OA290: Executive Privilege, Hope Hicks & Don McGahn

Today’s episode takes a deep dive into executive privilege, evaluating the legal arguments being raised by the Trump administration asserting executive privilege over former communications director Hope Hicks and former counsel Don McGahn. Find out how good those arguments are — spoiler: some aren’t terrible! — and what’s next for the Congressional Democrats.

First, though, we begin with coverage of the American Legion v. American Humanist Ass’n decision from last week; that’s the Bladensburg Cross case that we’ve discussed at some length on this show. How bad is this decision? (Bad.)

Then, it’s time for the intersection of Rapid Response Friday and Deep Dive Tuesday in which we time travel all the way back to 1971 to evaluate the Trump Administration’s claims regarding executive privilege “over the last five decades.” As you’ve come to expect from OA, we tell you what the administration got right… and, of course, what they got wrong. If you want to know if and when Congress will ever get meaningful testimony out of Hope Hicks or Don McGahn, you need to listen to this show.

Then, it’s time for the answer to TTTBE #131 about the propriety of a specific question during cross-examination of a witness who testified as to the defendant’s “reputation for honesty.” If you love the Federal Rules of Evidence — and really, who doesn’t? — you’ll love this segment.


None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. We first discussed the Bladensburg Cross case in Episode 256 with Sarah Henry of the AHA, and then got first-hand testimony about the oral argument in Episode 274 with Monica Miller.
  2. Click here to read the full Supreme Court opinion in American Legion v. American Humanist Ass’n. If you missed our coverage of Masterpiece Cakeshop, check out Episode 180.
  3. We first broke down the importance of Hope Hicks to the Congressional investigations in Episode 259; and you can click here to read the letter and subpoena she received from Rep. Nadler.
  4. NPR confirmed that Hicks’s testimony was carefully managed by White House lawyers (and was therefore worthless).
  5. Click here to read Rehnquist’s 1971 memorandum on executive privilege, and click here to read how President Clinton’s OLC cited that memo 25 years later.
  6. Finally, this is Committee on the Judiciary v. Miers, 558 F.Supp.2d 53 (2008), the district court opinion Andrew breaks down on the show.

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