Privileges should be narrowly construed; exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.
Espy a/k/a In Re Sealed Case, 121 F. 3d 729 (USCA DC 1997)
In 1994, allegations of corruption swirled around the Secretary of the US Department of Agriculture (USDA), Mike Espy. A grand jury was investigating gifts and bribes he received from corporate meat and poultry interests. On October 14, 1994, a grand jury subpoena was served on the White House seeking production of documents related to the White House investigation into the same matter that resulted in Espy’s resignation. Rather than comply with the subpoena, the White House objected to producing the documents – citing executive privilege.
On appeal, the Federal Appeals Court applied two very different kinds of privilege: 1) the deliberative process privilege (broad and relatively easy to beat in cases of alleged government misconduct, as they described); and, 2) the Presidential communication privilege (focused specifically upon White House officials and more difficult to beat).
Espy has been in the news lately because it was cited in a letter by President Trump’s lawyers, leaked to the New York Times. But here’s the thing: Espy involved a document request and upheld the President’s right to assert objections to a grand jury subpoena BEFORE voluntarily producing them. Trump’s lawyers concede that they have already produced the documents but simultaneously threaten not to obey a subpoena for the President to appear before a grand jury to give TESTIMONY (presumably, regarding the documents they produced without raising an objection).
It’s not difficult to see how these two situations differ from one another. President Trump still has the right to assert either privilege – but not for documents he already produced to Special Counsel. The privilege is waived to that extent. And the Trump legal team ought to be very concerned about this nugget at the end of Espy:
If one of the crimes that the grand jury is investigating relates to the content of certain conversations, the grand jury’s need for the most precise evidence, the exact text of oral statements is undeniable.
Because obstruction of justice charges revolve around the issue of “intent”, it would seem that Trump’s team has gone about this backward and that Mueller could satisfy the test for either of the two types of privilege asserted in Espy. The President’s team will, no doubt, argue that the Special Counsel has not demonstrated sufficient “need” for the President’s testimony. It would have been easier for them to make that argument before waiving the privilege by turning over “millions” of documents.
She’s got a secret garden
Where everything you want
Where everything you need
Will always stay
A million miles awayBruce Springsteen, Secret Garden
