If Donald Trump isn’t above the law, you would never know it. He got away with colluding with Russia to win in 2016, and now he’s openly seeking foreign assistance for a repeat in 2020. He committed criminal acts of obstruction from right inside the Oval Office, and yet he’s experienced no consequence for those actions. Now, as Congress tries to investigate those obstructive acts, Trump and his attorneys have made an unprecedented assertion of absolute immunity over anything and everything related to actions he has taken in the White House.
So-called absolute immunity was the claim White House and Department of Justice lawyers made Wednesday at a Judiciary Committee hearing in order to rebuff every question asked of former Trump aide Hope Hicks regarding her time serving as White House communications director. At the closed-door hearing, Hicks wouldn’t even divulge where her desk was located in the West Wing due to her made-up immunity shield. The blanket immunity claimed by Hicks and administration lawyers is akin to the blanket assertions of executive privilege Trump has made over all redacted portions of the Mueller report, all documents related to the 2020 census citizenship question, and other materials.
Just to be clear, absolute immunity isn’t a thing, nor are blanket assertions of executive privilege—or at least they weren’t pre-Trump. What the White House is now claiming on a regular basis amounts to a form of executive immunity, which is wholly different from the way limited assertions of executive privilege have been used by presidents in the past.
“It’s important to distinguish between executive immunity and executive privilege,” former U.S. Attorney Barbara McQuade explained on an episode of the podcast Talking Feds. McQuade recalled that George W. Bush’s White House tried to claim executive immunity to block his former White House Counsel, Harriet Miers, from having to testify about a scandal involving the mass firing of U.S. Attorneys. As McQuade noted, that argument tanked in court, with a federal judge ruling that top aides to Bush weren’t immune from congressional subpoenas.
Executive privilege has traditionally been used like a scalpel rather than the bludgeon Trump has turned it into. There’s a limited number of materials and conversations over which a president can claim executive privilege. “You have to show up and you have to go question by question,” McQuade explained of White House aides subpoenaed to testify.
That doesn’t amount to Trump’s White House just blacking out a top aide’s entire tenure in the West Wing, as it did Wednesday during the Hicks testimony. And it certainly doesn’t mean Trump can simply block aides from giving any testimonial at all, as he is currently doing with former White House counsel Don McGahn. “I think it’s a very aggressive move to assert executive immunity and say these people don’t even have to show up to the hearing,” McQuade observed. “Ultimately, they’ll lose in the courts.”
In the meantime, Trump and his lawyers are creating privileges that never existed and totally upsetting the balance of power that once regulated our co-equal branches of government.