Selects: What's the deal with subpoenas?

25:53Go into court and saying, we need your help to enforce this civil suit against somebody who's 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 turtle-like slow. Yeah, 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$100 ,000 to Congress or something like that or spend like 12 months in jail will get you to the table to negotiate what documents they actually want or what testimony they want.

26:32Yes, just leverage. Right. So the third one is something that isn't used anymore, really. It's called Inherent Contempt Power. 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 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 bounced around lately by 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.

27:24Something more on the order of, I think, between$25 ,000 and$250 ,000. I think a day, actually, for ignoring this kind of stuff. which 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? 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 this is where they could actually do something. Yeah. I think. So if it's not a congressional subpoena, if it's just like we're talking about a regular court subpoena, It all depends on what jurisdiction you're in and the presiding judge that's on that case.

28:09Yes. 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 the chances of something happening to you from a court of law are much higher than Congress apparently. Sure. 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. 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 eagle? But I get it. Like, you know, I get it that people are super into this kind of thing.

28:52I 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? Uh, yeah. And just sort of reading about a case, like in this case, from 1800. And then, you know, precedent and what that means. Right. And 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 scientist and an attorney and a thorn in the side of President John Adams. Right. In a big way. Yeah. So in, I think, 1798, yeah, the U.S. passed the Sedition Act, which said that it's illegal to criticize the U.S.

29:36government. 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. 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. But the way that it relates to subpoenas and ignoring subpoenas, and specifically the executive branch ignoring subpoenas, is that all the way back in 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.

30:19and 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. It didn't work out for Cooper, like you said. He was convicted. So none of that mattered except for establishing this precedent. Precedent? Precedent. You got it. In this case, you could say it either way.

30:56I guess so. So that moves us on to seven years later, U.S. v. Burr. This is John Marshall, Chief Justice John Marshall, headed this one up. And basically this had to deal with President Thomas Jefferson saying, saying, hey, they want you to come to provide these documents. It was a Ducey's Tecum. Right. Ducey's? Ducey's? Ducey's. Ducey's Tecum. And Jefferson was like, hey, here are some of those documents that you want. And they were 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've got to be presidenting.

31:41Yeah, the executive branch is too powerful and too, or no, too important. It's the only branch that's supposed to be open 24-7, 365. Yeah. And I just can't get away. Like my work is too important to come be part of this. And that gets less and less able to prove these days, I think. Yeah, for sure. Like you could take off a half a day. Right. You've got a BlackBerry. You can definitely email, keep tabs on work while you're gone. But yeah, I thought the same thing too, that it does not hold water. But it does set a precedent for the president, like you were saying, too. And those two cases basically say together that, again, the president doesn't have to come be part of this.

32:25And executive privilege is, I guess, where this came from, 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, 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.

33:04And the fifth one is anything 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 has been upheld over the years is the idea that like 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.

33:46Oh, yeah, for sure. 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. It's none of Congress's business. and the executive is basically this extraordinarily powerful single person. And that's been 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 in saying like, no, not only just the president, but the 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.

34:40And 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 almost a, well, a unitary executive is that if you're a vested interest or a very powerful group, you've only got one person to change over to your side rather than 500 of them. You know what I mean? Yeah. So 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 Congress's role is what's called congressional oversight.

35:19Yep. 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. 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 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 all of them. The other two don't have checks over them.

35:56And let's just see what happens from here. That's right. Should we talk about Watergate? Yeah. So everyone – we should do a full episode on Watergate. I think I've said that before. I agree. But 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. 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?

36:34And 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 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. It's like that videotape of the guy who got the high score in Donkey Kong. Right. Yeah. You know what I mean? But executive privilege was what he claimed he was protected by. So this went to the Supreme Court in 1974 with United States v.

37:13Nixon. And Chief Justice Berger's opinion cited everything from Justice Marshall's Marbury v. Madison to the one we just talked about, United States v. Burr. And basically, they're walking a fine line there with the judiciary because they're saying, listen, the president needs to be confidential and protected when executing these duties, these constitutional duties on the one hand. But on the other hand, 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, it seems like. Yeah, and I think they did a very good job.

37:53And 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, nope, you got to hand the tapes over because we don't think that you're just trying to protect 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 trials of these guys who broke into the Watergate.

38:33So you got 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. Well, I wanted to mention another quick thing before we dive into Marbury. Another case, US v. 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 the last stop here. Don't just go run into the Supreme Court or the courts in general to figure this stuff out for you.

39:11Right. 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, yeah. All AT &T case said was you have to really try to work it out amongst yourself before it even gets to us. Oh, gotcha. OK. Yeah, I gotcha. I see. I see what you're saying. Yep. Yep. So good faith, of course, is broadly defined, too. So in Marbury versus Madison, that one basically said, hey, there's this one component here. Yes, we've established that the legislative branch, Congress, can issue subpoenas and that the executive branch can exert executive privilege and say no to some subpoenas under some cases.

39:58But we're also going to say in U.S. v. Nixon in 1974 that the court can say, no, your right to secrecy is overshadowed by a right to due process in most cases. But the one 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 masterstroke of legal eagleness by Justice John Marshall. Yeah. So it's the long and short of that one that Secretary of State James Madison, he was trying to withhold the commission of William Marbury.

40:48Was that the case? Yeah, because the outgoing Adams had packed the courts with friendly judges. Right. The commissions had not all been mailed out, and Madison was withholding some. 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, so that was one part of it. But what Marshall figured out and what made this a masterstroke of legal eagleness is that there was something called a writ of mandamus, which basically says you have to do this, which had been granted to the Supreme Court in like an act in 1789.

41:32Marshall said, so yes, 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 writ of mandamus power that the Supreme Court has been given is unconstitutional. We're not in a position to issue a writ of mandamus 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.

42:12So he did it by taking power away from the Supreme Court. But in doing so, he gave the Supreme Court 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 all comes from that 1804 case. Landmark. Legal, legal. Should we take another break? Sure, 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 subpoena right after this.

43:02Hi, I'm Dr. Priyanka Wally. And I'm Hurricane DeBowlo. It's a new year. And on the podcast Health Stuff, we're resetting the way we talk about our health. Which means being honest about what we know, what we don't know, and how messy it can all be. I like to sleep in late and sleep early. Is there a chronotype for that or am I just depressed? We talk to experts who share real experiences and insight. You just really need to find where it is that you can have an impact in your own life and just start doing that. We break down the topics you want to know more about. sleep, stress, mental health, and how the world around us affects our overall health.

43:41We talk about all the ways to keep your body and mind, inside and out, healthy. We human beings, all we want is connection. We just want to connect with each other. Health stuff is about learning, laughing, and feeling a little less alone. Listen on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts. Hey there, this is Dr. Jesse Mills, director of the Men's Clinic at UCLA Health and host of the Mailroom Podcast. Each January, guys everywhere make the same resolutions. Get stronger, work harder, fix what's broken. But what if the real work isn't physical at all? To kick off the new year, I sat down with Dr.

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45:38So we all know what happened to Nixon. What? The justice did rule that, hey, dude, you got to comply with this Ducey's tectum here. And you got to turn over these tapes. So Nixon turned over tapes. He did, and it all worked out in the end. Everybody was 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. Flash forward to Bill Clinton. That was okay. So he said, hey, listen, man, what goes on in this? That was much better. What happens in the Oval Office stays in the Oval Office. Executive privilege.

46:20They're like, even that stuff? And he said, well, you know, it's executive privilege. Hanky-panky falls under executive privilege. So he said, I have executive immunity. I have that privilege. And neither me nor my aides have to respond to these subpoenas. Right. And then he fell into line eventually. Yeah. Newt Gingrich got him into line. Well, yeah, and largely because of U.S. v. Nixon. They said, you know what? You can't stand by this broad executive privilege, stand behind this wall that you've built. You're going to have to comply. And he did eventually. Right, which is traditionally what happens.

47:04Like the Congress issues subpoenas. The executive branch ignores it. The Congress holds the executive branch in contempt. and 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 precedent has been set that due process wins out over executive privilege kind of across the board, it seems like. But that 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, as long as the executive branch recognizes the authority of the Supreme Court.

47:52Right. 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 aides 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.

48:37Do 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 we are with testing out this unitary executive theory. How far can you kick the kind of unwritten rules of the Constitution, well, there's lots of written rules of the Constitution, but also like the unwritten rules and procedures that kind of 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 past through our history, and this is on both sides of the aisle, Democrats and Republicans have always, not successfully, but they've always tried to argue that courts should not get in these subpoena battles and should not get involved with this executive privilege claim.

49:36Right. And in particular, Trump's latest Trump's legal counsel'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 can't stand Donald Trump, 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 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.

50:23But what they're doing is more aggressive than what previous administrations have done. And they're basically saying this. If you subpoena us, the executive branch, if you, the Congress, subpoena one of our people, any of our people for any reason whatsoever, the president can say, no, do not 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 writ 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 interbranch dispute between the legislative branch and the executive branch.

51:04And because the judiciary can't be drafted or shouldn't be drafted in to solve these disputes, that's all that will remain is an interbranch dispute. 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 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.

51:50That's what the latest argument is setting us up for. Yeah, I mean this is what the Justice Department – there was a great article in the Washington Post by Harry Lippman 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 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 regarding Trump's tax returns, I believe.

52:28Yeah, that's sort of where the whole thing got started. Yeah, where the Treasury Secretary Steven Mnuchin said, no, we're not doing that. And Congress said, well, we're holding you in contempt. And then the 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 the big question now. Well, and it makes you wonder what would have happened if Daryl Ice'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 political party will get mad and vote something in that will come back to sting them later on.

53:11Right. On the hind end. It is, but also you also can't help but wonder, like, will, like, is a Republican's loyalty to Congress greater than the Republican's loyalty to the executive branch? Like there's, it's like, you know, in any restaurant, there's tension between the wait 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 high quality 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.

53:49But we benefit from that tension. We, the patrons of this restaurant that we call America. That's right. Well, what happens with the day, everyone just goes behind. The restaurant and smokes a joint by the dumpster. 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 doobie together. By the grease trap. Right, exactly. I don't even remember what my analogy was meant to assert. It's fine. But we are witnessing some historical stuff right now that is not normal at all.

54:27I mean, like from Watergate stuff. And 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 is one recourse to say, that's fine. That's fine, Mnuchin. 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 fine you$250 ,000 a day and we will do it. That could be the leverage that gets people to actually comply with these subpoenas.

55:09But 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 that 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 mind, stall all you want. I like the term acting because that gives me more leeway. Yeah. Then all of a sudden that's not leverage anymore.

55:47You got anything else? No, very curious to see what happens with this McGahn case. Probably nothing. I am too. Will it be the crumbling of our democracy? Who knows? We'll find out in a few years. 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. And since I said don't be stupid, friends, it's time for Listener Mail. I'm going to—this is about Obama's health care. 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 coffers.

56:24Okay. 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. Why I'm writing, though, 10 years ago, Chuck made a bold prediction in the rumors, myths, and truths behind Obama's health care plan episodes. Didn't we do like four of those? Yeah, I think we did four. You're right. But this one was specifically about that episode. Chuck, I said, call me in 10 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.

57:02And I'll buy you a beer. 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, that is more binding, in my opinion. And nonetheless, I would like to congratulate you, Chuck. I was getting worried there for a second. On the expiration of that term and that promissory statement, that could have been a pretty pricey liability that things turned out 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 from Jack Simmons.

57:37Nice 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 Pod Save America. That's right. Well, if you want to get in touch with us like Jack did, you can go on to stuffyoushouldknow.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 stuffpodcasts at iheartradio.com. Stuff You Should Know is a production of iHeartRadio.

58:13For more podcasts from iHeartRadio, visit the iHeartRadio app, Apple Podcasts, or wherever you listen to your favorite shows.

58:43Is there a chronotype for that or am I just depressed? Health stuff is about learning, laughing and feeling a little less alone. Listen on the iHeartRadio app, Apple Podcasts or wherever you get your podcasts. This is Dr. Jesse Mills, host of the Mailroom podcast. Each January, men promise to get stronger, work harder and fix what's broken. But what if the real work isn't physical at all? I sat down with psychologist Dr. Steve Poulter to unpack shame, anxiety and the emotional pain men were never taught how to name. Part of the way through the valley of despair is realizing this has happened and you have to make a choice whether you're going to stay in it or move forward.

59:20Our two-part conversation is available now. Listen to the mailroom on the iHeartRadio app, Apple Podcasts, or wherever you get your favorite shows. Hey, it's Joel and Matt from How To Money. If your New Year's resolution is to finally get your finances in shape, we've got your back. Prices, they're still high and the economy is all over the place. But 2026 is the year for you to get intentional and make real progress. That's right. Yeah. Each week we break down what's happening with your money, the most important issues to focus on, and the small moves that make a big difference. Kick off the year with confidence.

59:54Listen to How to Money on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts. This is an iHeart Podcast. Guaranteed human.