美国国家公共电台 NPR--The probe into Trump's seized documents raises executive privilege questions

The probe into Trump¹'s seized documents raises executive privilege questions

Transcript²

NPR's A Martinez talks to Cardozo Law School professor of law Jessica Roth, who analyzes³ a federal judge's decision to grant former President Donald Trump's request for a special master.

AMART?NEZ, HOST:

The investigation⁴ into the documents seized from Mar-a-Lago is unlike any other, and the legal question of executive privilege is at the center of it. Here to help us understand the ruling by Judge Cannon⁵, we turn to Jessica Roth, professor at law, Yeshiva University. Professor, so let's start off with the purpose for executive privilege. What is it?

JESSICA ROTH: The purpose of the executive privilege is to protect the confidential⁶ communications within the executive branch and to allow the president to receive candid⁷ advice from their advisers⁸ to facilitate better deliberations by being assured that those communications will generally be protected from disclosure to outsiders. That's the core of the executive privilege.

MART?NEZ: OK. So how is Judge Cannon then explaining how it applies in this case?

ROTH: Well, she really hasn't. I mean, that's part of what is so unusual about the opinion, which is that there isn't really a cogent⁹ argument articulated for how executive privilege would apply here. She essentially¹⁰ posits¹¹ that there may be, among the documents that were seized, some that would contain confidential presidential communications. But by no means is it clear that any judge who ultimately - or any special master who ultimately reviews these documents would rule that there was a privilege that would apply here.

And importantly, even if there is an arguable basis for asserting executive privilege, the executive privilege, when it exists, is not absolute. And so it's always weighed by courts against the interests served by disclosing the information to the authorities who are seeking it here. And again, that's part of what makes this ruling so surprising, which is one of the grounds for granting an injunction, which the court did here to bar the Justice Department from continuing its review of the seized documents, is that you need to show a likelihood of success on the merits. And given the case law on executive privilege, it just seems extremely unlikely that any such claim would succeed here.

MART?NEZ: OK. So the judge ruled that former President Trump does have some executive privileges. Doesn't really explain - goes in-depth on why or how. But how does it apply then to documents that are not covered in this case, the documents seized by attorney-client privileges, the ones labeled top secret or highly classified?

ROTH: Well, just to be clear, it's not - she hasn't ruled that he has an executive privilege in these documents. She's just willing to entertain the notion that he might.

MART?NEZ: OK.

ROTH: But with respect to other materials that don't fall within communications within the executive branch, that would be a separate determination as to whether attorney-client privilege would apply. The Department of Justice already has appointed a filter team that's been reviewing those documents to see whether or not attorney-client privilege applies. The judge didn't really discuss that aspect of the special master's work here and what would be the basis for it. But whoever ultimately reviews these documents, whether it's a special master or this judge herself or the magistrate¹² judge, will be looking to see whether there are confidential communications between former President Trump and attorneys that would be part of the provision of legal advice.

MART?NEZ: And in yesterday's ruling, Judge Cannon cited a Supreme¹³ Court ruling from earlier this year related to the January 6 investigation documents. Can you dissect¹⁴ that part of her argument?

ROTH: Yeah, she cited that opinion to push back against the Department of Justice's assertion that it was clear that a former president could not assert executive privilege. She said she didn't think the case law was actually so clear in that D.C. Circuit opinion that involved the inquiry¹⁵ by the January 6 committee. The D.C. Circuit rejected former President Trump's assertion of executive privilege, and it suggested that former presidents had a very diminished interest in or ability to assert executive privilege. But it ultimately issued its ruling, saying that under any test, whether it was a sitting president or a former president, it would have ruled against the claim of executive privilege.

That case - the Supreme Court was asked to take it. It did not take the case, but it did issue an order explaining that it was not taking the case, and it allowed the decision to stand. But in that decision, the court took pains to point out that any discussion by the D.C. Circuit in its ruling of the significance of Trump's status as a former president was not precedential because it wasn't necessary to the decision. And Justice Kavanaugh wrote separately to make clear that he thought former presidents could, in some circumstances, assert executive privilege. Justice Thomas voted for the court to take that case.

So I think it's fair to say that the status of a former president's ability to assert executive privilege in some circumstances is unsettled and that at least some members of the U.S. Supreme Court are friendly to the idea that a former president retains the ability, at least in some circumstances, to assert executive privilege without reaching the question of exactly when it would apply - would it apply to these particular facts?

MART?NEZ: What's this investigation from the Justice Department going to look like, at least for the time being?

ROTH: Well, the Justice Department has some very difficult decisions to make in the short term. They have to do it quickly. They have to decide whether they're going to appeal and consider the - sort of the timing¹⁶ aspects of this. Could they get a decision from an appellate court quicker than they could complete the review by the special master? And they also then have to consider whether they're willing to let this decision stand. Currently, it doesn't have any precedential value for other courts. But if they do appeal, they risk getting an unfavorable ruling from an even higher court that would have precedential value.

But in the meantime, they also have to consider the impact on their ongoing¹⁷ criminal investigation. They are permitted to continue to develop evidence and interview witnesses so long as they're not doing so based on the documents that were seized at Mar-a-Lago. That's going to hamper¹⁸ them to a certain extent, and it's also going to impose a burden in that they're going to have to be confident that if they're ever required to establish that they didn't rely on these documents in developing future evidence, that they'll be able to do so.

MART?NEZ: How solid is the Justice Department's legal footing should they decide to appeal the ruling? Because they've said that executive privilege should not apply in this case.

ROTH: I think their legal footing is extremely strong. It's strong, essentially, all the way through. I mean, the judge really went out of her way to be solicitous¹⁹ of former President Trump's arguments, from asserting jurisdiction²⁰ over the case to recognizing that he could - or entertaining that he could have a claim of executive privilege here to granting the injunction temporarily. So there are multiple bases for appeal. I think, again, the question here is going to be whether or not the Justice Department wants to proceed in that - with that route, given that it could take longer to complete any appeal and also given the risks, as I mentioned, of getting an opinion from a higher court that even though, based on the precedents²¹, should not affirm what the district court did here, there is that risk.

MART?NEZ: So to recap, a Trump-appointed judge makes a ruling for Trump, in part citing a remark by a Trump-appointed Supreme Court justice from a different case. Professor, do you have any questions about the neutrality of the situation?

ROTH: Well, I think throughout this opinion and these proceedings²², what we see is a judge going out of her way to afford former President Trump a consideration that would not be afforded, or has never been afforded to my knowledge, to any other target of an investigation.

MART?NEZ: Jessica Roth is a professor of law at Yeshiva University. Professor, thanks.

ROTH: Thank you.

(SOUNDBITE OF THRUPENCE'S "FOREST ON THE SUN")

1 trump   

n.王牌，法宝；v.打出王牌，吹喇叭

参考例句：

• He was never able to trump up the courage to have a showdown.他始终鼓不起勇气摊牌。
• The coach saved his star player for a trump card.教练保留他的明星选手，作为他的王牌。

2 transcript   

n.抄本，誊本，副本，肄业证书

参考例句：

• A transcript of the tapes was presented as evidence in court.一份录音带的文字本作为证据被呈交法庭。
• They wouldn't let me have a transcript of the interview.他们拒绝给我一份采访的文字整理稿。

3 analyzes   

v.分析( analyze的第三人称单数 )；分解；解释；对…进行心理分析

参考例句：

• This approach analyzes management by studying experience usually through cases. 这个学派通常从实例获得经验，用以分析管理。 来自辞典例句
• The econometrician analyzes statistical data. 经济计量学者要分析统计材料。 来自辞典例句

4 investigation   

n.调查，调查研究

参考例句：

• In an investigation,a new fact became known, which told against him.在调查中新发现了一件对他不利的事实。
• He drew the conclusion by building on his own investigation.他根据自己的调查研究作出结论。

5 cannon   

n.大炮，火炮；飞机上的机关炮

参考例句：

• The soldiers fired the cannon.士兵们开炮。
• The cannon thundered in the hills.大炮在山间轰鸣。

6 confidential   

adj.秘（机）密的，表示信任的，担任机密工作的

参考例句：

• He refused to allow his secretary to handle confidential letters.他不让秘书处理机密文件。
• We have a confidential exchange of views.我们推心置腹地交换意见。

7 candid   

adj.公正的，正直的；坦率的

参考例句：

• I cannot but hope the candid reader will give some allowance for it.我只有希望公正的读者多少包涵一些。
• He is quite candid with his friends.他对朋友相当坦诚。

8 advisers   

顾问，劝告者( adviser的名词复数 )； （指导大学新生学科问题等的）指导教授

参考例句：

• a member of the President's favoured circle of advisers 总统宠爱的顾问班子中的一员
• She withdrew to confer with her advisers before announcing a decision. 她先去请教顾问然后再宣布决定。

9 cogent   

adj.强有力的，有说服力的

参考例句：

• The result is a cogent explanation of inflation.结果令人信服地解释了通货膨胀问题。
• He produced cogent reasons for the change of policy.他对改变政策提出了充分的理由。

10 essentially   

adv.本质上，实质上，基本上

参考例句：

• Really great men are essentially modest.真正的伟人大都很谦虚。
• She is an essentially selfish person.她本质上是个自私自利的人。

11 posits   

v.假定，设想，假设( posit的第三人称单数 )

参考例句：

• If a book is hard going, it ought to be good. If it posits a complex moral situation, it ought to be even better. 如果一本书很难读，那么它应该是一本好书；如果它提出了一个复杂的道德状况，那么它就更应该是本好书了。 来自《简明英汉词典》
• Ray posits that this miracle is an object lesson for the disciples. 雷把这个奇事当作教训信徒们的事件。 来自互联网

12 magistrate   

n.地方行政官，地方法官，治安官

参考例句：

• The magistrate committed him to prison for a month.法官判处他一个月监禁。
• John was fined 1000 dollars by the magistrate.约翰被地方法官罚款1000美元。

13 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

14 dissect   

v.分割；解剖

参考例句：

• In biology class we had to dissect a frog.上生物课时我们得解剖青蛙。
• Not everyone can dissect and digest the public information they receive.不是每个人都可以解析和消化他们得到的公共信息的。

15 inquiry   

n.打听，询问，调查，查问

参考例句：

• Many parents have been pressing for an inquiry into the problem.许多家长迫切要求调查这个问题。
• The field of inquiry has narrowed down to five persons.调查的范围已经缩小到只剩5个人了。

16 timing   

n.时间安排，时间选择

参考例句：

• The timing of the meeting is not convenient.会议的时间安排不合适。
• The timing of our statement is very opportune.我们发表声明选择的时机很恰当。

17 ongoing   

adj.进行中的，前进的

参考例句：

• The problem is ongoing.这个问题尚未解决。
• The issues raised in the report relate directly to Age Concern's ongoing work in this area.报告中提出的问题与“关心老人”组织在这方面正在做的工作有直接的关系。

18 hamper   

vt.妨碍，束缚，限制；n.(有盖的)大篮子

参考例句：

• There are some apples in a picnic hamper.在野餐用的大篮子里有许多苹果。
• The emergence of such problems seriously hamper the development of enterprises.这些问题的出现严重阻碍了企业的发展。

19 solicitous   

adj.热切的，挂念的

参考例句：

• He was so solicitous of his guests.他对他的客人们非常关切。
• I am solicitous of his help.我渴得到他的帮助。

20 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

21 precedents   

引用单元； 范例( precedent的名词复数 )； 先前出现的事例； 前例； 先例

参考例句：

• There is no lack of precedents in this connection. 不乏先例。
• He copied after bad precedents. 他仿效恶例。

22 proceedings   

n.进程，过程，议程；诉讼(程序)；公报

参考例句：

• He was released on bail pending committal proceedings. 他交保获释正在候审。
• to initiate legal proceedings against sb 对某人提起诉讼