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May 8, 2019 - The Ben Shapiro Show
59:55
Executive Time! | Ep. 776
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President Trump declares executive privilege over the unredacted Mueller report, President Trump's tax returns from three decades ago spill out, and Democrats escalate impeachment talk.
I'm Ben Shapiro.
This is The Ben Shapiro Show.
Separation of powers fight.
Separation of powers fight!
I know, it's such exciting stuff when the President of the United States declares executive privilege in order to shield his Attorney General from possible impeachment.
Wow!
Things are getting so exciting for people who really love talking about the legal Vagaries of executive privilege.
We'll get to all that in just a second.
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Okay, so the rubber now meets the road.
The rubber now meets the road.
The President of the United States this morning declared executive privilege over the unredacted Mueller report.
So, here is the report from the New York Times.
They say, President Trump's asserted executive privilege on Wednesday in an effort to shield hidden portions of Robert Mueller's unredacted report and the evidence he collected from Congress.
So, to recapitulate, William Bott wrote a four-page synopsis of Robert Mueller's report.
He then released the entire report with certain sections blacked out.
The sections that were blacked out, there was not a lot of accusation that this hid super secret, really bad stuff that was going to end in President Trump's impeachment.
It looked, just politically speaking, it looked as though Democrats were trying to shove into the redacted portions all of their expectations that were unfulfilled in the actual Mueller reports.
They expected from the Mueller report damning evidence of obstruction of justice, damning evidence of collusion and conspiracy.
And none of that was in the actual unredacted Mueller report.
There was some bad behavior by the president of the United States.
There was some ugly behavior by the president of the United States.
There was nothing that rose to the level of criminally prosecutable behavior, even according to Mueller himself, who declined to say whether the president should or should not be prosecuted, kicked it over to Attorney General Barr, who said, I don't have the evidence to prosecute here.
So Democrats, instead of saying, OK, well, Mueller didn't do anything.
Barr didn't do anything.
We're done here.
Instead, Democrats said, You know what?
Probably the material that we've seen does not merit impeachment, right?
This is the implicit, the implicit acknowledgement of the Democrats putting all of their expectations on the redacted sections of the report is that they are implicitly acknowledging that the unredacted sections of the report are not enough to sustain any sort of impeachment push.
So instead, what they did is they said, well, probably the redacted sections, that's the part that's nefarious.
That's William Barr hiding material from us, from us!
And William Barr was like, well, no.
The reason that stuff is hidden is because it impacts ongoing investigations, number one.
Or number two, to release it would violate the federal rules of criminal evidence, because I cannot just release grand jury information into the public view.
And also, we have no responsibility to turn over grand jury information to the legislative branch.
If the legislative branch wants to do its own investigations, they can subpoena any witness they want and bring that witness to them, so long as the president doesn't assert executive privilege over that witness.
Now, from the Democratic point of view, they're saying, OK, well, here's the deal.
We want to talk to Robert Mueller.
We want to talk to Don McGahn, the president's personal attorney.
We want to ask them questions that we feel were unanswered in the Mueller report.
And they should come and they should sit before us.
And hopefully we can pry out of them some evidence that is impeachable because the report itself doesn't include that.
And President Trump is saying, guys, we've just gone through a $35 million process here, resulting in a 450 page report.
If it ain't there, it ain't there.
And subjecting people who worked for me or people who are members of the executive branch to more of your questioning that will just generate more headlines that will end in nothing.
All of this is just Machiavellian manipulation.
So this is where we end up with Constitution Fight 2019.
Because the question is, What can the president assert executive privilege over?
The Democrats have now subpoenaed the full Mueller report.
They want all the unredacted sections.
They even are asking for the grand jury testimony.
And William Barr is saying, I can't hand that stuff to you because to do so would be a violation of my obligations under the law to protect people who have not been accused of or convicted of any crimes, who are not being tried for any crimes.
It would be to subject them to scrutiny unwarranted by law, which is a proper position.
And Democrats are saying, no, if you won't hand us that material, then we are going to hold you in contempt.
And Barr says, fine, then I'll just ask the president of the United States to assert executive privilege.
And then I don't have to turn it over.
And you can't hold me in contempt because you have no cause to hold me in contempt because you can't legally get those documents.
So that is where we stand.
This morning, the Democrats pushing for some sort of contempt hearing on William Barr.
They were going to push forward for that this morning.
The President of the United States declared executive privilege over these documents.
Now, this looks a lot like what happened with Attorney General Eric Holder in Fast and Furious.
So, there are a bunch of documents in Fast and Furious.
Fast and Furious was a scandal that happened during the Obama administration.
I know.
There were no scandals during the Obama administration.
You've been told by the press.
That, of course, is a lie.
The Fast and Furious scandal was the DOJ working together with the ATF to allow guns to be bought by straw purchasers in the United States and then smuggled south to Mexican drug cartels Where they would be used and then presumably we would we would track where the guns went and this would help us uncover the chain of weapons provision to the Mexican drug cartels.
Some of those guns were then used in the killing of Border Patrol agent Brian Terry and this became a national scandal.
So Congress investigated and they investigated Holder and they said did you give the explicit go-ahead to the ATF to allow illegal sales of weaponry that you knew was going to be smuggled to Mexican drug cartels and that you could certainly foresee was going to be used in the murder of American citizens?
Eric Holder then asked the president, then Barack Obama, to use executive privilege to shield him from the exposing of documents.
Congress proceeded to hold Eric Holder in contempt.
That executive privilege contention by the Obama administration ended up being overturned by a judge.
Those documents eventually were turned over and it turned out that the documents didn't really show anything supremely damaging.
Beyond what they originally knew.
So, here's the problem.
Executive privilege is really a vague category of law.
It's really vague.
There have not been a lot of judicial rulings on executive privilege.
Executive privilege was only formally acknowledged by the Supreme Court of the United States in 1974.
There's nothing in the Constitution that explicitly says executive privilege exists, but there's also nothing in the Constitution that says that the executive power has to bend before every subpoena of legislative power.
There is a balance of power, and there is gridlock.
So the idea of executive privilege does have long roots in English common law.
It's not just an invention that's been made up in the last 50 years or so.
So this is where we stand, and I will get into the analysis of whether executive privilege applies here, because there are a couple of different types.
Again, information first.
Opinion always comes after.
So, the New York Times reports that Mr. Trump's first use of the secrecy powers as president, the executive privilege they're now calling secrecy powers, came as the House Judiciary Committee is expected to vote Wednesday morning to recommend that the House hold Attorney General William Barr in contempt of Congress for defying a subpoena for the same material.
Now, as I've been saying for a while, I think that this is all a game for Democrats.
I don't think that they actually care about the underlying material.
I think they are looking for an excuse to blame William Barr and cast him as an obstructor when, in fact, there's no evidence that he's obstructing anything at this point.
Justice Department official Stephen Boyd wrote on Wednesday morning, this is to advise you that the president has asserted executive privilege over the entirety of the subpoenaed materials.
Barr released a redacted version of the special counsel's 448-page report voluntarily last month.
Democrats say that is not good enough.
They've accused the attorney general of stonewalling a legitimate request for material they need to carry out an investigation into possible obstruction of justice and abuse of power by Mr. Trump.
And Barr says, well, listen, you're the ones buying votive candles of Robert Mueller.
He didn't recommend an indictment.
I looked at his report.
You looked at his report.
If you want to impeach him, go for it.
I'm not prosecuting him because the evidence does not sustain that.
And that's where we stand.
The House Judiciary Committee prepared to vote Wednesday morning to hold Barr in contempt, despite that threat issued late Tuesday night from the Justice Department.
Committee Democrats did not take kindly to the department's threat.
They said, Now the Trump administration says, what the hell are you talking about?
We let Mueller go through all of his paces here.
We spent $35 million.
He's a member of the executive branch.
The president of the United States could have fired him at any time.
At any time.
And the fact that he did not and let the report go forward.
The fact that Don McGahn did speak for hours on end to Robert Mueller and that Mueller interviewed him.
And Mueller, I promise you, is a better interviewer and a better lawyer than anybody who's on the House Judiciary Committee and the House Oversight Committee.
Why are you suggesting that Robert Mueller did an insufficient job, but Congress is going to do a wonderful job?
And if you think Robert Mueller did an insufficient job, well then subpoena the witnesses yourself.
Don't do this routine where you use his underlying materials and then suggest that he was too foolish to understand the materials he had already compiled.
Sarah Huckabee Sanders has released a statement.
She says the American people see through Chairman Nadler's desperate ploy to distract from the president's historically successful agenda and our booming economy.
Neither the White House nor Attorney General Barr will comply with Chairman Nadler's unlawful and reckless demands.
The AG has been transparent and accommodating throughout this process, including by releasing the no-collusion, no-conspiracy, no-obstruction Mueller report to the public and offering to testify before the committee.
These attempts to work with the committee have been flatly rejected.
They didn't like the results of the report, and now they want a redo.
Faced with Chairman Nadler's blatant abuse of power and at the Attorney General's request, the President has no other option than to make a protective assertion of executive privilege.
It is sad that Chairman Nadler is only interested in pandering to the press and pleasing his radical left constituency.
The American people deserve a Congress that is focused on solving real problems like the crisis at the border, high prescription drug prices, our country's crumbling infrastructure, and so much more.
There's a lot of truth to this.
There is no evidence that the redacted material is going to be providing Nadler and Democrats what they want here.
This seems like a manufactured controversy.
It does seem like a manufactured controversy.
Now, does the president actually have the power to assert executive privilege over all of this material?
We'll get to that in just one second.
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Okay, so...
The DOJ's letter to Jerry Nadler is worth reading in full.
It's not very long.
This letter was written by Stephen Boyd, the Assistant Attorney General.
Here's what he wrote.
We are disappointed that you have rejected the DOJ's request to delay the vote of the Committee on the Judiciary on a contempt finding against the Attorney General this morning.
By doing so, you have terminated our ongoing negotiations and abandoned the accommodation process with respect to your April 18, 2019, subpoena of confidential Department of Justice materials related to the investigation conducted by Special Counsel Robert Mueller.
As we have repeatedly explained, the Attorney General could not comply with your subpoena in its current form without violating the law, court rules, and court orders, and without threatening the independence of the Department of Justice's prosecutorial function.
Despite this, we have attempted to engage with the committee in good faith in an effort to accommodate your stated interest in these materials.
Unfortunately, rather than allowing negotiations to continue, you scheduled an unnecessary contempt vote, which you refused to postpone to allow additional time for compromise.
All of this is true, by the way.
Accordingly, this is to advise you that the president has asserted executive privilege over the entirety of the subpoenaed materials.
As I indicated in my letter to you last night, this protective assertion of executive privilege ensures the president's ability to make a final decision whether to assert privilege following a full review of these materials.
So it's effectively a prophylactic assertion of executive privilege.
The president will declare executive privilege and then they will analyze what can be released and then they will release what they think they can.
Regrettably, you have made this assertion necessary by your insistence upon scheduling a premature contempt vote, Stephen Boyd, Assistant Attorney General.
And all of this seems right.
Now, the problem for President Trump in all of this is that the president has made it look as though he actively wants to stop people from talking to Congress.
So the president has said that he doesn't want Mueller to talk to Congress.
And that is a problem.
Again, because Barr's case is not that nobody should talk to Congress.
Barr's case is, I came before Congress, I testified before Congress, I revealed as much of the material as I could legally speaking.
And then you guys want me to release material that is not releasable.
You guys want something from me that I cannot give to you.
And that is a perfectly plausible case, a case in which I basically agree with William Barr.
I haven't seen the unredacted materials, but I think that he would not commit perjury by going in front of Congress and then saying the unredacted materials are actually... I mean, the redacted materials.
are actually not necessary to redact.
I don't mean that he'd commit perjury on that score.
The problem is the image here.
So the image here is that President Trump is now asserting executive privilege.
This is what the press wants to push.
The press wants to push the image that the president of the United States is actually asserting executive privilege, not because Barr asked him to, in order to prevent Barr from violating the law and in order to prevent a contempt vote that is empty, meaningless, and politically motivated.
The image that is being drawn by the press and by President Trump in many reports right now is that Trump just wants to stop Congress cold in its investigations.
And that image is being painted by stories like this one.
So yesterday, before the president's asserted executive privilege, the president started tweeting out that he didn't want Robert Mueller to testify.
Well, there's no reason Robert Mueller shouldn't testify before Congress.
There's no legal reason that Robert Mueller can't testify before Congress.
Now, I understand the president being irritated.
I do.
I'm irritated.
I find all of this annoying.
I don't think that Mueller is likely to give Democrats anything they want.
I don't think that Mueller is going to go before Congress and say, you know, secretly, I wanted to indict the president.
But publicly, I just sort of decided to skip it because...
I don't think that Democrats are going to get that from Mueller.
I understand the president being like, this is dragging on forever.
This is just another sham by Democrats in order to prevent us from moving forward with my agenda.
I have a lot of sympathy for the president's position on that.
But it looks as though the president is trying to stop Mueller from talking publicly because he's afraid of what Mueller is going to say, not because he's irritated with Democrats.
And this has been a consistent problem for President Trump.
He fired James Comey, the former FBI director, because he suggested that James Comey would not simply say he wasn't under investigation.
And that annoyed him.
But for the press, it was because he was afraid of what James Comey might find.
Same thing here.
He's irritated that Democrats are asking Mueller questions.
He's like, guys, we spent $35 million.
You had 40 lawyers on this thing.
It produced a 450-page report.
Why do you need to talk to Mueller now other than some ginned-up controversy that makes no sense?
So screw it.
Not going to do it.
That's what the president is thinking.
The way the press is playing it is Mueller is going to testify to something deep and dark and perverse.
And Trump is super afraid of that.
You can listen to this New York Times piece from yesterday.
When President Trump declared that special counsel Robert Mueller should not testify before Congress, he contradicted Attorney General William Barr, who had already told lawmakers he had no objection to letting Mueller talk to them.
That clash has raised the prospect of a major test of Justice Department independence on Barr's watch, Defying Mr. Trump would be awkward for Barr, in part because he has long subscribed to a sweeping theory of executive power under which Trump may rightfully override and control any discretionary decision by a subordinate executive branch official.
Well yes, this is called the Unitary Executive Theory and it happens to be the case.
They say, while the Trump team has been pleased with Mr. Barr's handling of the Mueller investigation, disregarding Trump's desires, risks angering a mercurial president who turned on once-favored subordinates, including Mr. Barr's predecessor, former Attorney General Jeff Sessions.
Mr. Barr, citing his age and lack of further aspirations, promised Congress during his confirmation hearing, I will not be bullied into doing anything I think is wrong by anybody, whether it be editorial boards or Congress or the president.
I'm going to do what I think is right.
So as I say, the press is playing this as though Barr wants Mueller to testify and Trump doesn't want Mueller to testify because he's afraid of what Mueller will say.
And that is followed up by this report that President Trump doesn't want Don McGahn to testify.
So again, The president does have the ability to assert executive privilege with regard to internal communications with the White House counsel, obviously.
With that said, McGahn already testified in front of Robert Mueller.
Having McGahn go in front of Congress is not going to hurt the president.
McGahn knows how to handle himself.
He knows what his testimony will be.
He doesn't want to be seen as either lying to Mueller.
He has to repeat his testimony basically verbatim.
Right?
Because either he lied to Mueller, in which case lying to the FBI is a crime, or he would be lying to Congress, in which case he'd be committing perjury if he did not match his testimony.
Right?
So his testimony has to match.
Trump, again, is irritated that Congress is calling McGahn.
He doesn't want to rehash all of this again.
But the press is playing this as though Trump is afraid of McGahn spilling the beans on him.
So CNN reported yesterday the White House has instructed former White House counsel Don McGahn not to comply with a subpoena for documents from the House Judiciary Committee Jerry Nadler, teeing up the latest in a series of escalating oversight showdowns.
Between the Trump administration and Congressional Democrats.
McGahn's decision not to comply with the subpoena could push Nadler to hold McGahn in contempt of Congress, just as he is currently doing with Attorney General William Barr.
Nadler issued a subpoena to McGahn for documents and testimony related to the committee's obstruction of justice investigation, setting a Tuesday deadline for McGahn to turn over the documents, and proposing a May 21st hearing date.
Nadler threatened McGahn again with being held in contempt if he failed to appear in a letter sent Tuesday night.
He said, I fully expect that the committee will hold Mr. McGahn in contempt if he fails to appear before the committee unless the White House secures a court order directing otherwise.
He said, a letter from the White House in service of the president's apparent goal of blocking or delaying testimony that the president believes would be politically damaging is not a basis for McGahn to violate his legal obligation to appear before the committee.
The White House said it would not allow McGahn to turn over the documents.
The White House has not relayed its position on whether it would seek to block McGahn's testimony, too.
So, again, there's two plausible reasons that Trump doesn't want McGahn to testify or turn over the documents.
One is, I'm done with this.
This is a waste of time.
Mueller looked at all of this crap.
What are you people doing?
Not gonna do it.
McGahn, sit down.
Shut up.
That's possible reason number one.
Possible reason number two, and this is the one the Democrats are relying on, is Trump doesn't want Mueller to talk.
Trump doesn't want McGahn to talk.
Trump doesn't want Barr to talk.
He doesn't want any of them to talk or turn over the documents because there's something hidden.
Now, the reason I think Theory 1 is more plausible than Theory 2, the reason why I think that Trump doesn't want these people to testify or turn over documents, is because we've already had a Mueller investigation.
That Mueller investigation resulted in a 450-page comprehensive report with minimal redactions.
If there were no report at this point, I would say, yeah, it looks more like a cover-up than it looks like the president being frustrated with rehashing the past.
But the report's public.
We've all read the report.
Mueller wrote it.
Barr released it.
Don McGahn testified to Mueller.
So this is just a rehash.
I think that this is the president once again acting frustrated.
Why?
Because this is always how he has been.
He has always acted frustrated with the investigation because he feels he is innocent.
Democrats are playing that frustration as the president trying to engage in a cover-up.
So they say the reason he's asserting executive privilege is not because he's irritated or he's within his rights.
The reason that he is doing all of that is because he's trying to cover up evidence of a nefarious crime just like Richard Nixon.
The difference is that Richard Nixon actually engaged in an underlying crime.
There's no evidence that Trump engaged in underlying criminally prosecutable behavior.
And number two, Richard Nixon tried to obstruct the equivalent of the Mueller investigation itself.
He fired the special prosecutor Archibald Cox.
He fired his own attorney general in order to do so.
That would have been the equivalent of Trump firing Mueller and firing the AG in the middle of the investigation.
Trump didn't do either of those things.
So the attempt to link Trump asserting executive privilege to Nixon asserting executive privilege, as some have been trying to do today, I do not think that comparison holds.
It looks much more like President Obama asserting executive privilege on Eric Holder.
Maybe.
And even then, I think it's more plausible that Obama was trying to hide documents to protect Eric Holder than that Trump is trying to hide documents to protect William Barr.
In a second, we'll talk about how effective this assertion of executive privilege is likely to be.
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OK, so is the president of the United States likely to succeed in his assertion of executive privilege?
Well, here's some of the background on executive privilege.
This comes from the Brennan Center, which is a more left-leaning legal center doing legal analysis.
Aziz Houk, who's a columnist, I guess, over there for them, a lawyer for them, he wrote this going back to 2007.
This was not designed for President Trump or against President Trump.
And here's what it says.
The president's constitutionally based privileges subsume privileges for records that reflect, one, military, diplomatic, or national security secrets.
This would be the state secrets privilege.
So the president is negotiating with China, Congress subpoenas those records, Trump says no.
Okay.
Two, communications of the president or his advisors.
The presidential communications privilege.
Three, legal advice or legal work.
That'd be attorney clients or attorney work product privileges.
So presumably he asked Don McGahn for legal advice that is not subject to congressional oversight.
And finally, the deliberative processes of the president or his advisors.
The two most commonly invoked executive privileges are the so-called presidential communications privilege and the deliberative processes privileges.
Privilege.
The presidential communications privilege protects from disclosure any communications that are either by the president directly or by his immediate advisers in the office of the president to the president.
The Supreme Court did recognize this privilege in Nixon versus United States and Nixon versus administrator of general services.
The Nixon cases were about Nixon being subpoenaed by Congress for records of his internal deliberations over Watergate, basically, including the including the Watergate tapes, including the Oval Office tapes.
and the Supreme Court ruling that he had to turn them over.
over.
The court grounded the privilege and the need for cancer and executive branch decision making and the supremacy of each branch within its own assigned area of constitutional duties.
In the Nixon cases, the Supreme Court applied the term presidential communication privilege solely to communications involving the president.
So the president is talking with somebody and he wants to keep that communication secret.
That falls under executive privilege.
How do you However, the D.C.
Circuit cautioned that not every communication with a presidential advisor would be protected.
The privilege should apply only to communications authored or solicited and received by those members of an immediate White House advisor's staff who have broad and significant responsibilities.
So in other words, the janitor at the White House doesn't have executive privilege.
Once properly asserted by a qualified person, the Presidential Communications Privilege applies to documents in their entirety.
It covers final and post-decisional materials, as well as pre-deliberative ones.
Critically, it covers any factual matter contained in a communication, and in this regard sweeps broader than the Deliberative Process Privilege, which we will get to in just a second.
But the presidential communications privilege can be overcome by a sufficient showing of need.
So if this goes to court, expect that Congress will simply assert that they have a sufficient need because they are involved in a criminal investigation and they need to see these documents.
One of the first judicial recognitions of an executive branch secrecy claim was written by Chief Justice John Marshall.
He endorsed the idea that the privilege is defeasible.
In other words, however well established the privilege may be, it has never been absolute.
The Supreme Court has strongly suggested that the presidential communications privilege must yield whenever a coordinate branch's constitutional role is at stake.
Nixon, the Nixon case, concluded that President Nixon had to yield to a subpoena to preserve the function of the courts under Article 3.
Another Nixon case held that Congress could roll back a former president's privilege in light of the scope of Congress's broad investigative powers.
So Congress says this particular piece from the Brennan Center ought to be able to overcome the presidential communications privilege in any instance that it exercises its constitutional powers to legislate and conduct oversight.
So the question will be, is this legitimate oversight that Congress is attempting to engage in, or is this basically political posturing?
And that will end up in court.
Then there is a broader and more powerful deliberative process privilege.
In other words, President Trump is having a conversation with Don McGahn about what to do about the Mueller report.
And it's before a decision has been made.
It protects executive branch officers' communications that are pre-decisional and a direct part of the deliberative process.
A document is pre-decisional if it was generated before the adoption of a policy and reflects the give and take of the consultative process.
In other words, President Trump is having a conversation with Don McGahn about what to do about the Mueller report and it's before a decision has been made.
So this seems to fall squarely within that privilege.
The privilege has long been recognized by the Supreme Court The underlying rationale is that the disclosure of deliberative communications will chill future communications, like Trump will never talk with his lawyer ever again, thus diminishing the effectiveness of executive decision-making and injuring the public interest.
Now, properly invoked, the Deliberative Process Privilege is narrower than the Presidential Communications Privilege, primarily because the Deliberative Process Privilege does not extend to purely factual material, unless it is inextricably intertwined with policymaking processes.
In other words, if there is an investigation and it covers factual material, that's not a Deliberative Process Privilege.
Deliberative Processes began offering his opinion on the underlying materials.
It doesn't necessarily cover the underlying materials themselves.
It's also susceptible to congressional or judicial negation.
The privilege disappears when there is any reason to believe government misconduct occurred.
So, will this assertion of executive privilege hold up in court if the president tries to assert executive privilege over all of this?
Only if the court, having looked at the actual privileged material, which it will, only if the court, having looked at the material, finds that Don McGahn was involved in legal discussions protected by privilege, or looking at the unredacted Mueller report, finds that William Barr is speaking the truth, and that this material could not simply be released into the public.
In reality, this is more of a delaying tactic than it is a legal tactic designed to keep these documents secret.
In reality, I think the courts would be likely to rule against the Trump administration on executive privilege grounds, as they did, by the way, when it came to executive privilege for Eric Holder and President Obama.
Now here's the truth.
There's a long history of presidents using executive privilege.
That in and of itself is not impeachable.
Democrats have been trying to claim that the president, because he's asserting executive privilege, is indubitably trying to hide something.
As I said, there's a very plausible alternative theory where he's just frustrated and annoyed And where Don McGahn doesn't want to commit perjury by accidentally mis-answering a question, or where William Barr is trying to prevent himself from committing some sort of federal crime by violating the federal rules of criminal evidence.
That's a plausible theory.
A court will end up sorting this out.
Suffice it to say that the assertion of executive privilege alone, in this particular case, does not necessarily mean a Nixonian cover-up.
We'll get to more of this in just a second.
I'll talk about the differences between various types of exertions of executive privilege, historically speaking.
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OK.
More on executive privilege and where this is going.
Plus, a supposedly blockbuster report on President Trump not being good at business.
Ooh, got him!
That's where they're moving now.
We'll get to that in just a second.
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Go check us out.
So I want to go through a brief history of the use of executive privilege so we can see how President Trump fits in with precedent.
So we'll start with Richard Nixon because the prior invocations of executive privilege were a lot less controversial, obviously.
And Nixon is the one who people are trying to compare Trump to here.
I don't think that the comparison is apples to apples.
For a bunch of reasons, as I will explain.
The Constitution Center has a really good summary of all of this.
They say, In the landmark Supreme Court case U.S.
always been nominally used in defense of the public interest, Nixon attempted to use it to protect himself and other advisors during Watergate.
In the landmark Supreme Court case, US versus Nixon, the Supreme Court unanimously declared that executive privilege is constitutional and sometimes necessary for national security.
But the court also held it is not all encompassing.
If requested documents and testimonies are a key part of an investigation, they must be brought forward.
Therefore, the Watergate tapes were turned over to the special prosecutor shortly after this decision.
Nixon resigned because he was trying to stop those tapes from coming out because they showed that he had engaged in criminal activity.
According to the Constitution Center, Nixon forever changed how Americans view executive privilege.
His questionable use of the power led many Americans to believe that all uses are for the same undisclosed reasons.
This may have led Gerald Ford, Jimmy Carter, Ronald Reagan, George H.W.
Bush to use the privilege sparingly, especially Ford.
Reagan was so cautious he didn't even use executive privilege during Iran-Contra.
The next controversy regarding executive privilege came with Bill Clinton.
The Clinton White House was mired in two scandals, Whitewater and Monica Lewinsky.
During those investigations, President Clinton used executive privilege 14 times.
14 times.
That included protecting First Lady Hillary Clinton from testifying during the Whitewater hearings and protecting himself from testifying in both of those cases.
His executive privilege claims, as well as his attorney-client claims in the Lewinsky investigation, were challenged in federal court.
Citing U.S.
v. Nixon, the courts determined that the prosecutors' needs outweighed the confidentiality of executive documents and discussions.
This ruling was not appealed to the Supreme Court.
The White House sought to avoid a headline-grabbing legal loss.
Clinton, of course, ended up being impeached.
Barack Obama used executive privilege during Fast and Furious.
As I mentioned, ATF, the Bureau of Alcohol, Tobacco, and Firearms, had run an operation to sell guns to Mexico, trying to track the guns.
One of those guns was eventually used to kill Border Patrol Agent Brian Terry.
Representative Daryl Issa and Senator Chuck Grassley held hearings to determine what went wrong during the mission.
Obama and AG Eric Holder both said they didn't know about the mission until a few weeks prior to the killing and didn't authorize it.
Congress and the DOJ ended up in a standoff over the sharing of 1,300 documents, leading Obama to assert executive privilege in order to keep them private.
Congress voted to hold Holder in contempt.
Obama's claim of executive privilege was rejected by a federal court.
So as I say, the chances that this is held in, that these executive privilege attempts hold up are pretty low unless William Barr is telling the truth and this material simply cannot be released because this material would violate federal rules of criminal evidence.
So if Barr is lying, then the executive privilege will be struck down.
All of this will end up in the hands of Democrats, which means it will become public.
If William Barr is telling the truth, then a court will adjudicate that and executive privilege will have been properly applied.
Now, the way Democrats are taking that is that a mere assertion of executive privilege amounts to a cover-up.
As I say, I don't think that's correct, just as I don't think that the president's mere firing of James Comey amounted to an attempt to stop the Mueller investigation.
I don't think that the president, merely discussing with Don McGahn that he wanted to fire Mueller, amounted to a firing of Mueller.
The president is a volatile human being.
The president is a guy who doesn't like being bothered.
He doesn't like being under scrutiny.
So there's a very plausible explanation for not wanting Mueller to testify or McGahn to testify.
There's a plausible explanation for Barr asserting executive privilege here.
And even those are not for the same reason.
Right, Trump doesn't, I don't think Trump really cares whether the unredacted material comes out in the Barr, in the Barr version of the report, the redacted report.
I don't think Trump cares about the underlying material because, again, the report has found what it found, Barr found what he found, and we're done there.
I think Barr is really, I've seen no evidence that Barr is dishonest, in other words.
I keep hearing from Democrats that Barr is dishonest.
I don't see evidence that Barr is acting dishonestly here to cover for the president.
This seems manufactured to me on the bar front.
That said, the president has a unique gift for making innocuous headlines seem non innocuous.
And so instead of just saying, listen, my attorney general says Democrats are seeking material that he cannot publicize without violating the law.
So I'm asserting executive privilege.
At the same time, he's saying, I don't want Mueller to testify and I don't want McGahn to testify.
He should just say, listen, would I prefer that these guys not testify?
Sure.
I'm annoyed with this whole thing.
But if Democrats want them to testify, they'll come forward and testify.
We'll do this whole thing again.
If the president had been a little more quiescent during this entire process, it would have served him a lot better.
Instead, by thrashing around and struggling, it makes him look more guilty than he actually is, because I don't actually think that he's guilty of a crime here.
Well, this has left it to Republicans to explain.
Senator Mitch McConnell, the Senate Majority Leader, he points to the Democrats and says, these people are not serious.
Okay, Mueller is done.
This is not a serious party.
Seriousness is not what we've seen from the Democratic Party in recent days.
Not serious.
What we've seen is a meltdown.
An absolute meltdown.
An inability to accept the bottom line conclusion on Russian interference from the special counsel's report.
OK, and then he continues by saying, listen, this investigation is at an end.
Mueller is done.
So what exactly are you doing here?
And of course, McConnell is right about all of this.
That doesn't mean that Congress doesn't have an ability or a duty to investigate.
If they want to investigate, they can.
So McConnell is right on the substance.
I think that in process, the Republicans would be better off saying, listen, all the doors are open.
You want to interview whomever you want, go for it.
Can't give you these documents because that would violate the law.
But you want to interview Mueller, you want to interview McGahn, go for it.
William Barr already showed up and testified before you adults and made you look foolish.
I think it would look more like the same from Mueller and McGahn.
But here's McConnell rightly saying, listen, this Mueller thing is done.
And Democrats, really, we all know what this is about.
Democrats trying to dig scandal out of non-scandal.
They told everyone there had been a conspiracy between Russia and the Trump campaign.
Yet on this central question, the special counsel's finding is clear.
Case closed.
And then Democrats, of course, have responded to all of this by saying, no, no, no, no.
The reason that Trump doesn't want Mueller to testify or McGahn to testify is because he wants a cover-up.
Because Trump wants a cover-up.
Here's Chuck Schumer, the Senate minority leader, talking about all of this.
375 former federal prosecutors looked at the Mueller report and said publicly, The conduct of the president amounts to felony obstruction of justice.
And that, in any other case, were he not president, those prosecutors would recommend bringing charges.
So our leader says, let's move on?
It's sort of like Richard Nixon saying, let's move on, at the height of the investigation of his wrongdoing.
Of course he wants to move on.
He wants to cover up.
He wants to silence.
OK, so this is the Democratic take on all of this.
Is that reality?
Is this really about silencing?
No, but it's not smart of the president to grant the impression that the press would like to push forward, that he would like to cover things up.
Again, there's no underlying crime that's been uncovered here.
As far as that letter from prosecutors saying that they would have prosecuted President Trump, sure he would have.
Yeah, I'm sure.
Again, Mueller's people wanted to prosecute the president.
It is obvious when you read that report.
Mueller's people despise Trump.
There's no way to read that second half of the report about obstruction and not read prosecutors struggling to death to try and catch Trump in something prosecutable and not quite being able to and having to let it go.
All these prosecutors, they're not prosecuting Trump.
So it's easy for them to say, yeah, I'd prosecute him if I had the chance.
Sure you would.
Sure you would.
And meanwhile, Democrats are trying every other avenue to try and humiliate President Trump.
The latest example is, of course, this large report in the New York Times that back in the 1980s and 1990s, Trump lost a lot of money.
You got him, guys.
I guess he's not president anymore.
I mean, I can't believe it.
You've uncovered the great secret about President Trump.
That President Trump is not as rich as he says he is, and that he has long been, financially, a sort of con man who pastes his name on the outside of giant buildings that lose money but is great at branding.
You got him.
Nobody's ever brought this up before.
Nobody.
Nobody's ever mentioned that this guy somehow lost money in the casino industry and that he has a bunch of bankrupt companies.
Nobody's ever mentioned that.
So now that you got him, I am sure he will lose in 2020.
You have burst the bubble, fellas.
My goodness.
There's an article from Ross Buettner and Susan Craig, and this was getting all the press this morning until the assertion of executive privilege.
The piece from the New York Times says, by the time his master of the universe memoir, Trump, the art of the deal hit bookstores in 1987, Donald Trump was already in deep financial distress, losing tens of millions of dollars on troubled business deals, according to previously unrevealed figures from his federal income tax returns.
Trump was propelled to the presidency in part by a self-spun narrative of business success and of setbacks triumphantly overcome.
He's attributed his first run of reversals and bankruptcies to the recession that took hold in 1990.
But 10 years of tax information obtained by the Times paints a different and far bleaker picture of his deal-making abilities and financial condition.
The data, printouts from Trump's official IRS tax transcripts with the figures from his federal tax form for the 1040 for the years 1985 to 1994, represents the fullest, most detailed look to date at the president's taxes, information he has kept from the public view.
The numbers show In 1985, Trump reported losses of $46.1 million from his core businesses, casinos, hotels, retail space, and apartment buildings.
They continue to lose money every year, totaling $1.17 billion in losses for the decade.
In fact, year after year, Trump appears to have lost more money than nearly any other individual American taxpayer.
The Times found when it compared his results with detailed information the IRS compiles on an annual sampling of high-income earners.
His core business losses in 1990 and 1991, more than $250 million each year, were more than double those of the nearest taxpayers in the IRS information for those years.
Overall, Trump lost so much money that he was able to avoid paying income taxes for 8 of the 10 years.
It is not known whether the IRS later required changes after audits.
The White House's response to the findings has shifted over time.
Several weeks ago, a senior official issued a statement saying the president got massive depreciation in tax shelter because of large-scale construction and subsidized developments.
This is why the president has always scoffed at the tax system and said you need to change the tax laws.
On Saturday, A lawyer for the president wrote the tax information was demonstrably false and that the paper's statements about the president's tax returns and businesses from 30 years ago are highly inaccurate.
And then he added the IRS transcripts, particularly before the days of electronic filing, are notoriously inaccurate and would not be able to provide a reasonable picture of any taxpayer's return.
So a couple of things here.
Number one.
So what?
Number two, when it comes to the president's image, I love they say he has a self-spun image as this great dealmaker and very rich man.
Really, was it self-spun or did some people help him out in the media, guys?
There are a lot of people who portray themselves as very wealthy, who are not in fact very wealthy.
It's actually a fairly regular thing in the United States, in Europe as well.
A lot of people who are bankrupt, who have yachts.
But, does that mean that the press didn't help him out?
NBC put him on air for years, claiming that he was the greatest businessman in America.
If it had not been for The Apprentice, Donald Trump is probably not president right now.
And now you guys are like, wow, Donald Trump, what a con man.
I'm sure you got him.
Now, President Trump, this does answer the question as to why President Trump doesn't want his tax returns released.
It's always what I had thought, and I had been positing for years.
The president doesn't want his tax returns out there because he's not as rich as he says he is.
He's not worth $10 billion.
He may not even be worth $1 billion.
Does that matter at this point?
The answer, of course, is no.
The president, though, has tied his ego to the public perception of his wealth.
And so he tweets out, real estate developers in the 1980s and 1990s, more than 30 years ago, were entitled to massive write-offs and depreciation, which would, if one was actively building, show losses and tax losses in almost all cases.
Much was non-monetary.
Sometimes considered tax shelter, you would get it by building or even buying.
You always wanted to show losses for tax purposes.
Almost all real estate developers did, and often renegotiate with banks.
It was sport.
Additionally, the very old information put out is a highly inaccurate fake news hit job.
He's gonna have to choose between it's inaccurate, and also I did all these things.
Also, he's gonna have to choose between, yes, I was using legitimate tax shelters, and two, I was exaggerating my losses for purposes of taxes, which would be tax fraud.
Suffice it to say, None of this is going to damage the president in any serious way.
And the fact that Democrats continue to pretend that yelling at Trump about his wealth is somehow going to take him down is really, really silly.
It's really absurd.
All right.
Time for some things I like and then some things that I hate.
So things that I like.
I have started watching the HBO series Chernobyl, which is about, of course, the Chernobyl incident from the 1980s in the Soviet Union, a nuclear meltdown that has provided the impetus for a slowdown in the building of nuclear One of the good we did.
power plants, which is absurd.
If you are involved in the Green Movement, if you would like a Green New Deal, the first place you should begin is with nuclear power plants that represent a great plurality of the power provided in, for example, France.
The reason Chernobyl melted down is because it was in one of the worst places on planet Earth, the Soviet Union, and was botched from beginning to end.
But the series itself basically shows that.
Here's a little bit of the preview for Chernobyl.
See, a just world is a sane world.
There was nothing sane about Chernobyl.
I'm pleased to report that the situation in Chernobyl is stable.
In terms of radiation, I'm told it's the equivalent of a chest x-ray.
No.
Chernobyl is on fire.
And every atom of uranium is like a bullet.
Penetrating everything in its path.
Metal.
Concrete.
It's really horrifying.
And again, it demonstrates that third world countries, the USSR was treated as a developed nation because it spends all of its income on weaponry pointed at the United States.
But the fact is that the Soviet Union effectively was a third world country.
And this was proof of it.
The fact that environmentalists have used Chernobyl or Three Mile Island as an example of why nuclear power should no longer be engaged in is true foolishness.
Again, there's communist nations not famous for running well.
Okay, other things that I like today.
So, Georgia has now passed the Right to Life Act.
It prevents abortion.
It's basically a heartbeat bill.
It prevents abortion after the sixth week, which is when a heartbeat can usually first be detected.
Here is Governor Brian Kemp, the legitimate, duly elected governor of Georgia, Stacey Abrams, talking about the Right to Life Act.
This deserves all of our applause.
Some may challenge it in the court of law, but our job is to do what is right, not what is easy.
We are called to be strong and courageous.
And we will not back down.
We will always continue to fight for life.
OK, so this is great stuff.
Amazingly, of course, you have the entire left unified in outrage that babies are being saved.
So you've got Alexander Ocasio-Cortez tweeting out, six weeks pregnant equals two weeks late on your period.
Well, if you consider a pregnancy the equivalent, the moral equivalent of just being late on your period, I have something called science to show you.
This is a developing human life by every scientific measure.
It says most of the men writing these bills don't know the first thing about a woman's body outside of the things they want from it.
I've always found this contention particularly odd.
That what men desperately want from women is for them to be pregnant.
That the sexist men, what they desperately want is for women to be pregnant.
That's why men go to strip clubs with pregnant ladies, obviously.
Men love when women are pregnant.
Just their favorite thing in the world.
This is one of the dumber contentions that the left makes all the time.
First of all, this bill was written by three women.
She also says it's relatively common for a woman to have a late period and not be pregnant.
So this is a backdoor ban.
It's not a backdoor ban.
It's a ban.
Pretty front door, actually.
Like, they're just saying it.
As far as the idea that women need more time to detect whether they're pregnant so they can kill that baby, I'm pretty certain that the pro-lifers are not concerned with when a woman becomes aware that she is pregnant as much as they are with the protection of the unborn fetus.
It is also worth noting that by this point in the pregnancy, There are arms and legs forming, fingers and toes, and a heartbeat.
The moral blindness of all of this is truly astonishing.
It truly is.
But I guess that you can convince yourself of anything if you're on the hardcore left.
So, Christine Quinn, who's a pro-choice activist on the exorable Chris Cuomo's CNN show.
Chris Cuomo is a super objective journalist.
He loves journalism, just everywhere he journalisms.
Christine Quinn says, that's not a human being inside a pregnant woman.
I think she's been watching Alien too many times.
When a woman gets pregnant, that is not a human being inside of her.
It's part of her body.
And this is about a woman having full agency and control of her body and making decisions about her body and what is part of her body with medical professionals.
Those are the facts and that is the law of the land.
Okay, this is the- It's not a part- It's a part of her body.
It's not an independent human life.
I mean, this is just absurd.
It's just absurd.
Okay, time for other things that I hate, because that is obviously a thing that I hate.
Seth Meyers is garbage.
Seth Meyers is, he's supposed to be a comedian.
He's not a comedian.
He's a late night propagandist for the DNC.
He used to write comedy for Barack Obama.
So this is not somebody who's a comedian, first and foremost.
At one time, he was somewhat funny as the weekly correspondent on Saturday Night Live.
No longer.
He has not been for a long while.
Last night he interviewed Meghan McCain and decided to attack her.
Why?
Because Meghan McCain had quoted Ilhan Omar.
And that's very bad according to Seth Meyers.
Here is Seth Meyers with Meghan McCain who treats him with the appropriate amount of outrage and disdain.
Meghan McCain is doing yeoman's work out there.
Here is Seth Meyers making a fool of himself and Meghan McCain properly demonstrating this.
Is there a way for people to talk about differences in Israeli policy without getting framed as anti-semitic language?
Yeah, I just think you can't talk about Jews hypnotizing the world, talking about all about the Benjamins.
You do keep bringing up the two tweets that she's apologized for, and I think that's a little unfair to her, especially because we've established... Are you a publicist?
What?
Are you her press person?
No, I'm just someone who cares about the fact that there's someone out there who is in a minority, who has had death threats against her, and I think that we should all use the same language that you're asking her to be careful about her language, and I would ask everybody else to be careful about theirs.
Okay, you have to be careful about your language.
Really careful about your language.
She needs to be careful about her language and she's apologized.
First of all, she did not apologize for her latest round of anti-Semitism.
She sided with Hamas during the last outbreak of violence in the Gaza Strip.
She has refused to apologize several times for many of her remarks.
Including her downplaying of 9-11.
Seth Meyers doing this kind of woke scold.
Be careful about your language, Meghan McCain.
She quoted Ilhan Omar.
That is not the same thing as Ilhan Omar saying that the Jews hypnotized the world.
Or that people who are pro-Israel are suffering from dual loyalty.
Or that Americans are pro-Israel because of Jew money.
And it's not the same thing.
Ilhan Omar said a bunch of bad stuff.
She continues to say bad stuff.
She downplayed terrorism in 2016 and 2013.
She made light of 9-11, on tape, in front of an organization that was an unincited co-conspirator in the Holy Land Foundation terrorism trial.
And here is Seth Meyers, supposed comedian, lecturing... You know, I just have to lecture you, Meghan McCain, about your very bad language.
Because, you know, she's been the victim of death threats.
And if you quote her... I have a question.
Really, true question.
So last week, the FBI arrested a human.
They arrested a human because this human was making overt death threats against people ranging from Jared Kushner to Donald Trump Jr.
Some of these death threats were directly, directly sent to me, right?
I mean, they were sent at me.
They were sent to one of my employees.
They directly said that this person wanted to blow my brains out.
This person was posting publicly that somebody should kill me.
And if you go check, The 8chan boards on this guy.
Go check the Reddit boards on this guy.
All the comments underneath are, well, this guy just shouldn't have said this publicly.
He should have just gone and done it.
We'd all know why he had done it.
If he had shot Shapiro.
It's funny, I have not received a single question from, I have a lot of friends who work in mainstream media.
I have not received a question, not one, zero questions from anybody in the mainstream media about inciting, about incitement and inciting language against me that results in that sort of death threat.
Not one.
Incredible.
Where are they?
I mean, I thought that if you say bad stuff about somebody, then that's incitement of violence against them.
That's what I learned from Ilhan Omar.
That's what I've learned, that Donald Trump quoting her is an incitement of violence against her.
Because she's received death threats, so you shut your face.
And yet, when I receive not only a death threat, a death threat so bad that the FBI gets involved and then arrests somebody, When I receive that sort of death, when I have full, round-the-clock security, full-time, I have full, around-the-clock security all the time.
So just note to people who would potentially try to hurt me or my family, you do that, you're getting shot.
I've got full, around-the-clock security, full-time, because of death threats.
And yet, the media have asked not a question, a question about incitement, which suggests to me that they don't actually give a damn about incitement.
They gave a damn about incitement.
Al Sharpton would not be sitting on MSNBC.
Al Sharpton was involved linguistically in helping to incite a riot in Crown Heights against Jews in 1991 and incite the burning down of Freddie's fashion mart in New York City.
And he sits on MSNBC right now.
We didn't have a conversation about Bernie Sanders inciting violence after the congressional baseball shooting, did we?
Or Barack Obama inciting violence after the Dallas police shooting?
I have a very clear standard.
I think when people criticize me, it's not incitement.
I think when people suggest I should be shot, that is incitement.
But Seth Meyers doesn't have that standard.
Seth Meyers' standard is, if you criticize Ilhan Omar, you are responsible for violent death threats against her.
That's a bunch of crap.
It's a bunch of nonsense.
And he knows it's nonsense.
And the fact that he's accusing Meghan McCain, who has fought against President Trump's originally stated Muslim ban.
His actual ban on immigration is not a Muslim ban.
Only five of the seven countries named on that ban, legally speaking, are Muslim.
Most Muslim countries still can send people here, obviously.
But his originally stated statement about, we need a shutdown on Muslim immigration, all of that, Meghan McCain opposed that.
Meghan McCain, as far as I know, defended Ilhan Omar's right to wear hijab on the floor, and the congressional rules were changed because of that.
So did I. But Meghan McCain is an Islamophobe, according to Seth Meyers, who incites violence because he likes Ilhan Omar.
Now, why are members of the Democratic Party doing this?
Why are Democratic hacks, partisan tools, like Seth Meyers, doing this sort of thing?
Unfunny claptor advocates?
Why are they doing this?
Because here is the dirty little secret about the Democratic Party and anti-Semitism.
They do not give a damn, so long as they are politically allied with the anti-Semites.
They do not care, which is why all 20 Democratic presidential candidates said nothing as Hamas, a terrorist group that hates America and hates Israel and calls for the extermination of Jews across the world, fired 700 rockets into civilian areas.
Seth Meyers, you got anything to say about that?
About incitement?
About violence?
Nothing?
No, you're just mad at Meghan McCain?
Man, go perform some unspeakable acts on yourself, because that is just... What utter nonsense.
The reality is that the Democratic Party, and too many Democrats these days, are not willing to face up to the anti-Semitism in their own party, because they are perfectly comfortable with anti-Zionism, and are perfectly unwilling to condemn anti-Zionism as anti-Semitism, and they don't care if there are anti-Semites in their own party, ranging from Al Sharpton to Ilhan Omar to Rashida Tlaib.
They do not give any damns about that.
So long as they feel they can make hay while the sun shines.
If you're not willing to condemn anti-Semitism across the board, then you don't care about anti-Semitism.
And if you are playing active defense for Ilhan Omar and pretending that she... Oh, it's just a couple little tweets, guys.
It was just a couple... She backed Hamas in the latest Gaza conflict.
I don't know any other way to put that.
Every Democratic presidential candidate has said zero things about Israel's right to defend itself from attacks on civilian centers by a group that calls for genocide against Jews in their charter.
Yeah, I'm sure Seth Meyers takes incitement real seriously.
All right, we'll be back here a little bit later today for another two hours of content.
Otherwise, we'll catch you here tomorrow with more Breakdown.
This is The Ben Shapiro Show.
This is The Ben Shapiro Show.
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Edited by Adam Sajovic.
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The Ben Shapiro Show is a Daily Wire production.
Copyright, Daily Wire 2019.
I'm Michael Knowles, host of The Michael Knowles Show, breaking major New York Times investigative exclusive.
Donald Trump was poor in the late 80s and early 90s.
The only other way you could have found this breaking information is if you read the whole book he wrote about it, or watched even one episode of his show, or read any newspaper in the 90s.
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