Selects: What's the deal with subpoenas?

How to everybody.

I'm just staring at this subpoena on my desk that I'm going to ignore because I don't care about the rule of law.

This, Chuck.

It's Saturday, and from October twenty nineteen, we are replaying this episode about subpoenas. It's called What's the Deal with Subpoenas? Or, as Jerry Seinfeld might say, h what's the deal with subpoenas? That's my best Jerry Seinfeld. I hope you enjoyed it.

Welcome to Stuff you should know, a production of iHeartRadio.

Hey, welcome to the podcast.

I'm Josh Clark, and there's Charles w Chuck Bryant, and there's Jerry Jerome Rowland over there, the Legal Eagles of podcasting.

Ooh, can I be Daryl Hannah?

Yes, I call Barbara Hershey.

I don't think so.

Who was it, oh, Legal Eagles? I know Deborah Winger? Yes, was Daryl Hannah even in that now.

Yeah, she was the client of Deborah Winger.

Okay, and you're not Redford?

No, they always have to be Redford. Everybody's always like that. Guy's a regular Robert Redford. He'll play him in this scenario.

Right, that's that's the street chatter.

Yeah.

Can I still be Barbara Hershey even though she wasn't in the movie. Sure, I think I'm thinking of beaches.

Oh well, that means I get to be Bette Midler, right.

I wonder how many podsave America listeners we just lost to it just casually decided to give us a chance.

I want to learn about subpoenas, all right. Before we get going, though, can we.

Quickly thank the cities of Orlando and Greater Orlando and Florida and New Orleans and Greater Louisiana. Yes, for two fun live shows.

Yeah, those were a lot of fun. Let's see.

We did Orlando on October ninth, I think, and then the tenth for New Orleans. Regardless, it was night back to back, two fun filled nights, and they were just both the main shows.

Yeah.

And when this comes out, I think New York will have been over. So thank you New York.

Oh yeah, yeah, we we presume it's going to have been a great time that three night run at the Bellhouse.

They're always great there.

And that's it too.

That's it for us for the for the year, Chuck, So I mean thank you to everybody who came out to see our shows this year.

Yeah, can we go ahead and tease our our January schedule for should we not?

I think we can sure?

All right, well, well.

We're hoping to be back at sketch Fest again. And then what did we settle on?

We I don't know settling is the right way to put it up. We decided between the Seattle. We're doing Seattle, oh we are, yeah, and normally for a January swing we do Portland Seattle sketch Fest. Right, Well, we've got the iHeart Radio Awards in there in Los Angeles and we just you know, kind of have to go to that. No, sorry, the iHeart Podcast Awards. They don't care about us at all at the radio now.

We can't even get in that building.

Right exactly.

So we said, okay, well we gotta we gotta pull out one of our shows because we're old men and we just can't spend that much time on the road. So instead we're going to take Portland and put it with another town in the spring.

So don't worry Portland, we will be out there.

Maybe maybe the Cove.

That's what that's the talk, that's the chatter around town.

But we have no dates confirmed yet. But this just look for us again in the Pacific Northwest at the beginning of the year.

That's a much better way to put it.

Yeah, So, do you want to talk about subpoenas You got any other housekeeping to do?

I don't think so. Subpoenas weird spelling.

Well, yeah, so I looked up the word subpoena is actually two words. It means under penalty, and it's typically the first two words that were read in this rid of subpoena, basically saying under penalty.

Of blah blah blah.

Yeah.

I was thinking all I could think about is really dirty but dark stuff.

Oh yeah, yeah, so I just.

Let you fill in the blah blah blah. But anyway, under penalty of whatever, you need to do one of two things. And there are two types of subpoenas that everybody you know, everybody hears subpoena and you think, like Law and Order, Maybe visions of Central Park run through your head because that's your only exposure to Central Park is from Law and Order.

Yeah, or you think of the US government because a lot of this is going to be about congressional subpoenas because that's really the juiciest subpoena.

Yeah, that's It's not like it's new that Congress has just recently started issuing subpoenas. It's new in the conscious of America in this age, this generation.

I mean, it's been going on for a while.

But normally when people think subpoenas, until like basically twenty seventeen, sixteen eighteen, not necessarily in that order, most people thought of courtroom subpoenas, and that is, you know, typically the subpoena most people are ever going to come up against in their lifetime.

That's right.

But you mentioned the two types. Do you want to break out your Latin or shall.

I you take the first, I'll take the second.

Oh okay, the first one's easy.

The first one is subpoena add testify candem.

Wow did you see that? You just made a mouse appear and run out of the room. The next one so so sorry. The first one, the one you just said.

That means you got to come to court.

You just nailed it.

Yeah, it says that you have to come and testify, and you might not be a party to the lawsuit like this is. It can be a civil case or a criminal case, that's a big thing to point out, but basically it's saying, you have some information. You witnessed an act, you overheard a conversation, the defendant confessed something to you. We need you to come to court and tell your story. And that's what that first subpoena is saying to do.

Yeah, and not necessarily court court, but it can be any kind of legal authority.

Yeah, it could be a deposition, it could be an arbitration, but typically it's the authority of a court of law to basically say we're going to levy a fine against you, or we're going to arrest you and put you in jail if you don't listen. That's that's used to kind

You have a computer.

Or a computer hard drive, you know, something like that that we want you to produce because we want to use it as evidence. And there's a really important point to put here, Like a court is saying, a court or an official of the court or of the government is saying, we want you to do this because we have this lawsuit going on and you have something we need. But it's not necessarily the judge saying, and the judge

And then the judge says, speak to my clerk, and then the clerk of the usually the clerk of the judge who's.

Handling that case, they say, talk to the hand.

Yeah, and they'll generally issue it on on like official court letterhead and official documentation. It's not like the judge is washing their hands of it necessarily.

No, No, I'm sure like if they do something egregiously wrong, the judge is going to hear about it and punish them.

That's right. And then it served usually in person kind of you know, handed to you like on the TV shows and in the movies.

Yeah, either by a sheriff's deputy or a process server.

Yeah, but not always.

It depends on if it's congressional or if it's you know, civil regular Joshmo stuff.

Yeah. Well, yeah for sure.

But I think even if it is regular civil joshmost stuff, you can still go higher the sheriff's department to serve papers.

To serve a subpoena, oh for sure.

I think the congressional ones are not served by a shriff.

Oh, I see, who do they use?

I think it depends it could.

I mean the way congressional subpoena's work is all sort of dependent on the individual committee that's seeking that subpoena. So they all have their own individual rules about like whether you need a majority vote to even get a subpoena, or whether the chair of that committee is, you know, has the power to grant or request a subpoena.

Right, I've read some of them know that it's a real downer to get a subpoena. Say, some congressional committees use that mascot from the nineteen eighty four Olympics, the Eagle, to come issue your.

Papers to you.

I don't remember that one.

You don't remember that eagle.

Now it's like a cartoon eagle from nineteen eighty four.

Yeah, I mean all I can.

I can't get past the Atlanta Olympics mascot. That's why I can't get back to nineteen eighty four?

Was it? What's it? Or who's it?

Oh? I don't even know.

It was one of those too. What was that thing?

I don't know.

It was a last last minute thing.

What was the name it was?

What's it? Or who's it? Was it?

Yes?

Yes, man, it was bad. I was out of town. I fled.

You didn't miss anything.

But I do remember watching the opening whatever they're called, the opening ceremonies, Opening ceremonies, right, and seeing the stainless steel pickup trucks driving around and just thinking, oh boy.

Yeah.

And for those of you who are like, they've talked about this before, we have. Yeah, we have, and we're still that upset about it.

We'll talk about it again in five more years.

We haven't forgotten.

Yeah, stainless steel pickup trucks. They haunt me. I have dreams about those trucks.

Yeah, they're just circling you, playing striper at the loudest possible volume. Oh man, Okay, So we've got different kinds of subpoenas, but both of them apply to either courts of law or Congress. So there's one big question that most people who get a subpoena ask themselves the moment they're served the paper, and that is, can I ignore this thing?

Do I have to do this right?

What happens to me if I just pretend like I never got this? And that's really tough to do. I was reading about process servers and the people who are issuing the subpoena or the lawyer who's asking for the subpoena to say, they want some sort of proof that

They'll stick their hands in their ears and go.

La la la la la la.

Right, exactly, they'll do a lot of stuff to keep from being served, but that's actually it will.

Just delay being served.

In the long run, you will still there's other remedies they can use. They can mail it to your house certified mail. And if the male person says this was dropped off, it made it to their house, that's enough. Or if you can say I took the numbers off my mailbox, what are you going to do now, chump. They can actually post an ad in the local legal organ the newspaper, and then that will be considered serving you.

Yeah, I mean it says here in this article, which most of this is from the House Stuff Works article about saboenas, but it says, you know, it's a lot easier if you just go right or produce the documents. But we'll cover here in a lot of this congressional oversight stuff that is not the route that people take generally in government.

Yeah, and I thought it was kind of an oversight to not say like, but also if somebody serves you with a subpoena, like go, you don't necessarily have to hire a lawyer, but at least consult with one, like get some legal advice, say this is what I got. You know, what should I do with this?

Is this?

You know, you know, there's a lot of questions that you should have answered before you just act on a subpoena.

Yeah, and you know, when it comes to ignoring subpoenas, and that's what a lot.

Of this will be about.

Is what's going on with our government right now and previously and what happens if you defy Congress And is there any accountability for that or can you just sit on your hands say nope.

But there have been some very.

Famous cases in the past, you know, fifteen years or so where subpoenas have been ignored, starting well, not starting with but we can start with Eric Holder, Attorney General for Barack Obama.

Yeah, that was a big one.

That was part of the Operation the Fast and Furious scandal scandal.

Yeah, it was definitely a scandal. From what I remember, it involved like secret gun sales or else. Some guns were led out into the community to be traced to see who they went. To and one of them ended up being used to murder an ice officer, I believe well.

Attorney General Eric Holder refused, under direction of Obama, to answer that subpoena, and he became the first sitting cabinet member to be voted in contempt of Congress.

Oh was that right?

Yeah?

And you know you're like, oh, what happens in well, three and a half years later a judge ruled that he did not have the right to defy Congress, and by that time there was a new Congress, and it was a mood point.

That's a really big big thing to remember. Is like an eempt of Congress vote where you are supposedly in trouble for ignoring a subpoena, only lasts as long as that session of Congress.

Unless the next session of Congress wants to pick it up.

Yes, but then they have to hold another vote. And the chances that that the that there has been a change in leadership potentially in that Congress is you know, high enough that if you if you make it through that Congress, you know going into recess, you you're probably going to get away with it. And I mean that's par for the course. It wasn't just Eric Holder who got away with it. Harriet Myers, who was a White House counsel to George W.

Bush.

There was like a mass political firing of US attorneys.

Yeah, and two thousand and eight yep.

And she and I think chief of staff at the time, Joshua Bolton, were both held in contempt of Congress. And man, if you look up, like you know, follow up reporting on this stuff, it's like, you know, while it's going on, they're like they could face fines, jail time. Finally I found some follow up as like nothing nothing happened, Absolutely nothing happened. There was no legal ramifications, there were no

And because of this, you remember Representative darryl Isa probably by name. He was involved in trying to get Eric Holder, you know, in the room, and he was so mad he sponsored or intro to bill to strengthen subpoena enforcement power, and it died in the Senate, and before we I think we're about to take a break.

Before we do that, though, we should.

Mention that currently White House Counsel Don McGann has refused to testify or refused to answer his subpoena under direct order of Trump, and right now he's being sued by the House right of August.

And he in particular provides an unusual situation because at least with Harriet Myers, or with Joshua Bolton, or with Eric Holder, when they were directed by the President at the time not to submit to that subpoena from Congress, they were part of the president's staff. Don McGann was instructed not to not to cooperate with the subpoena after he had already left civil service. He was no longer part of the executive branch. So that definitely makes it unusual.

Law Josh.

So Chuck, there's something about subpoenas, whether they're issued by Congress or by a court of law, when you get them that a lot of people don't realize they're negotiable. Yeah, that's one really big reason to hire a lawyer is because they it may be overly broad, it may be kind of a phishing expedition. It may put you at risk to come forward and give this testimony or to

Will that satisfy you?

And then I go nope.

Sometimes I say yes, though, and part of that negotiation comes out of this subpoena process. It's a response to it. But none of it would have any effect whatsoever if Congress didn't have any redress for enforcing its subpoenas. If somebody ignores it.

Yeah, I mean, technically there are fines in jail time sort of looming. But the more I read about this stuff, especially when it comes to Congressional oversight, the more it became clear that none of that stuff really happens. It's all just dangled out there as a means to negotiate something with each other over a pretty long period of time usually for sure.

Yeah, that Eric Holder thing was it was like four years before he finally handed over the file, and I think Congress had already gone out a session, you said, And it was basically just the whole thing had died down, which I think is basically the stalling tactic that people ignore subpoenas for like that's why they're doing it.

Yeah.

So technically, if you defy Congress, the committee that issued that subpoena is going to vote to issue a citation, a contempt citation, and then it's got to go to the full chamber to vote on it. And if that goes through and it passes, which it has before, then there are three basic ways that you can prosecute that.

Charge, right, and each one is worthless. Yeah, pretty much like this is. We would never give official legal advice. First of all, we're not lawyers or even trained as lawyers. But from what I can tell, there's just nothing happens to you if you ignore a congressional subpoena. But most people respond to it because I feel like the further down the food chain you are, the more likely Congress is to do something in retaliation to you.

Yeah, well, let's go through the three at least fine, if for no other reason than pure folly. So if they vote and that contempt citation goes through, it is then under the control of the executive branch. And you think, oh great the president or oh great the president, it's really neither. It is the Justice Department, which is part

Right.

So that is specifically when it comes to subpoenaing something from the White House correct or the executive bridge. Now, if Congress is being ignored by, say like the owner of the Houston Astros, they can go to the DOJ and say, hey, the Houston Astros baseball team owner is ignoring a subpoena. We want you to go after the guy,

Matter Number two is the civil judgment, right, and that's when you need the courts to basically enforce this. Go into court and saying we need your help to enforce this civil suit against somebody who's stiffed us.

Right, Like, you know how you can go arrest somebody and put him in jail? Can you do that on our behalf? Basically?

But this is super slow, like turtle like slow.

Yeah.

But I think the idea is that the thought that maybe somewhere a couple of years down the line, there's going to be a judgment against you where you're going to have to pay one hundred thousand dollars to Congress or something like that, or spend like twelve months in jail will get you to the table to negotiate you know, what documents they actually want or what testimony they want.

Yeah, it's just leverage, right. So the third one is something that isn't used anymore.

Really.

It's called inherent contempt power. It was last yused in nineteen thirty five. And this is you know, this is sort of the jail thing. And while there is no capital jail, they do have a holding cell.

Yeah, and like the sergeant at arms of the Senate or the House, depending on who's issuing the subpoena and who voted to told you in contempt an armed officer of the Congress will show up and say you're under arrest.

With that, yeah, I would think. So hit them in the pocketbook, yeah, I.

Mean that hard's and it pluses the government too. So it's like, hey, you know these tax credits you're getting, were taking those away and this tax return that you were expecting, we're going to hang on to that Like that's this is where they could actually do something.

Yeah, I think so.

If it's not a congressional subpoena, if it's just like we're talking about a regular court subpoena, it all depends and what jurisdiction you're in, and the presiding Chudge that's on that case.

Yes, but again, because you can be arrested as a matter of routine course of a court, you really should respond at least to a subpoena or else. You know, the chances of something happening to you from a court of law are much higher than Congress apparently.

Sure, so can we talk about case law?

Yes, finally we got all that boring stuff out of the way.

Yeah, this first one is kind of interesting. And the way the judiciary works in this country is just super fascinating to me. The older I get, the more I read about it. I'm not becoming a legal wonk by.

Any means illegal legal, but I get.

It, Like, you know, I get it that people are super into this kind of thing.

I hadn't realized you've gotten into the judiciary.

Yeah, I think it's pretty fascinating.

What got you into it? Just like news following the news or something or uh.

Yeah, And it's just sort of reading about a case like in this case from eighteen hundred, and then you know precedent and what that means, right, and when it shouldn't matter and should matter.

Like the one from eighteen hundred you're talking about is US v. Cooper.

Yeah, Thomas Cooper, who was a scientist and an attorney and a thorn in the side of President John Adams right in a big way.

Yeah.

So, in I think seventeen ninety eight, Yeah, the US passed the Sedition Act, which said that it's illegal to criticize the US government.

Yeah.

Unfortunately, when Thomas Jefferson came into office, he said, we're gonna kind of do away with that and keep it away forever as much as we can. But there was a guy named Thomas Cooper, who, like you said, was a thorn in the side of John Adams, and he was arrested and prosecuted during a time when the Sedition Act was still in effect, and he lost his case. But the way that it relates to subpoenas an ignoring

They don't have to.

Come right, But that same case is said, but you can subpoena it's someone from Congress.

That's a big one too.

That was a big one Cooper. It didn't work out for Cooper, like you said, he was convicted. So none of that mattered except for establishing this president president president.

You got it in this case. You could say it either way.

I guess. So. So that moves us on to seven years later US v. Burr.

This is John Marshall. Chief Justice John Marshall headed this one up and basically this had to deal with President Thomas Jefferson saying, hey, they want you to come to provide these documents.

It was a Doozy's teacom, right, du says, c's doc's Ducy's teacum.

And Jefferson was like, hey, here are some of those documents that you want, and they're like, but where the rest of them? He was like, you know, I'm not going to give you those and I'm also not going to show up because you know what, I got to be presidenting.

Yeah, I'm the executive branch is too powerful and too or no, too important. It's the only branch that's supposed to be open twenty four seven, three sixty five. Yeah, and I just can't get away, like I'm my work is too important to come be part of this, and that gets think.

Gets less and less able to prove these days, I think, yeah, for sure.

Like you could take off, I have a day, right, you got a BlackBerry, you can definitely email, keep tabs on work while you're gone.

But yeah, so I thought the same thing too.

That does not hold water, but it does set a president for the president, like you were saying too in those two cases basically say together again, the president doesn't have to come be part of this, and executive privilege is I guess where this came from from this particular case where it's saying like, no, the president doesn't have to have anything to do with this, and the president's documents or the president's business and can't be subpoenaed because

Right, And there are five basically five types generally of executive privilege that have been used thus far. One is presidential communications. Number two is the deliberative process. Number three is attorney client communications, Big one. Fourth one is law enforcement investigations. And the fifth one is anything that's sensitive in terms of military or national security or diplomatic relations, that kind of thing.

And that's the one in particular that has been upheld over the years.

It's the idea that.

Like, there are secrets that the White House has that it just need to be kept or else people are going to lose their lives or else diplomatic ties are going to be upset, that kind of stuff, and so those should be protected under executive privilege. But the rest of the stuff has been subject to scrutiny over the years, for sure.

Yeah, because obviously an executive a president is going to try and draw that privilege as broadly as possible.

Oh yeah, for sure.

And that's especially been the case ever since Nixon onward, at least, where there's this idea called the unitary executive theory, which is basically, like, you know, these are separate branches of government, and the executive branch is in charge of everything to do with the executive branch has, it's none

Of them, you know what I mean. Yeah, So it's very dangerous.

It also very much flies in the face of the three branches of government and the checks and balances that each one's supposed to have over the other. Yes, because part of Congress's role is what's called congressional oversight.

Yep.

That says we're responsible for making sure you're not getting out of control the president. The executive branch has veto power saying Congress, you guys are nuts, this is no law that should be passed.

I'm going to say no to this law. And then the judiciary has judicial review.

They get to say this law is unjust or this executive agency's action is illegal. And by doing this, these three branches keep one another from getting too strong. And the unitary executive theory flies in the face of that and says, no, the executive branch is more powerful than.

All of them. The other two don't have checks over them, and let's just see what happens from here.

That's right. Should we talk about Watergate?

Yeah?

So everyone, we should do a full episode on Watergate. I think I've said that before. I agree, but everyone knows what happened there. President Nixon was involved in some hinky activities and congressional committees. There was one special prosecutor in particular named Archibald Cox, who said, wait a minute, you've got these secret tapes. You've been taping people in the Oval office turn them over. Here's a subpoena. We demand that you turn that over along with some other stuff.

It's like the videotape of the guy who got the high score in Donkey Kong.

Right, yeah, you know what I mean.

But executive privilege was what he claimed he was protected by.

It seems like, yeah, and I think they did a very good job. And the fact that it was unanimous. I think Rehnquist was involved with some of the people involved, so he recused himself from voting, but it was unanimous eight to zero vote saying no, you got to hand the tapes over because we don't think that you're just trying to protect like intelligent secrets or military secrets or

Well, I wanted to mention another quick thing before you dive into Marbury another case usv.

At and T.

This just basically laid out that the courts are only going to get involved if everyone really tried in good faith to work it out beforehand.

Basically said, we're the last stop here.

Don't just go run into the Supreme Court or the courts in general to figure this stuff out for you.

Right, Although I think the Constitution says that the Supreme Court are the ones who are supposed to be running the show when it comes to like a high enough official. A case regarding a high enough official, Oh.

Yeah, all At and T.

The case said was you have to really try to work it out amongst yourself before it even gets to us.

Oh gotcha. Okay, yeah, I gotcha. I see, I see what you're saying. Yeah yeah.

So good faith, of course, is broadly defined too.

So in Marborie versus Madison, that one basically said, hey, there's this one component here.

Yes, the.

We've established that the legislative branch Congress can issue subpoenas and that the executive branch can exert executive privilege and say no toe some subpoenas under some cases. But we're also going to say In US v. Nixon in nineteen seventy four, that the court can say, no, your right to secrecy is overshadowed by a right to do process in most cases.

But the one that really says at the center of.

This is the judiciary, and that the judiciary has a right to decide cases where the legislative and executive branches are in dispute. Is this Marbury versus Madison case from I think eighteen oh four, and it was, from what I understand, a masterstroke of legal eagleness by Justice John Marshall.

Yeah.

So is the long and short of that one that Secretary of Saint James Madison he was trying to withhold the commission of William Marbury.

Was that the case?

Yeah, because the outgoing Adams had packed the courts with friendly judges, the commissions had not all been mailed out, and Madison was withholding some.

And they basically said, listen, man, you can't do this like it is your job. You shall commission all the officers of the United States. It's like right there in black and white, and you lose, right.

So that was one part of it.

But what Marshall figured out and what made this a master stroke of legal legalness, is that the there was a something called a writ of mandamus, which basically says you have to do this, which had been granted to the Supreme Court in the like an Act in seventeen eighty nine. Marshall said, so, yes, Madison has to give this over like, this is just part of his duties, and he's following a law that Congress made, so he's subject to that law as a minister of the government.

Yeah, which is I mean, that's a lot of what the Supreme Court decides is constitutionality.

And it all comes from that eighteen and oh four case.

Landmark Legal Legal. Should we take another break?

Sure?

Man, all right, we'll take another break and talk a little bit about a little bit more about Nixon and what some other presidents have done when slapped with a sabena right after that.

Jaw.

So we all know what happened to Nixon, what the Justice did rule that, Hey, dude, you got to comply with this Deucey's tectim here and you got to turn over these tapes.

So Nixon, uh turned over tapes.

He did, and it all worked out in the end. Everybody's like, this is what you were protecting. This is fine, man, stay president for a couple more terms. And he did, and the world was a better place.

For it, that's right. Flash forward to uh to Bill Clinton.

That was okay.

So he said, hey, listen, man.

What goes on and that's much better.

What happens in the Oval office stays in the oval office. Executive privilege. They're like even that stuff. And he said, well, you know, it's it's his executive privilege. Harika Panke falls under executive privileg So he said, I have executive unity, I have that privilege, and neither me nor my aides have to respond to these subpoenas. And then he fell into line eventually.

Due Gingrich got him into line.

Well, yeah, and largely because of US v. Nixon.

They said, you know what, you can't stand by this broad executive privilege, stand behind this wall that you've built.

You're going to have to comply. And he did eventually right.

Which is traditionally what happens, like the Congress issues subpoenas, is an executive branch ignores it. The Congress holds the executive branch and contempt, and the judiciary comes in and almost always says, no, you're over exerting your executive privilege to what they're saying.

Yeah, which you know that gives me hope because in the past president has been set that due process wins out over executive privilege kind of across the board, it seems like, but that that.

Only holds as long as two things are upheld. One that the Supreme Court is an independent body, regardless of who appointed the judges, and then two if the as long as the executive branch recognizes the authority of the Supreme Court.

This is where we are starting.

Like some people can see far enough along this horizon that hey, this path we're heading down right now, there's a point where we could reach where they could be. There could be a Supreme Court decision that says, yes, executive branch, you have to hand over these aids for testimony.

Then we have no idea.

Do you go arrest these you know, the secretary of the Treasury, Do you go arrest these cabinet members? This has never been done before, Like what remedy do you really have? And that's where that's where we are with testing out this unitary executive theory. How far can you kick the the kind of unwritten rules of the constitution. Well, there's lots of written rules with constitution, but also like the the unwritten rules and procedures that kind of have

What do you do?

Well?

I don't know because in the in the past, through our history, and this is on both sides of the of the Isle, Democrats and Republicans have always not successfully, but they've always tried to argue that court should not get in the subpoena battles and should not get involved with this executive privileged claim right.

And in particular, Trump's latest Trump's Legal Council's latest position, which I think came out in September of this year, is it's a doozy.

It basically takes And here's here's.

Something we need to remember here, Like this is not brand new with Donald Trump, right, Like if you if you can't stand Donald Trump, this is this is his White House. His administration is building on stuff that previous presidents have built on both Democrats and Republicans alike. There has been a real push, basically since Nixon, to to instill as much power into the presidency and the executive branch as possible, and this is an extreme version of that,

That's where it ends. Because the president can say, well, this is an inter branch dispute between the legislative branch and the executive branch. And because the.

Judiciary can't be drafted or shouldn't be drafted in to solve these disputes, that's all it will remain is an inner branch dispute, and the Supreme Court really has no purview in deciding these cases. And when you have that, then that means that the executive branch has been removed from the oversight of law law. It becomes above the law, The law no longer applies to it, and so whatever

Yeah, I mean, this is what the Justice Department.

There was a great article in the Washington Post by Harry Littman called the Justice Department's outlandish and arrogant position on congressional subpoenas, And this is from the article. It said, according to the Justice Department, there is no constitutional or statutory basis for a congressional committee to try to enforce his subpoenas in the federal courts where the executive branch has decided not to do so.

Right, So basically, yeah, they said no, and so they said no.

And all of this arose from an opinion regarding Trump's tax returns, I believe.

Yeah, that's sort of where the whole thing got started.

Yeah, where the Treasury Secretary, Stephen Mnushin said no, we're not doing that, and Congress said, well, we're holding you in contempt. And then the Legal Office of Legal counsel from the White House issued this opinion, and I mean it's a doozy, but it's also saying like, what are you guys going to do?

What can you do? And that's that's the that's the big question now.

Well, and it makes you wonder what would have happened if darryl Isa's bill had gone through? That makes subpoenas super enforceable, right, because you know, we've seen it on again on both sides of the aisle where one one political party will get mad and and vote something in that will come back to sting them later on.

Right on the hind end, it is.

But also you also can't help but wonder, like will like is a republicans loyalty to Congress greater than the Republican's loyalty to the executive branch. It's like, you know, in any restaurant, there's tension between the white staff and the kitchen staff, but they're all working at the same restaurant. They're all trying to do the same thing, which is get high quality, nourishing meals out to the patrons who are citizens like you and me, Right, but there's still tension.

That's right, Well, what happened the end of the day, Everyone just goes behind the restaurant and smokes a joint by the dumpster.

You know, maybe that would make our Congress or our government work more efficiently if the executive branch and the legislative branch and the judicial branch all got together and burned a dooby together by the grease s trap, right exactly. I don't even remember what my analogy was meant to insert. But we it's fine, but we like we are witnessing some historical stuff right now that that is not normal at all. I mean, like from water stuff and that

And there are also all sorts of other things have nothing to do with this, that Congress uses as leverage or negotiation tactics, like, hey, do you want us to push through some of these appointees or should we just keep stalling forever? All kinds of that stuff is on the table. But when you have a president that comes out in January and says, you know what, I don't mind stall all you want. I like the term acting

You got anything else?

No, I'm very curious to see what happens with this McGan case. Probably nothing, I am too.

Will it be the crumbling of our democracy? Who knows? We'll find out in a few years.

If you want to know more about subpoenas, we'll just go look it up and if you get a subpoena yourself.

Get a lawyer. Don't be stupid. And since I said don't be stupid, friends, it's time for a listener. Mayw.

I'm gonna this is about Obama's healthcare. I got a bunch of stuff about this. I didn't realize I made a prediction. Oh okay, oh yeah, yeah, yeah, that one's kind of been sitting in the in the coffers. Okay, guys, about fifteen months ago I start of my journey through the stuff.

You should know.

Archives have been on the steady campaign about twelve to sixteen episodes a week.

That's healthy.

Wow, why I'm writing though?

Ten years ago Chuck made a bold prediction and the rumors, the myths and truths behind Obama's healthcare plan episodes.

Didn't we do like four of those?

We did? Yeah? I think we did four.

You're right, But this one was specifically about that episode, Chuck, I said, call me in ten years if there are no more private insurance companies, because that was one of the big knocks on it. It's like, this is going to do away with private insurance, and I'll buy you a beer Chuck legitimately said I'm on record, and he extended the bet to anyone out there. Now, that statement was more of a gentleman's bet than a legal promise, however,

Million Chuck, every single one of our listeners would have written in and asked for it. I know.

That is from Jack Simmons.

Nice going, Jack, and welcome to the club. We're glad you've found us, and even more so that you like us, so we'll do our best.

To keep it up for you and everybody else that emails a couple of months, although he's probably forgotten about it.

Sorry, that's right, he's moved on to podsave America. That's right.

Well, if you want to get in touch with us, like Jack did, you can go on to stuff youshould know dot com check out our social links there. You can also send us an email, wrap it up, spank it on the bottom and send it off to stuff podcast at iHeartRadio dot com.

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