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How the executive privilege claim figures into Jan. 6 probe


President Biden attended a ceremony today to honor fallen law enforcement officers. The ceremony was held outside on the West Lawn of the U.S. Capitol, the same place the president reminded his audience where the January 6 attack on the Capitol unfolded.


PRESIDENT JOE BIDEN: Here, nine months ago, your brothers and sisters thwarted an unconstitutional and fundamentally un-American attack on a nation's values and our votes. Because of you, democracy survived.

MARTIN: Last night, the president said he thinks those who defy subpoenas from the House committee investigating the January 6 attack should be prosecuted and held accountable. The committee has issued subpoenas for several former Trump administration officials, seeking their testimony to determine what happened before, during and after the attack. But lawmakers are running into a roadblock - claims of executive privilege by the former president and his allies. It's a power not mentioned anywhere in the Constitution, but presidents have been refusing to share certain confidential information with Congress and the courts since the days of George Washington.

We wanted to hear more about the history of these claims as well as the merits of it in this case, so we called someone who's had to evaluate those issues at one point himself. That is Alberto Gonzales. He served as White House counsel and later attorney general in the George W. Bush administration. He's also a former judge. Currently, he's dean of the Belmont University College of Law in Nashville, Tenn., and he's with us now.

Dean Gonzales, thank you so much for joining us once again. Welcome back.

ALBERTO GONZALES: Always a pleasure.

MARTIN: So I'd like to start by getting your take on former President Trump's claim of executive privilege. Of course, as you know, as we've said, he's trying to keep documents from being released to the January 6 investigators in Congress. Now, Steve Bannon, who's a former strategist, has refused to testify, citing that claim by the former president. But Bannon wasn't even serving in the White House during the events under question. So just what's your first take on this claim from the former president?

GONZALES: Well, before I get to that, Michel, let me just say that, yes, the words executive privilege do not appear in the Constitution. But in the Nixon tapes case, it is the first time the Supreme Court of the United States did find that there - the privilege does exist. So even though Nixon lost that case, what was good for the executive branch and the presidency was a finding by the Supreme Court of the United States that executive privilege is a right the president of the United States has under the Constitution.

With respect to the claims made by former President Trump, I think we all need to understand that the executive privilege is not - you know, it's a qualified privilege. Even though you may assert privilege and there may be very important matters at stake with respect from the perspective of the president, there are competing interests, where the disclosure of the information - the court may find it outweighs the interest of the president in maintaining confidentiality - if the public interest are so great, as we might see in this particular example, when we're trying to get information about any kind of criminal activity or insurrection or - that we saw him say on January 6, I think the equities weigh very heavily on the side of disclosure, notwithstanding that executive privilege is a qualified privilege. It's not always going to be a winner in every case.

MARTIN: So going back to the case you cited, the U.S. v. Nixon, the court ruled that - the court cited executive privilege, as you just told us. But they did rule that President Nixon did have to hand over requested documents pertaining to the Watergate investigation. So does this case - does that case apply to the situation in your view?

GONZALES: Well, it's similar in that, again, there, you had a case where the court weighed the competing interests - the interests of the president to maintain a privilege so that he could have - he or she could have confidential, candid discussions with advisers and versus the need of the public to get information that otherwise cannot be obtained in any other way or is essential to an investigation. So for the public good, it's important to have access to that information.

MARTIN: And - well, and the Select Committee this week announced that it plans to charge Steve Bannon with criminal contempt for refusing to answer its subpoena. So do you have a sense of what happens next?

GONZALES: Well, it really - it sort of falls in the hands of the Department of Justice and the attorney general. Congress has the authority to pursue criminal contempt, but it needs cooperation of the executive branch in order to move that forward.

MARTIN: You know, you - one of the reasons we called you is that you have experience in evaluating issues like this from both the White House perspective and then from the Department of Justice perspective. Do you recall when you were in those roles - and I'm wondering whether the calculation changes, depending on whether you're in the White House or you're in the Department of Justice.

I mean, 'cause it sounds just - it sounds like there are legal considerations but there are also political considerations in the sense of timing and how long different strategies take to play out. So I guess what I'm wondering is who decides what's right here and what's the right thing to do and right according to what metric?

GONZALES: Well, I think, ultimately, you know, the attorney general will decide whether or not to move forward in terms of prosecuting the finding of contempt by the Congress. It is a criminal violation. And, you know, whether or not they'll consider the timing, what's the best strategy, I don't know if that's really a consideration for them other than, of course, this assessment as to whether or not are there other means for the Congress to get this information.

And I think they'll make the calculation that, you know, yes, they could try to get this information through the civil route, but that's going to take months. And there's a possibility that this investigation may not continue if Republicans win control of the House. This is important for the public to know. What happened on January 6 is of great public interest. And therefore, maybe this is the best way to get answers to what - to a very important question of interest to the American people.

MARTIN: Before we let you go, do you have a sense of - given that this is - this privilege is not in the Constitution, how did it become a legal concept that presidents now routinely claim?

GONZALES: Well, of course, the courts often find implied rights in the Constitution. The right of privacy, for example, is not written in the Constitution. But through court decisions, that right becomes a constitutional right, you know? It is why the Supreme Court appointments and confirmations are so important because the ability of nine individuals to simply decide that a right exists in the Constitution, even though that right isn't explicitly recognized, I mean, that's a great deal of power. And that's why the Supreme Court nominations and confirmations are so important.

MARTIN: That was former United States Attorney General Alberto Gonzales. He served during the administration of George W. Bush, and he was also White House counsel then. He's now dean of the Belmont University College of Law. Dean Gonzales, thank you so much for talking with us once again.

GONZALES: Thanks for having me. Transcript provided by NPR, Copyright NPR.