by Michael C. Dorf
In philosophy, law, and other disciplines in which hypothetical examples play an important function as "intuition pumps," a familiar argument cautions against concluding too much from so-called marginal cases. You might think it permissible for people starving on a mountainside awaiting rescue to draw straws to determine whom to kill and eat, but it does not follow that you think cannibalism is morally permissible under ordinary circumstances. Or you might think an intuition pump so outlandish and unlikely--e.g., would you kill baby Hitler?--that it is simply not worth considering.
We are unlucky enough to live in a time when many questions that could be dismissed in the past as outlandishly unlikely now routinely arise due to our narcissistic norm-breaker of a president. Thus, whereas in the past we would not have worried about how to fortify our institutions against, say, a president who loses an election but refuses to accept defeat, now we must grapple with that scenario as a genuine possibility.
That particular issue has been discussed on this blog at length by Prof. Buchanan (e.g., here with links to prior essays), so today I want to raise a different question that the Trump presidency has put on the agenda: How broad should access to presidential conversations with foreign leaders and others be?
Let us begin with how we might think about the issue during a normal presidency (of either major party). We can assume that however controversial a president's policies, the president's aims in conversation with foreign leaders usually aim at what the president regards as the best interests of the United States. To be sure, even before Trump, we had instances of presidents using the official tools of government to attack political rivals and perceived enemies (Nixon); we also had instances of people acting in the president's name to collude with foreign powers to pursue unlawful aims (Iran-Contra, about which Reagan pleaded ignorance, but whether that was because he was truly out of the loop, directed wrongdoing but didn't remember doing so due to the beginning of dementia, or simply lied is not entirely clear). We can think of Trump's solicitation of assistance in finding dirt on Joe Biden from Ukrainian President Volodymyr Zelensky as combining Nixonian domestic and Reagan/Ollie-Northian foreign chicanery.
These episodes indicate that there is always a risk that even a normal president (here treating Nixon and Reagan as normal, which they were, compared to Trump) will do something untoward or illegal and that therefore the public and Congress need mechanisms to surveil the president and to hold the president accountable. At the same time, however, most presidents most of the time can be presumed to be doing the public's business, which sometimes requires confidentiality.
Some discussions with foreign leaders, our own national security experts, and others require secrecy to protect sources and methods of intelligence gathering or simply for the purpose of carrying out diplomacy. Negotiations with the Taliban--recently scuttled by the Taliban's continued acts of terrorism and Trump's acts of Twitterism--are an instructive example of the last category. Talking to one's enemies is fraught. Tentative concessions, if revealed before there is a full agreement in place, can lead various constituents to take measures that prevent such an agreement, where a full deal might have succeeded.
This phenomenon is simply a high-stakes diplomatic version of a fairly routine occurrence in the business world. Let's say you run a high-tech firm. You want to recruit a software engineer from a rival firm. She is willing to interview with your firm, so long as the meeting is kept secret, because if she ends up not receiving a job offer she doesn't want her current employer to realize she was thinking of leaving. Diplomacy frequently carries similar risks and thus frequently requires secrecy.
Even internal deliberations sometimes require secrecy. Suppose a normal president is considering backing a pending bill that would raise taxes as part of a package of infrastructure spending. Maybe the tax increase makes the president's support a non-starter, but maybe it doesn't. However, if word leaks out that the president is considering supporting the bill, then the president could end up paying a political price without even getting the bill. A system of complete transparency will lead to the consideration of fewer bold or controversial programs, some of which have merit. For this sort of reason, the Supreme Court in US v. Nixon said that, with an appropriate particularized showing, a president can claim executive privilege.
Thinking about all of the ways in which a president can act improperly and also about all of the ways in which there can be a legitimate need for confidentiality, it should be apparent that there is nothing special about presidential phone calls with foreign leaders or anyone else. The president heads an extraordinarily complex enterprise (the US government). Even a highly competent president cannot possibly do the job without the constant support of a team of experts. A phone call with a foreign leader will require a translator, State Department support, national security support, and more. Even a domestic policy discussion will often involve a Cabinet-level official, an under-Secretary, support staff from the relevant agency, support staff from the White House political shop, and more. Accordingly, there will typically be at least half a dozen and often many more witnesses to just about all presidential conversations, even if they are considered highly confidential.
The Nixon case recognized executive privilege but it did not allow the president to insist on the privilege simply via a naked assertion; the Court required a particularized showing instead. Similar principles apply to material claimed to be confidential for various purposes under a variety of statutes (such as the Freedom of Information Act and the Presidential Records Act). These legal principles point the way to a general solution: Presidents can classify their conversations on national security grounds or require confidentiality on executive privilege grounds, but such assertions can be tested by neutral third parties and weighed against competing interests in accountability.
In Nixon there was a pending criminal case, so the presiding judge was the obvious arbiter of Nixon's claim of privilege. One might think that in circumstances in which Congress seeks information from a president, Congress or a committee thereof would be the arbiter of a president's claims. However, such a regime is likely to be leakier than one in which a single judge evaluates a president's claims for confidentiality in camera. In addition, although Trump's protests about "presidential harassment" are generally preposterous, a congressional committee in the hands of a president's political rivals might be thought a suboptimal choice for adjudicating the president's confidentiality claims.
Thus, if I were writing on a clean slate, I would favor a much more active role for the federal judiciary in evaluating presidential confidentiality claims. Our federal courts, citing policies linked to the political question doctrine or the doctrine itself, typically try to avoid that role, although extreme stonewalling of the sort we have been seeing by Trump and his allies will draw the courts in. Whether House Democrats need to turn to the courts in the current impeachment inquiry remains to be seen. Some of the people from whom the House will want to hear (e.g., Rudy Giuliani) will not likely testify without White House permission, thus perhaps necessitating a court battle.
Given how much of the case against Trump relies on what are now very public documents, the House might not need to call any witnesses that Trump wants to remain silent. If the House does attempt to call witnesses and the White House stonewalls without a strong particularized showing--whether to a judge or to the House itself--it would be fair for the House to draw an adverse inference from the putative witness's failure to testify.