Here's an above-the-fold update on the imperial presidency — and that of all the president's men — via executive privilege:
"The Justice Department is seeking to question former Vice President Mike Pence as a witness in connection with its criminal investigation into former President Donald J. Trump’s efforts to stay in power after he lost the 2020 election....
"Mr. Pence ... is open to considering the request."
If you had been present at the creation of the greatest crime in American history, imagine the guffaws echoing from the marbled halls of the Department of Justice after you told its prosecutors that you might be "open" to meeting their request to appear as a witness.
Ah, but you weren't vice president of the United States at the time, thus eligible to claim executive privilege — or for the former president to do it for you. Mike Pense was vice president, hence no guffaws.
On the other hand, in the United States v. Nixon, the Supreme Court ruled that in cases of criminal conduct your executive privilege claim would be no more valid than that of an "average" citizen. So cough it up.
Such has been the law for nearly a half-century. And yet an ex-president and those within his closest circle persist in claiming executive privilege even in this case of the most outrageously obvious criminal conduct. Constitutionally, said the Court, the privilege is nonexistent. Nonetheless, official deference is paid. Indeed executive privilege has become much like the Senate filibuster: One need only utter the words, and "the system" backs down.
It should be a matter of public astonishment that Vice President Pence, who quarreled with Trump about the president's insistence that he violate the Constitution, has never been officially interviewed about the events surrounding Jan. 6. "Despite Mr. Pence being a witness to a range of Mr. Trump’s actions in office," writes The NY Times, "an interview of the former vice president would be the first time that he has been questioned in a federal investigation of Mr. Trump."
Neither was Pence ever questioned during the Mueller investigation, even though he was also at the creation of Trump's obstruction of justice efforts. Pence "was in the room for many of the key events examined by Mr. Mueller in the obstruction investigation, but Mr. Pence’s lawyer at the time managed to get him out of having to testify." The lawyer simply informed Mueller "that Mr. Pence believed Mr. Trump had not obstructed justice." And that was that, for "privilege" would ensue.
No one disputes the legitimacy of executive privilege per se. It has primordial roots in America's constitutional system of government. George Washington was the first to invoke it; the House wanted documents pertaining to the Jay Treaty with London, but Washington refused, saying treaties are within the purview of the Senate only — to which he did provide the documents.
President Eisenhower is known for having established the modern and more expansive form of executive privilege, during the Army-McCarthy hearings. In a DOJ memo he forbade the "provision of any data about internal conversations, meetings, or written communication among staffers, with no exception to topics or people." Before concluding his White House tenure Eisenhower went on to invoke the claim nearly four dozen more times. The idea was that "candid" exchanges among White House personnel were no one's business but theirs.
This, President Nixon tried to take to criminal heights, but the Supreme Court shut him down. That, it would seem to most any reasonable mind, should have been the end of it — "it" being the invocation of executive privilege in presidential cases of criminal conduct. But, the law being the law — reams of byzantine language designed to evade straightforwardness — Trump has managed to gum up the works through virtually endless assertions of privilege. And WH Trumpers have done the same.
Executive privilege has become a go-to defense for obstruction of justice. After years of litigation, the privilege is often denied, but at times it seems DOJ has become too wearied for yet another, almost infinite court battle.
So Mike Pence can imperiously state that he "is open to considering" a Department of Justice request that he act as an eye witness to the greatest crime ever committed in American history.
And that's the way it is — Walter Cronkite, CBS News