On "White Privilege," Trump's Executive Privilege, and Congressional witness subpoenas
The Thursday Thoughts
Throwback Thursday—Subpoena Edition
A little over a decade ago, when I was still actively toiling up and down Florida’s highways on the trial lawyer grind, while I was handling a sexual battery case involving a 19-year-old man accused of raping his 14-year-old cousin, I issued subpoenas to take the depositions of all of the essential witnesses, including law enforcement, at the Marion County Courthouse in Ocala, Florida.
Despite having lived in Florida for the majority of my life, I had spent very little time in Ocala, a small (but growing) city that sits about 40-miles south of Gainesville (and about 80-miles north of Orlando). In fact, to that point, the only times I had ever stopped in Ocala was actually on the outskirts each year during my youth when my family would stop there to eat at the Morrison's Cafeteria en route to Tampa, Florida for the annual Florida Classic football game between Florida A&M and Bethune Cookman Universities.
By the time I sat down at the Marion Courthouse for the first time to take depositions in this case, I had already begun to ascertain that some of the natives, if you will, didn't take too kindly to Black folks, if you get my meaning. From the looks that I received at the upscale steak house that I stumbled across in the town square the night before (where stares from some of the patrons who seemed puzzled by the well dressed "Colored Fella" who had just ordered the 18-oz Ribeye, Lobster Bisque, Crab Cakes and Macallan 12 spirits were amusing), to the jailers who seemed to think it amusing to take their dear sweet time in bringing my then client to the visitation room (after I had been sitting for well over an hour), I already knew that justice just might be hard to come by in a city that seemed more Florida circa 1952—not Florida in 2012.
The aformentioned slights would pale in comparison to what transpired during my last deposition of the day at the courthouse. Now, rape cases, similar to murder, are difficult for all involved—even law enforcement officers who see the worst in humanity and have to push forward and do their jobs. Most do so and maintain a high degree of professionalism with litigants—but some do not. In this instance, the very last deposition that day was of the lead detective for the Marion County Sheriff's Office, a younger white man who would soon push the limits of my patience.
When the detective entered the deposition chamber, he was staring at me with much of the same contempt that some of the restaurant patrons had done the night before on the restaurant’s veranda. Per good manners, as he entered the very small and cozy room, I stood and introduced myself (as I did to each witness) and extended my hand to shake—which he refused. While I was raised to believe that a refused handshake was an insult, I was unfazed at that point because that was not the first time (nor would it be the last) that a law enforcement officer had refused such amicable civility.
Undaunted, after the court reporter swore the detective in, I introduced myself formally on the record (per usual) and began my questioning, with the first being the standard "please state your name and current occupation for the record." Typically, that question is fired off in a quick, robot-like manner that breaks the ice, but five seconds soon turned to ten and then 30 before the detective finally stopped looking out the window over his shoulder and said his name and occupation with a wry expression on his face. Keeping my poker player cool, I then knew for sure that this guy was going to be a jerk, so I glanced my notes to see how I could best get the substance out of him quickly so that neither of us would have to endure the other's company for long.
My next question, one used to set up the substantive portions, was the standard, "Sir, can you please tell me at what point were you assigned to investigate the allegations that led to my client being charged with sexual battery?" Once more, silence, but this time instead of staring out of the window, I suppose he was counting the holes in the old fashioned sheetrock on the ceiling of the courthouse room. At this point the prosecutor, also a young white male, asked the court reporter to pause the tape and testily admonished the detective to answer my questions. The detective then looked directly at me and while pointing, said, "I don't have to answer SHIT that this man asks..."
At that point, my poker face was off and I leaped out of my chair and told the detective "point at me again, and I'm gonna send you flying through that wall." At that point, the prosecutor stood and dragged the smirking detective out of the deposition room into the hallway and as I started taking deep breaths to simmer down, the court reporter, a young white woman, kept repeatedly apologizing for the detective's conduct, to which I replied, "it's not your fault that no one has taught that guy any manners."
As I returned to my seat, I could hear the prosecutor telling the detective to get his act together, and about five minutes later, they returned to the room and took their seats. Once we were back on record, I repeated the prior question and, once more, the detective got silent and simply stared at me with his mouth clenched shut. After staring back at him for a few moments, I then said to the detective, "Sir, you were issued a subpoena by my office that was certified by the clerk of court, which means that you are under a lawful order to answer the questions that I pose in this case. If you are not going to answer my questions in a professional manner, I am going to draft an order to show cause right here on my laptop and take it directly to the judge's chambers upstairs so that he can issue a a warrant for your arrest. So, we will either take this deposition here today, in the general population room at the jail—or in the judge's chambers with you shackled in a chair. It's up to you to decide, but I'm gonna get my questions answered one way or another."
At this point, the detective had turned about as red as a fire truck, while I kept my eyes squarely fixed on his right hand to ensure that if he moved to draw his weapon, that my right hand would have quickly knocked him unconscious before he had the chance. To his credit, after about two minutes of huffing and puffing like he wanted to jump, he answered my question—and then answered the rest of them over the course of an hour.
In summary, while the detective who had never met me clearly did not have much respect for me at the outset, he had enough sense to respect my subpoena AND my admonition that should he choose not to comply, that I would have him held in contempt and booked at the very county jail that, ironically, was adjacent to his office at the Sheriff's complex.
Will Trump's former aides defy Congressional subpoenas?
This week, one of the more interesting developments in Washington is the watch to see whether former President Donald Trump's aides Steve Bannon, Mark Meadows, and Dan Scavino will sit for depositions relating to the Congressional hearings on the January 6th riots at the Capitol Complex.
So far, lawyers for Bannon have indicated that their client will not testify; whether Mark Meadows will testify is still uncertain at this point and the last major witness, Dan Scavino, is apparently dodging process of service for his subpoena.
Complicating matters is the fact that Mr. Trump's lawyers have raised the argument that their client wishes to invoke "executive privilege," an invocation that, if agreed to by any court that ultimately takes up its consideration, could prevent these and other direct Trump employees from having to testify about what the former president knew about the riots and, whether he acted in any way to aid, abet, or encourage his followers who left multiple millions of dollars in damaged property, and six people dead.
Yesterday, the Biden administration lodged its belief that executive privilege does not apply for a former president relating to a potential criminal case, and asserted that "it is not in the best interests of the United States, and therefore is not justified as to any of the documents provided to the White House on September 8, 2021."
The question, then, is whether Mr. Trump maintains executive privilege on these criminal (not civil) matters? As we learned on the first day of law school at the University of Florida, the correct answer at this juncture is "it depends."
As I wrote earlier this week, privileges, whether they are marital, medical, legal, or pastoral, belong to the party seeking to invoke it. Such would be the same in many instances even for former presidents, particularly when the issue relates to matters that are directly tied to their executive duties as president.
Where it gets murky, however, is when the matter is not tied to the duties of the chief executive. From a historical standpoint, Richard Nixon's complicity in the break in of Democratic headquarters at Watergate did not shield those who committed the crime of burglary and theft, no more than Bill Clinton's sexual relations with Monica Lewinsky were able to be kept silent due to his being president. So while there are reels of tape of the former president not just encouraging his supporters to head to the Capitol and "Stop the Steal," including his own initial promise that he was going to march over there with the crowd, the evidence that Bannon, Meadows, and Scavino could provide could focus more squarely on whether there were direct calls and text messages exchanged between administration insiders and rioters on that fateful day—evidence that could lead to more criminal prosecutions.
Separately, while I can intellectually deduce how Trump's employees very well could be covered by executive privilege if the assertion ultimately is allowed by the courts, I do not see whether Bannon, arguably THE key witness, would be covered because he was fired by Trump back in 2017 and was merely a private Trump adviser on January 6th.
Thus, much like the detective in my first segment who didn't want to answer my questions until threatened with contempt, it will be interesting to see whether Bannon et al. will stand their ground and go to jail on contempt charges to protect the former president, or whether they will sit and answer questions under oath?
Stay tuned...
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That was good.