cases.". >> Yeah. And when you have that, then that. means that the executive branch has been. removed from the oversight of law. It.

becomes above the law. The law no longer. applies to it. And so whatever the. president wants to do, whatever the. president directs um 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 argument is setting us up for. >> Yeah. I mean, this is what the Justice. Department, there was a great article uh. in the Washington Post by Harry Litman. called the Justice Department's.

outlandish and arrogant position on. congressional subpoenas. Uh and this is. from that article. It said, "According. to the Justice Department, there is no. constitutional or statutory basis for a. congressional committee to try to. enforce a subpoenas in the federal. courts where the executive branch has. decided not to do so." Right. So. basically, yeah, they said no and so. they said no. >> And all of this arose from an opinion um. regarding Trump's tax returns, I. believe. >> Yeah. That's sort of where the whole.

thing got started. >> Yeah. Where the Treasury Secretary. Steven Minutian 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? What can you do?" And that's that's. the that's the big question now. >> Well, and it makes you wonder what would. have happened if Daryl Isa's uh bill had. gone through that makes um subpoenas. super enforceable, >> right? >> Because, you know, we've seen it on.

again on both sides of the aisle where. one uh one political party will get mad. and and vote something in that will come. back to sting them later on, >> right? >> On the hind end, >> it is. But also, you also can't help but. wonder like will like is is a. Republicans. um loyalty to Congress greater than the. Republicans loyalty to the executive. branch. Like there's it's like, you.

know, in any restaurant there's tension. between the white staff and the kitchen. staff, but they're all working at the. same restaurant. They're all trying to. do the same thing, which is get. highquality, nourishing meals out to the. patrons who are citizens like you and. me, right? >> But there's still tension. You're not. 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. >> That's right. >> Well, what happens? >> At the end of the day, everyone just. goes behind the restaurant and smokes a.

joint by the dumpster. You know, maybe. that would make our our Congress or our. government work more efficiently if if. the executive branch and the legislative. branch and the judicial branch all got. together and and burned a doobie. together there. >> by the grease trap. >> Right. Exactly. I don't even remember. what my analogy was was meant to assert, but but we it's fine. But we um like the. we are witnessing some historical stuff. right now that that is not is not normal. at all. I mean like from Watergate stuff.

and that I'm not even relating to. impeachment proceedings. I'm just saying. like this level of ignoring. congressional subpoenas may be. unprecedented and if not then the. closest historical precedent we have is. the Watergate scandal. >> Yeah. >> But I think Congress's one recourse to. say that's fine. That's fine. Minutian, you just ignore us. We're going over. here as Congress and we are altering. this um this our ability to jail people. to say, "No, actually, we can find you.

$250,000 a day and we will do it." That. that could be the leverage that gets. people to actually comply with these. subpoenas, but we'll find out because if. Congress has to actually pass a law to. do that, the president has veto power. over that. Well, and there are also all. sorts of other things have nothing to do. with this that uh Congress uses as. leverage and or or negotiation tactics. like, "Hey, do you want us to push. through some of these uh appointees or. should we just keep stalling forever?".

>> Right? >> Um all kinds of that stuff is on the. table. But when you have a president. that comes out in uh January and says, "Uh, you know what? I don't mind. Stall. all you want. I like the term acting.". Um because that gives me more leeway. >> Yeah. Then all of a sudden that's not. leverage anymore. >> You got anything else? >> No. I'm very curious to see what happens. with this man case. Probably nothing. >> I am too. Will it be the crumbling of. our democracy? Who knows? We'll find out. in a few years. Um if you want to know. more about subpoenas, we'll just go look.

it up. And if you get a subpoena. yourself, get a lawyer. Don't be stupid. Uh and since I said don't be stupid, friends, it's time for listener mail. Uh, I'm going to This is about uh. Obama's. um. healthcare. I got a bunch of stuff about this. I. didn't realize I made a prediction. >> Oh, okay. Oh, yeah. Yeah. Yeah. >> This one's kind of been sitting in the. uh in the coffers. >> Okay. >> Uh guys, about 15 months ago, I started. my journey through the Stuff You Should. Know Archives. I've been on a steady.

campaign about 12 to 16 episodes a week. >> That's healthy. >> Wow. Uh, why I'm writing though, 10. years ago, Chuck made a bold prediction. In the rumors, myths, and truths behind. Obama's healthcare plan episodes, didn't. we do like four of those? >> Um, we did. Yeah, I think we did four. You're right. >> But this one was specifically about that. episode. Uh, Chuck, I said, "Call me in. 10 years if there are no more private. insurance companies." Cuz that was one. of the big knocks on it. It's like, "This is going to do away with private.

insurance. >> and uh, I will buy you a beer." tragic. >> Um, Chuck legitimately said, "I'm on. record." And he extended the bet to. anyone out there. Now, that statement. was more of a gentleman's bet than a. legal promise. However, uh, that is more. binding in my opinion. Nonetheless, I. would like to congratulate you, Chuck. I. was getting worried there for a second. on the expiration of that term and that. promisory statement. That could have. been a pretty pricey liability and. things turned out a little differently. a million beers, Chuck. Every single one.

of our listeners would have written in. and asked for it. >> I know that is uh from Jack Simmons. >> Nice going, Jack. And welcome to the. club. We're glad you found us and even. more so that you like us. So, we'll do. our best to keep it up for you and. everybody else. >> That email's a couple of months old. though. He's probably forgotten about us. already. >> That's right. He's moved on to Podsave. America. >> That's right. Uh well, if you want to. get in touch with us like Jack did, uh. you can go on to stuffyounow.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 stuffodcast@ iheartradio.com. [Music]. Stuff You Should Know is a production of. iHeart Radio. For more podcasts, iMheart. Radio, visit the iHeart Radio app, Apple. Podcasts, or wherever you listen to your. favorite shows. [Music].