John Bolton and Executive Privilege

Thursday, July 2, 2020

Douglas J Wood

Douglas J. Wood JD'76, Partner at Reed Smith LLP, discusses executive privilege and the impact it could have on John Bolton’s new book, “The Room Where It Happened: A White House Memoir.” Produced and Hosted by A. J. Kierstead

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Legal topics include executive privilege, constitutional law, partisanship, executive branch

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A. J. Kierstead (Host):

Douglas J. Wood of the class of 1976 and partner at Reed Smith, LLP discusses executive privilege in John Bolton's new book. This is The Legal Impact presented by the University of New Hampshire Franklin Pierce School of Law, now accepting applications for J.D. graduate programs and online professional certificates. Learn more and apply at Opinions discussed are solely the opinion of the faculty, your host, and do not constitute legal advice, or necessarily represent the official views of the University of New Hampshire.

            So Doug, thank you so much for joining me today. The conversation today is going to be based around a blog post on your website, which is linked to the episode description available at To start off with, can you give a quick description of what executive privilege is and some historical instances where it was important? You mentioned in the blog post that George Washington even utilized it.

Douglas J. Wood:

It's sort of an extension of the Article I powers of the executive branch that one can extrapolate gives the president the ability to exercise certain privileges in order to do his or her job for the national security. So executive orders have started out from the dawn of time and have been used by presidents consistently. In our lifetimes, executive orders have become quite prevalent, particularly in the last two administrations in the Obama and the Trump Administrations they have used them to an excessive degree.

            And arguably, depending upon where you sit in the political spectrum, have actually usurped the duties of the Congress, and that's the current debate, just how far can these executive orders go. But they have to be careful in challenging them on a formal basis because when an administration changes, those very same arguments can be used against you. So it's a very controversial area that has been expanded to unprecedented degrees in today's world.

A. J. Kierstead (Host):

How does this concept tie into John Bolton's upcoming book, The Room Where It Happened: A White House Memoir?

Douglas J. Wood:

Well, I mean ultimately who knows what this book is going to say, and how credible it may or may not be. That'll be for the readers and the reviewers to determine, but I mean if you are working ... And one of the principles would be that if I am working for the president of the United States and I am part of his or her entourage, and they are going to be giving confidences, and feel free to open up my mind to them for purposes of advising them, particularly on national security which Bolton did, I have as the president, I have the right to make sure that that individual is not speaking about these things outside the context of the appointment that I've made for him.

            Bolton would arguably be doing that in his book if he started to reveal things that were communicated to him by Trump during his appointment as a security advisor. That would fall squarely within the concept of executive privilege whereby the president of the United States has the ability to prevent those who work for him from either testifying before Congress or publishing information that would otherwise violate that privilege and by implication his or her ability to properly govern the country.

            I know it's being vetted. There have been some arguments made about it. Obviously the entire issue has turned into politics, which is typical. But more importantly in the debate really is the fundamental principle of whether or not the chief executive officer of the United States, the president, should feel confident that when he has his consultants and his confidantes in a room that those discussions will stay in that room and will not be later used for political purposes. That's a bigger issue.

A. J. Kierstead (Host):

Or used to make money off a book.

Douglas J. Wood:

Or to make money off a book. I mean the bigger issue really is bipartisan. It shouldn't be whether it's the Republican doing it or the Democrat doing it. It's a very core principle that anyone ... And take it away from the idea of the presidency. If you have any group in a company, at a school, or anywhere that is trying to have a very frank, and honest, and open discussion, the worth and the value of those discussions to be severely undermined if everybody in the room knew that everyone is also permitted to go out and talk to the whole world about what is discussed.

            I mean that would really undermine the integrity of any of those kinds of discussions, and that's kind of what Bolton represents, and then whether or not what he's written or not falls in that area is really a subject of debate. But the point is that he was a very close advisor to the president of the United States, and now doing a tell-all, and making money from it. You want to think that people who are in political life and public life in that context would think a little more differently than celebrities who want to do a kiss-and-tell. This is different. This to some degree really does go to the integrity of the office of the presidency. Forget the individual, but to the office of the presidency itself.

A. J. Kierstead (Host):

Say in theory there's something released in this book that the executive branch views as violating the executive privilege, what sort of actions could they take?

Douglas J. Wood:

Well, I think really the only thing they can do is, in terms of the publication of the book, is have the Department of Justice attempt to either enjoin its publication or have parts of it redacted, and that's what the review is. If you are a former employee of the federal government in a sensitive role, and you want to write something about it, there's a vetting process you have to go through and submit the manuscript to the appropriate authorities so that they can look through it and determine whether or not anything you said in there is considered to be the either privileged, or on matters of national security, or otherwise that can't be published, and that's what is going on.

            The Department of Justice has been looking at this book and has posed objections, and we'll see what arises in the end on this. But ultimately the question will be, what happens if the publisher decides to defy the Department of Justice, and what the Department of Justice has to do is go to court, and will end up in a legal fight because just like the Pentagon Papers did, goes all the way to the Supreme Court.

A. J. Kierstead (Host):

Now, how would Congress play into this? Say they want this to come out because they want the information that's in there. Obviously Bolton was not called to testify during the impeachment hearings. That's a whole other layer of controversy around this release.

Douglas J. Wood:

To the extent that Congress may want that material, one might argue that the way to get that isn't through a third-party publication of a book by whoever's publishing this book. The proper way to get that information is to subpoena someone, get them to testify before Congress, and then deal with the executive privilege that might've been asserted had Bolton testified. And let's speculate that Bolton was called and President Trump exerted his executive privilege to prevent him from testifying, the remedy would then be as Congress has over the course of time, to go to court to overturn that executive privilege, and then say that certain things do not fall within the privilege, and the person would then be compelled to testify. But that takes time, and in today's politics, there seems to be no time for deliberation. Everything needs to be done tomorrow.

A. J. Kierstead (Host):

Especially with November right around the corner here.

Douglas J. Wood:

Yeah. Well, that used to be ... I mean yeah, that's a very good point that you make there that November's around the corner, but I make the observation that it's been that way for the last 16 years. It was that way in the Obama Administration. It's certainly that way in the Trump Administration, that everybody is rushing, there's very little deliberation on much of what ought to be deliberated on. What one could argue is the reason we elected people to go to Congress on either side of the aisle, and I'm not making a partisan comment here at all. I mean they're all guilty of it. That they no longer do the deliberation that they used to do. If you look at the Founding Fathers' principles of the three-branch system of the government, they had two branches within the one branch, legislative branch, which is the House of Representatives and the Senate.

            And if you look at the Federalist Papers and you read some of the history on this, you'll realize that the House of Representatives was supposed to be a boisterous, sort of down and dirty environment where the common people had their voice. There were hundreds of them in the room. And that ultimately the Senate's purpose was to be the very deliberative statesmen-like house that would balance out the more aggressive or boisterous, or whatever you want to call it, roles in the House, and that was the balance. Well, today you don't see that anywhere near as much in the Senate. You don't see the deliberative thinking, and you haven't seen this deliberative thinking in the Senate for many, many years.

Speaker 3:

Would you chalk it up to partisanship primarily?

Douglas J. Wood:

Oh, I think without question it's partisanship, and it's also a lack of compromise. I think back to there have been presidents who have had diametrically opposite opponents in the House. Ronald Reagan had Tip O'Neill and Ted Kennedy, Bill Clinton had Gingrich, and you couldn't get more opposite people. Yet they worked together somehow, and they made things work. That kind of ability to work together, whether it was Newt Gingrich and Clinton, or Tip O'Neill and Ronald Reagan, that's gone. That seems to be gone, and that's a partisan issue, even though not so long ago in our lifetimes, there were presidents who had very different views than the Congress yet they made reasonable progress in a ... What do I want? What's the word I want? In a sort of a dignified way, as opposed to name-calling and accusations all over the place.

            It may be, I think it's part the partisan, but I also think quite frankly it's also social media. It doesn't help that most communications are now boiled down to 140 characters, and particularly from the president of United States that now we tweet. And when he tweets [inaudible 00:00:10:22], he tweets. When Pelosi tweets, McConnell tweets. When McConnell tweets, somebody else tweets, and they go back and forth, and we get into a tweet fest that really doesn't absolve ... Doesn't absolve. [inaudible 00:10:33] Might be absolve. Might be the word. But doesn't resolve any of the issues. So we get mired down in worse than the photo ops. It used to be that there was the opportunity for senators, and congressmen, and presidents, was to get that photo up or opportunity, to be able to make that soundbite statement before the cameras.

            Used to be a joke running around that the most dangerous place to be, to be in between Schumer, and is between him and a camera because he'll get right ... You know, that was just kind of the running joke about him. But now you don't even need to find the camera. Now you simply go up on social media and you interject your thoughts with tweets, and other postings, and the like. And what we've seen is that social media has dramatically changed the way we think, the way we communicate, or don't communicate, and it's far more influential than the evening news, or anything else ever was. The viewership of what goes up on YouTube, and Facebook, and Instagram, and other social media platforms, is so much higher than anybody ever watched the evening news or ever read The New York Times.

            So we have a mass messaging that's going on that is far more deep in its reach than ever before, and it's almost overwhelming. And a lot of people who are influenced by that are being sort of programmed in my view to react in not necessarily logical ways, because they're inundated, and they're confused, and they get all sorts of stories. They immediately think everything they read is true, no matter where their source is, on both sides of every issue, and they're confused. And so therefore we have a very volatile marketplace that allows for partisanship. Then you'd hope that leaders on both sides of the aisle would lay down those swords and sort of come to the table like Tip O'Neill and Ronald Reagan did, and then Clinton and Gingrich did. But I'm not optimistic.

A. J. Kierstead (Host):

Before we sign off, you released a book last year. What was it about, and where can people check it out?

Douglas J. Wood:

Yeah, the book, my latest novel is, Dark Data: Control, Alt, Delete. It's a political thriller where a Russian oligarch funds a radical terrorist with a computer hacker to use the internet to influence people's behavior and reek terrorism around the world, and to ultimately try to upset markets so that the Russian oligarch financial terrorist can reap billions. And it's a story of a reformed terrorist, and the CIA, and all that kind of stuff trying to save the world. Whether they do or not will be in the eyes of the reader, who can go buy the book. But it's available on Amazon and Barnes & Noble. It's available everywhere books are sold.

A. J. Kierstead (Host):

Thanks for listening to The Legal Impact presented by UNH Franklin Pierce School of Law. To help spread word about the show, please be sure to subscribe and comment on your favorite podcast platform, including Apple Podcasts, Google Play, and Spotify