Like â•œNobody Has Ever Seen Beforeâ•š: Precedent and Privilege in the Trump Era

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Like “Nobody Has Ever Seen Before”: Precedent and Privilege in Like “Nobody Has Ever Seen Before”: Precedent and Privilege in

the Trump Era the Trump Era

Heidi Kitrosser

University of Minnesota Law School

, [email protected]

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Heidi Kitrosser,

Like “Nobody Has Ever Seen Before”: Precedent and Privilege in the Trump Era

, 95 CHI.-

KENT L. REV. 519 (2020),

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519

LIKE “NOBODY HAS EVER SEEN BEFORE”: PRECEDENT

AND PRIVILEGE IN THE TRUMP ERA

EIDI KITROSSER*

NTRODUCTION

President Trump is fond of citing the breadth of his powers and privi-

leges. He has explained, for example, that there is “a thing called Article II”

of the Constitution that “gives me all of these rights at a level that nobody

has ever seen before.”

Elsewhere, he has elaborated that “Article II allows

me to do whatever I want.”

These statements have been roundly criticized,

with commentators comparing them to Richard Nixon’s infamous assertion

that, “when the President does it, that means it is not illegal.”

As with

Nixon’s words, however, Trump’s conception of Article II is grounded in

something more than one man’s grandiose delusions. Rather, Trump’s asser-

tions of power and privilege are symptomatic of a long trend toward presi-

dential imperialism. At the same time, they are especially brazen and

dangerous manifestations of the same.

Trump’s efforts to stymie the congressional inquiries that led to his im-

peachment encapsulate his dual role as both symptom and agent of excessive

presidential power. His actions reflect and further threaten to exacerbate the

President’s alarmingly broad capacity to control the information that Con-

gress and the people are able to learn about his activities. Yet neither

Trump’s behavior, nor the Senate’s failure to convict him on either of the

two articles of impeachment passed by the House—including the second ar-

ticle, for “Obstruction of Congress”

—must, inevitably, enhance presidential

* Robins Kaplan Professor of Law, University of Minnesota Law School.

1. President Donald Trump, Remarks Before Marine One Departure, (July 12, 2019).

2. Christina Zhao, ‘Article 2’ Trends After Trump Falsely Claims it Gives Him Unlimited Powers

as President: I Can ‘Do Whatever I Want’, N

EWSWEEK (July 23, 2019), https://www.newsweek.com/ar-

ticle-2-trends-after-trump-falsely-claims-it-grants-him-unlimited-powers-president-i-can-do-1450798

[https://perma.cc/2DFH-K382].

3. See Colleen Long & Michael Warren, Trump’s Idea of Executive Power is Also Impeachment

Defense, A

SSOCIATED PRESS (Jan. 25, 2020), https://ap-

news.com/b2d16168986dd61accd475143c544665 [https://perma.cc/U6KW-AJJW] (“Not since Richard

Nixon[‘s statement] has a president come close to making an assertion of power as sweeping as

Trump’s.”).

4. See Impeaching Donald John Trump, President of the United States, for High Crimes and Mis-

demeanors (“Articles of Impeachment”), H.R. Res. 755, 116th Cong. (2019). See also Trump

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520 CHICAGO-KENT LAW REVIEW [Vol 95:2

power going forward. Whether the Trump era normalizes ever bolder asser-

tions of power, or whether it has quite a different effect—for instance, caus-

ing a backlash against such assertions—remains to be seen. As legal historian

Mary Dudziak observed in the wake of the Senate’s vote to acquit Trump on

both articles of impeachment: “past practice has not bound the present . . . .

[Political branch] precedent is just a form of contemporary political argu-

ment.”

The longer-term implications of Trump’s actions and the House and

Senate impeachment proceedings, in short, are up to the actions and argu-

ments of our own and of future generations.

In this Essay, I take both a wide and a long view of President Trump’s

refusal to comply with any congressional information requests relating to his

impeachment.

That is, I consider how his intransigence reflects and thus far,

has exacerbated judicial and political branch trends favoring presidential

power. Looking to the future, I acknowledge that executive aggrandizement

episodes tend to build on themselves, contributing to a ratchet effect that

enhances presidential power. I argue, however, that this one-way trajectory

is not inevitable.

In Part I, I look to judicial precedent involving executive privilege. Alt-

hough few inter-branch disputes over information reach the courts, judicial

precedent helps to shape the parameters within which political branch ap-

proaches to these disputes take place. On the whole, courts have been fairly

sensitive to the interests of Congress and others in obtaining presidential in-

formation.

Yet they also have armed Presidents with legal arguments and

tools that enhance their already significant advantages in inter-political-

branch tussles. In Part II, I consider these advantages, including a formidable

executive branch legal infrastructure adept at turning past acts of presidential

secret-keeping into “historical gloss” to justify yet more extreme secrecy. In

Part III, I situate President Trump’s uses of executive privilege and its

shadow within the broader contexts explored in the preceding sections.

Trump’s actions rely on longstanding tools and trends but employ them in

ways more extreme—and more threatening to inter-branch checks and bal-

ances—than we have seen in the past. President Trump’s categorical refusal

Impeachment Results: How Democrats and Republicans Voted, N.Y. TIMES (Feb. 5, 2020),

https://www.nytimes.com/interactive/2020/02/05/us/politics/impeachment-vote-results.html

[https://perma.cc/PSJ9-N6SB]; Joanna Walters, What Are the Articles of Impeachment Against Donald

Trump?, T

HE GUARDIAN (Jan. 20, 2020), https://www.theguardian.com/us-news/2020/jan/20/what-are-

trump-articles-of-impeachment [https://perma.cc/MR3P-LD7G].

5. Professor Mary Dudziak (@marydudziak), T

WITTER (Jan. 31, 2020, 2:53 PM), https://twit-

ter.com/marydudziak/status/1223348502757019652 [https://perma.cc/TNS2-TAY4].

6. See infra Part III.

7. See infra Part I.

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2020] PRECEDENT AND PRIVILEGE 521

to cooperate with the House impeachment proceedings, his directive to oth-

ers in his Administration to do the same, and his efforts to punish and intim-

idate those officials who did cooperate with the House, take defiance of

oversight to new heights.

In this Essay’s conclusion, I consider the bearing

that these events might have on future Presidents, congresses, and courts.

Although presidential power often serves as a one-way ratchet, there are ex-

ceptions to this rule. Indeed, some presidential abuses become anti-canonical

and spark a backlash against future such actions.

President Trump’s ob-

struction deserves to meet this fate.

XECUTIVE PRIVILEGE AND TESTIMONIAL IMMUNITY IN THE

COURTS

Executive privilege—and here I focus solely on that subset of the priv-

ilege involving presidential communications

—is the doctrine sometimes

invoked by Presidents as a basis to decline to provide requested information

to members of Congress, to courts, or to the public. At the heart of the priv-

ilege is the notion that forced information disclosures can undermine the

President’s ability to exercise his Article II powers and duties.

The trajectory of executive privilege’s breadth is not perfectly linear.

For example, President Nixon’s failed assertion of an absolute privilege

against disclosing his oval office tapes, along with the scandals that engulfed

his Administration more broadly, inspired some reticence to invoke the priv-

ilege on the parts of subsequent Presidents.

Nonetheless, a number of fac-

tors have tended, overall, to give executive privilege a ratchet effect,

expanding its reach and emboldening those who wield it over time. This is

especially true with respect to disputes between the political branches, most

of which never reach the courts.

To understand how executive privilege tends to expand outside of the

courts, it is helpful to begin, paradoxically, by looking to the judiciary. The

paucity of judicial opinions on the privilege give the handful that exist a good

8. See infra Part III.

9. Deborah Pearlstein suggests as much in a new article, explaining that executive branch prece-

dent can become anti-canonical under some conditions. Deborah Pearlstein, The Executive Branch Anti-

canon, 89 F

ORDHAM L. REV. (forthcoming 2020).

10. The other subcategory is the common law “deliberative process” privilege. See Heidi Kitrosser,

The Shadow of Executive Privilege, 15 T

HE FORUM 547, 550 n.12 (2017) (citing In re Sealed Case, 121

F.3d 729, 737, 745 (D.C. Cir. 1997)).

11. See, e.g.,M

ARK J. ROZELL,EXECUTIVE PRIVILEGE:PRESIDENTIAL POWER,SECRECY, AND

ACCOUNTABILITY 44–49 (3d ed. 2010); Mark J. Rozell & Mitchel A. Sollenberger, Executive Privilege

and the U.S. Attorney Firings, 38 P

RESIDENTIAL STUD. Q. 315, 316 (2008).

12. See R

OZELL, supra note 11, at 73.

13. See Kitrosser, supra note 10, at 550–51.

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deal of influence over the arguments that are made or considered by partici-

pants in information-sharing disputes between the political branches. Over-

all, courts have built a doctrine that is rife with tools for the executive to

wield in inter-branch disputes, even as they have pushed back against some

of the most extreme invocations of the privilege.

Most notably, in United States v. Nixon, the Supreme Court recognized

the privilege for the first time and also deemed it one that presumptively

favors the executive.

More so, the U.S. v. Nixon Court embraced the “can-

dor rationale,” or the chilling effect that disclosure might have on Presidents’

abilities to obtain candid advice, as one justification for the privilege.

Alt-

hough the Court cautioned that the presumption might readily be overcome

when its assertion “depends solely on the broad, undifferentiated claim of

public interest in the confidentiality of [high-level] conversations”

—in-

deed, the Court characterized Nixon’s own claims as such and found them

outweighed by countervailing interests

—the candor rationale is intrinsi-

cally expansive. The rationale’s nearly limitless potential is captured by an

early usage of it in the Obama Administration. In the wake of a controversy

over security at a state dinner—one sparked by a reality television star’s

gaining entrance to said dinner without an invitation—the White House ex-

plained that its “social secretary is immune from testifying before Congress

‘[b]ased on the separation of powers’ and the need for ‘the White House staff

to provide advice to the [P]resident confidentially.’”

Beyond this striking

example, administrations of both parties have cited the candor rationale

many times since U.S. v. Nixon, both in opposing information requests and

in objecting to proposed statutory information-sharing requirements.

The U.S. v. Nixon Court also suggested that a much stronger presump-

tion would apply to a privilege claim grounded in national security.

Just

two years later, the United States Court of Appeals for the D.C. Circuit ad-

monished a district court for deferring too strongly to a national security-

based executive privilege claim raised in response to a congressional

14. 418 U.S. 683, 707–08. (1974).

15. Id. at 705–09. For in-depth analysis and critique of the candor rationale, see Gia B. Lee, The

President’s Secrets, 76 G

EO.WASH.L.REV. 197, 204–05 (2008).

16. Nixon, 418 U.S. at 706.

17. Id. at 713–14.

18. Michael D. Shear, Government Openness is Tested by Salahi Case, W

ASH.POST, Dec. 4, 2009,

at C7 (quoted in Heidi Kitrosser, The Shadow of Executive Privilege, 15 T

HE FORUM 547, 551 (2017)).

See also Helene Cooper & Rachel L. Swarns, At Obama’s First State Dinner, the First Crashers, N.Y.

IMES (Nov. 25, 2009), https://www.nytimes.com/2009/11/26/us/politics/26crashers.html

[https://perma.cc/3CH2-G3EC].

19. See examples cited in Kitrosser, supra note 10, at 551 n.18.

20. Nixon, 418 U.S. at 710–11.

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subpoena.

Nonetheless, administrations have repeatedly cited the national

security rationale in objecting to information requests or proposed statutory

requirements.

Administrations also routinely cite the opinion of the U.S. Court of Ap-

peals for the D.C. Circuit in Senate Select Committee on Presidential Cam-

paign Activities v. Nixon,

a case that preceded U.S. v. Nixon by two months.

Whereas U.S. v. Nixon involved a subpoena issued by a district court in the

context of a criminal prosecution, Senate Select Committee concerned the

Nixon Administration’s refusal to turn over information to a congressional

committee.

The D.C. Circuit validated the Administration’s demurral, con-

cluding that the committee had not overcome a presumption in favor of ex-

ecutive privilege.

To overcome the presumption, a committee must show

that the information it seeks is “demonstrably critical to the responsible ful-

fillment of the Committee’s functions.”

Administrations regularly invoke

that standard to support refusals to disclose information in a range of set-

tings.

Courts also have given fuel to administrations seeking to minimize the

procedural steps that they must take before they can benefit from executive

privilege. In Cheney v. United States in 2004, the Supreme Court held that

Vice President Cheney did not need to invoke executive privilege or identify

parts of a discovery request that infringed the privilege; rather, he could ob-

ject to the entire request on the basis that parts of it might trigger the privi-

lege.

Although Cheney can be construed quite narrowly—indeed, the

District Court for the District of Columbia refused to interpret Cheney to

encompass absolute testimonial immunity for high-level advisors in 2008 in

House Judiciary Committee v. Miers

—Cheney offers a tantalizing tool for

21. United States v. AT&T, 551 F.2d 384, 385–86, 392 (D.C. Cir. 1976). The appeals court en-

couraged the branches to resolve the matter through negotiations, but stressed that the negotiations should

be informed by assumptions of shared congressional and executive responsibility for foreign affairs, ra-

ther than executive supremacy. Kitrosser, supra note 10, at 553 (citing United States v. AT&T, 551 F.2d

at 390–95).

22. See examples cited in Kitrosser, supra note 10, at 552 n.21–22.

23. 498 F.2d 725, 731 (D.C. Cir. 1974).

24. Id.

25. Id. at 731–33.

26. Id. at 731.

27. See Jonathan David Shaub, The Executive’s Privilege, D

UKE L.J. (forthcoming 2020) (manu-

script at 10) (explaining that “the executive branch view is that the only applicable balancing test to an

assertion of executive privilege against Congress is the [D.C. Circuit’s] ‘demonstrably critical’ test”). See

also examples cited in Kitrosser, supra note 10 at 552 n.24.

28. 542 U.S. at 375, 388–90 (2004). See also In re Cheney, 406 F.3d 723, 725, 727, 731 (D.C. Cir.

2005) (discussing separation of powers issues, ordering case dismissed on remand).

29. 558 F. Supp. 2d 53, 106 n.8 (D.D.C. 2008)). The Court instead required such advisors to appear,

at which point they could object to particular questions. Id. at 102–03.

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524 CHICAGO-KENT LAW REVIEW [Vol 95:2

administrations nonetheless. The appeal of gaining executive privilege’s

benefits without incurring the potential political, legal, or practical hassles

of actually invoking it is self-evident.

Finally, in House Committee on the Judiciary v. McGahn, a panel of the

D.C. Circuit recently strengthened the White House’s hand in information-

sharing disputes with Congress. As this Article was in its final editing stages,

the D.C. Circuit agreed to rehear the case en banc. The rehearing order va-

cates the panel decision, and the case remains pending as this Article goes to

press.

I review the panel opinion, as well as the concurring and dissenting

opinions, nonetheless. I do so both to preview whatever will follow from the

full court, and because the opinions are striking in their own rights.

The McGahn panel refused to enforce a subpoena issued by the House

Judiciary Committee for testimony by President Trump’s former White

House Counsel Don McGahn.

Two of the three judges on the panel (Judge

Henderson, who wrote separately but concurred in the opinion of the Court,

and Judge Rogers, who dissented) rejected McGahn’s claim to absolute im-

munity.

Like the district court judge in Miers (and the district court judge

from whose opinion McGahn had appealed), Henderson and Rogers con-

cluded that McGahn should appear before the committee, at which point he

could object to particular requests on executive privilege or other grounds.

However, two of the three panel judges (Judge Griffith, who wrote for the

Court and Judge Henderson) held that the Committee lacked standing to seek

judicial enforcement of the subpoena.

Although the panel left open the pro-

spect of congressional standing under narrow circumstances in future

cases,

the decision, for the most part, rejects congressional committee ac-

cess to courts to enforce subpoenas to current or former Presidential advi-

sors.

30. See, e.g., Shaub, supra note 27, at 40, 44 (identifying the “seeds of the prophylactic executive

privilege” in Cheney and noting that “a protective assertion” made to stave off more specific claims of

privilege “dispenses with any need to analyze the specific information” and congressional needs for the

same).

31. See Charlotte Butash & Margaret Taylor, Oral Arguments in the D.C. Circuit En Banc Consid-

eration of Committee on the Judiciary v. McGahn and U.S. House of Representatives Mnuchin,

AWFAREBLOG.COM (Apr. 29, 2020), [https://perma.cc/WR5D-TK3L].

32. Comm. on the Judiciary of the U. S. House of Representatives v. McGahn, No. 19-5331 at 37

(D.C. Cir. Feb. 28, 2020).

33. See infra note 34.

34. McGahn, No. 19-5331 at 38, 48–50, 53–57 (Henderson, J., concurring); id. at 72–74 (Rogers,

J., dissenting).

35. Id. at 7–12, 37.

36. Specifically, the majority declined to decide whether standing would exist should a Committee

have statutory authorization, rather than rely solely on internal congressional rules, to issues subpoenas.

Id. at 35–36.

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2020] PRECEDENT AND PRIVILEGE 525

In his opinion for the panel, Judge Griffith stressed that Congress has

other means available to it to obtain information that concerns the President:

“Congress (or one of its chambers) may hold officers in contempt, withhold

appropriations, refuse to confirm the President’s nominees, harness public

opinion, delay or derail the President’s legislative agenda, or impeach recal-

citrant officers.”

Congress can do these things, he added, “without dragging

judges into the fray.”

As Judge Rogers pointed out in her dissent, however,

there are serious practical limits on Congress’ ability to bring contempt pro-

ceedings, including a longstanding Justice Department policy against prose-

cuting criminal contempt actions against executive branch officials who

refuse to testify for executive privilege based reasons.

Impeachment also

is more intertwined with judicial enforcement than Judge Griffith suggests,

as I discuss in Part III. Most fundamentally, Judge Griffith overlooks the

reality that information disputes between Congress and the White House take

place in the shadow of judicial enforcement, even in the bulk of cases that

never make their way to a courthouse. As Judge Rogers writes, “[a]t least

since the 1970s, the political Branches have negotiated their informational

disputes against the backdrop of possible resort to the courts. By foreclosing

that possibility going forward, the panel would diminish the incentive the

executive branch might have to reach an accommodation.”

II.

ISTORY’S GLOSS AND THE EXECUTIVE’S OTHER TOOLS

Judicial precedents thus contain ample ammunition for administrations

to use in fighting with Congress over information. The ammunition’s power

is compounded by several other advantages. First, administrations benefit

greatly from being the parties who possess the sought-after information. As

such, the status quo intrinsically favors them.

In recognizing a constitu-

tional executive privilege, let alone a presumptive one with broadly articu-

lated bases, courts give Presidents a valuable means to prolong the status

quo. The most obvious way for administrations to achieve this is by formally

citing the privilege and triggering litigation, beginning a drawn-out process

of inter-branch negotiation, or leading legislators simply to abandon their

quest for information. Administrations can achieve similar ends—the latter

37. Id. at 13.

38. Id.

39. Id. at 69–71 (Rogers, J., dissenting).

40. Id. at 81 (Rogers, J., dissenting).

41. See Shaub, supra note 27, at 9 (quoting Memorandum for John D. Ehrlichman, Assistant to the

President for Domestic Affairs, from William H. Rehnquist, Assistant Attorney General, Office of Legal

Counsel, Re: Power of Congressional Committee to Compel Appearance or Testimony of “White House

Staff,” at 6–7 (Feb. 5, 1971)).

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526 CHICAGO-KENT LAW REVIEW [Vol 95:2

two being especially important in light of litigation’s infrequency and the

hurdles to initiating it—without formally citing the privilege. Instead, they

might simply allude to separation of powers concerns or suggest that they

wish to preserve the option of invoking the privilege at a later date.

Second, the executive branch has a formidable legal infrastructure at its

disposal, one unmatched by any congressional equivalent.

In particular, the

executive can call upon the resources of the Department of Justice and its

Office of Legal Counsel (“OLC”).

OLC’s legal opinions are enormously

influential, in part because they fill the void caused by the relative rarity of

judicial interference in executive power disputes.”

OLC is well equipped

to draw on the handful of existing judicial opinions on executive privilege,

which themselves tilt in favor of executive power on the whole.

Subsequent

OLC opinions can and do, of course, draw on past OLC opinions, contrib-

uting to a ratchet effect in favor of executive power.

More so, OLC—as well as those engaged in informal inter-branch ne-

gotiations or litigation—frequently draw upon “the historical gloss of polit-

ical branch precedents to support present-day executive actions. The

supported actions themselves can become precedent for future administra-

tions to cite, contributing to a one-way ratchet toward enhanced presidential

power and secrecy.”

Modern presidential administrations have invoked ex-

ecutive privilege precedent in ways that keenly reflect this phenomenon. For

example, President Eisenhower’s Administration was the first to coin the

term “executive privilege” and the first to invoke the candor rationale to sup-

port it.

It also took the view that “the President and the heads of depart-

ments have an uncontrolled discretion to withhold . . . information and

42. Kitrosser, supra note 10, at 557–58. Indeed, the mismatch between executive and congressional

legal resources “has been exacerbated over the past couple of decades. In this timeframe, Congress has—

for reasons themselves attributed by observers to a party-over-institution ethic—taken a hatchet to its own

internal sources of expertise.” Id. at 558.

43. See, e.g., Trevor Morrison, Stare Decisis in the Office of Legal Counsel, 110 C

OLUM.L.REV.

1448, 1451 (2010) (describing OLC’s role and importance).

44. Kitrosser,supra note 10, at 557 (citing J

ACK GOLDSMITH, THE TERROR PRESIDENCY 32, 96–

97 (2007)); Morrison, supra note 43, at 1451. See also Shaub, supra note 27, at 9 (explaining that, “since

Watergate,” the executive branch has “honed and developed” a “comprehensive doctrine of executive

privilege . . . in White House statements, OLC opinions, letters to Congress, and court filings.”).

45. See infra Part I. For discussions of OLC’s own institutional bias toward executive power, see,

for example, Morrison, supra note 43, at 1455, 1501–02; William P. Marshall, Eleven Reasons Why Pres-

idential Power Expands and Why it Matters, 88 B.U.

L. R

EV. 505, 511–12 (2008).

46. See, e.g.,Dawn E. Johnsen, What’s a President to Do? Interpreting the Constitution in the

Wake of Bush Administration Abuses, 88 B.U.

L. R

EV. 395, 398 (2008); Marshall, supra note 45, at 511.

47. Kitrosser, supra note 10, at 558. See Marshall, supra note 45, at 510–14.

48. See R

OZELL, supra note 11, at 40; Archibald Cox, Executive Privilege, 122 U. PA.L.REV.

1383, 1433 (1974).

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2020] PRECEDENT AND PRIVILEGE 527

papers in the public interest.”

To support these sweeping claims, Eisen-

hower’s Deputy Attorney General, William Rogers, submitted a memoran-

dum (“the Rogers memorandum”) to a Senate subcommittee, reciting

purportedly analogous historical precedents.

The Rogers memorandum and its influence illustrate one problem with

the use of historical gloss. That is, the tendency of those invoking it to cite

relatively mild past exertions of power to support bolder, present-day ac-

tions.

In the case of the Rogers memorandum, the cited examples do not

bear the weight placed on them. For example, historian J.R. Wiggins ob-

served in 1963 that, of the two episodes that Rogers cited from the Washing-

ton Administration: “‘The first . . . turns out to be a case wherein the

President, without any objection, furnished all the papers which the Congress

requested,’ while the second ‘did not involve at all the President’s broad

powers to withhold, but related to the treaty powers of the House.’”

Other

scholars have pointed out the inadequacy of Roger’s examples.

“Nonethe-

less, the Rogers memorandum was treated as a ‘bible for the executive

branch’ for years, and modern administrations continue to trace the notion

of a sweeping executive privilege back to the Washington Administration.”

Relatedly, insofar as historical gloss arguments rely on the notion that

past congresses acquiesced in the executive branch’s actions,

they ignore

the “reality of how the political branches actually interact.”

They assume a

Madisonian model, whereby each political branch is motivated to guard its

institutional prerogatives and to check encroachments by the other.

The

well-documented reality, however, is quite the opposite. Due to the structural

differences between the branches and other factors including partisanship,

49. Texts of Eisenhower Letter and Brownell Memorandum on Testimony in Senate Inquiry, N.Y.

IMES, May 17, 1954, at 24.

50. Kitrosser, supra note 10, at 555 (citing William P. Rogers, Constitutional Law: The Papers of

the Executive Branch, 44 A.B.A. J. 941 (1958)).

51. See Heidi Kitrosser, It Came From Beneath the Twilight Zone: Wiretapping and Article II Im-

perialism, 88 T

EX.L.REV. 1401, 1405, 1409–14, 1421–24 (2010) (explaining that defenders of a presi-

dential power to circumvent statutory limits draw misleadingly from historical episodes that did not entail

such radical claims).

52. J.R. Wiggins, Lawyers as Judges of History,75 P

ROCEEDINGS OF THE MASS.HISTORICAL

SOC’Y 84, 103 (1963) (cited in Kitrosser, supra note 10, at 555).

53. See sources cited in Kitrosser, supra note 10, at 556 n.42.

54. R

AOUL BERGER,EXECUTIVE PRIVILEGE:ACONSTITUTIONAL MYTH 164 (1974) (cited in

Kitrosser, supra note 10, at 556).

55. Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126

ARV.L.REV. 411, 432 (2012) (explaining that commentators frequently treat historical gloss as consti-

tutionally significant “only if [one] branch can be deemed to have acquiesced in the practice [of the other

branch] over time.”).

56. Id. at 414.

57. Id. at 438–40.

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congresspersons by and large are not consistently driven by a desire to pro-

tect their institution. Presidents, on the other hand, generally are so moti-

vated.

This political asymmetry is compounded by structural imbalances,

including the President’s possession of the relevant secrets in the first place

and his access to a vast and protective infrastructure, including OLC.

Historical gloss is invoked by courts, as well as the executive branch.

Indeed, the two uses can intertwine, with courts adopting arguments made

by the executive in litigation, and the latter informed by OLC opinions.

The panel decision in McGahn exemplifies this phenomenon. Judge Griffith

dismissed Senate Select Committee and a few other cases in which “courts

in [the D.C.] circuit . . . agreed to resolve . . . interbranch information dis-

putes” as “innovations of the 1970s.”

The longer and more important his-

tory, he said, was the nearly two centuries prior to the 1970s, when

“interbranch information disputes” took place but “‘neither branch thought

to submit [them] to the courts.’”

To support his point, Griffith cites one of

the Washington Administration episodes recounted in the Rogers memoran-

dum.

He also references episodes collected in a 1982 OLC memorandum.

Judge Griffith’s reasoning illustrates the potential pitfalls of historical

gloss and the tendency of such errors to favor the executive. First, many of

the executive branch precedents recounted in the 1982 OLC memorandum

bear little resemblance to the Trump Administration’s blanket claim of testi-

monial immunity. For example, the episodes cited from the first three presi-

dential administrations amount, at most, to reasoned explanations by

Presidents regarding their decisions to withhold specific documents or pieces

of information.

In some cases, the requesting congressional body itself in-

vited the President to withhold such parts as he deemed appropriate.

broadly, Judge Griffith ignores the historical evolution of executive privilege

disputes from case-by-case, fact-driven negotiations over particular items of

information, to categorical refusals to turn over entire classes of

58. Id.

59. See supra notes 41–46 and accompanying text.

60. See supra notes 44–45 and accompanying text.

61. Comm. on the Judiciary of the U. S. House of Representatives v. McGahn, No. 19-5331 at 14

(D.C. Cir. Feb. 28, 2020).

62. Id. at 12–13 (citation omitted).

63. Id. at 17 (citing the same incident as recounted in a different document, this one a 1982 opinion

by OLC: History of Refusals by Executive Branch Officials to Provide Information Demanded by Con-

gress, 6 Op. O.L.C. 751, 752–53 (1982)).

64. Id. at 17 (referencing other examples from Memorandum from the Office of Legal Counsel to

the Attorney General, infra note 65).

65. Memorandum from the Office of Legal Counsel to the Attorney General 752–55 (Dec. 14,

1982).

66. Id. at 752, 754.

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information.

Indeed, the dawn of an era of modern, categorical conceptions

of executive privilege is epitomized by the coining of the privilege’s name

and the development of the sweeping candor rationale in the Eisenhower

Administration.

When considered in light of this historical trajectory, the

case law of the 1970s appears to be an unsurprising response to new devel-

opments rather than a kooky experiment of the times. Finally, the McGahn

majority overlooks practical asymmetries between the executive and the leg-

islature that make difficult and unlikely the defensive legislative maneuvers

suggested by Judge Griffith.

III. T

RUMP:BUILDING ON THE (PRECEDENTIAL)INHERITANCE

President Trump thus is hardly the first to use executive privilege ag-

gressively. The candor rationale, for example, was developed well before the

Trump Administration. This Administration also was not the first to claim

full testimonial immunity for high-level advisors, to urge courts to stay out

of executive privilege disputes, or to attempt to reap the privilege’s benefits

without formally claiming it.

The Trump Administration has, however, combined some newly ag-

gressive uses of the privilege with a broader campaign against accountability

that seeks effectively to immunize the President from meaningful congres-

sional oversight.

As for executive privilege, President Trump has broken

new ground in two main respects. First, his Administration has made regular

and especially bold use of a prophylactic privilege

—that is, of the mere

possibility that Trump might one day wish to invoke the privilege—as a basis

for refusing to disclose information. Second, combining multiple bases for

non-cooperation, including testimonial immunity and a type of prophylactic

privilege,

Trump issued a sweeping directive to his entire Administration

forbidding cooperation with any congressional requests for information

67. Shaub, supra note 27 (discussing this evolution); HEIDI KITROSSER, RECLAIMING

ACCOUNTABILITY 88–94 (2015).

68. See Texts of Eisenhower Letter and Brownell Memorandum on Testimony in Senate Inquiry,

supra note 49.

69. See supra note 28 and accompanying text.

70. See Shaub, supra note 27, at 39 (drawing a similar conclusion: “[T]he Trump Administration’s

positions reflect the extremity of the executive branch doctrine that has been developing for some time.

Although some positions are undoubtedly new – and extreme – they are grounded in the same theoretical

construct” as previous assertions).

71. Schaub does a very impressive deep dive into the concept and history of a prophylactic execu-

tive privilege in Schaub, supra note 27.

72. See infra notes 86–90 and accompanying text.

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relating to the recent impeachment proceedings.

More so, all of this has

taken place against a backdrop in which the President has repeatedly sought

to stifle unwelcome information and opinions in other ways, including

openly retaliating against members of his Administration who did testify in

the impeachment proceedings and threatening the whistleblower who first

raised an alarm over the events that led to those proceedings.

The Trump Administration invoked a prophylactic privilege in newly

expansive ways well before the events that precipitated impeachment took

place. Indeed, over a few weeks in the summer of 2017 alone, several Ad-

ministration officials refused to answer any congressional questions involv-

ing their conversations with the President or with other high-level officials,

purportedly to preserve the President’s ability to assert executive privilege

at some point regarding such conversations.

The news media reported on

these events, particularly after then-Attorney General Jeff Sessions used the

prophylactic privilege (or the “non-privileged privilege,” as law professor

Stephen Vladeck called it during a radio program discussion about Sessions’

testimony).

In response to this attention, the Administration turned to his-

tory’s gloss. Among other things, the Justice Department circulated two

1982 memoranda: an OLC opinion discussing the nature and scope of exec-

utive privilege for communications between the Attorney General and the

President, and a memorandum from President Ronald Reagan to the heads

73. Letter from Pat A. Cipollone, Counsel for President Trump, to Nancy Pelosi, House Speaker;

Eliot L. Engel, Chairman of Foreign Affairs Comm.; Adam B. Schiff, Chairman of Permanent Select

Comm. on Intelligence; and Elijah E. Cummings, Chairman of Comm. on Oversight and Reform 7 (Oct.

8, 2019) [hereinafter Cipollone Letter] (“President Trump cannot permit his Administration to participate

in this partisan inquiry under these circumstances”); id. at 8 (“the President cannot allow your constitu-

tionally illegitimate proceedings to distract him and those in the Executive Branch from their work on

behalf of the American people.”). See also Michael Stern, Why Officials Keep Testifying Despite White

House Counsel’s Letter on Impeachment Inquiry, J

UST SECURITY (Oct. 28, 2019), https://www.justsecu-

rity.org/66742/why-officials-keep-testifying-despite-white-house-counsels-letter-on-impeachment-in-

quiry/ [https://perma.cc/2SJ7-9Z23] (explaining that Cipollone undoubtedly expected that his letter

“would be understood as a directive that [current executive branch] employees should not testify before

Congress in connection with the impeachment inquiry,” and citing a federal judge’s understanding that

“‘the White House has flatly stated that the Administration will not cooperate with congressional requests

for information.’”).

74. I described some of the President’s earliest threats against the whistleblower in Heidi Kitrosser,

Don’t Forget the Cover-Up(s): On Trump’s Abuse of the Executive’s Secret-Keeping Powers, ACS

(Sept.

30, 2019), https://www.acslaw.org/expertforum/dont-forget-the-cover-ups-on-trumps-abuse-of-the-ex-

ecutives-secret-keeping-powers/ [https://perma.cc/4TH6-L8RH]. For discussion of the President’s retal-

iatory actions during and following the impeachment proceedings, see, for example, Maggie Haberman

et al., Trump to Fire Intelligence Watchdog Who Had Key Role in Ukraine Complaint, N.Y.

IMES (Apr.

3, 2020), https://www.nytimes.com/2020/04/03/us/trump-inspector-general-intelligence-fired.html

[https://perma.cc/V7HA-6NNB].

75. I discuss the summer 2017 events in detail in Kitrosser, supra note 10.

76. Id. at 547 n.6 (quoting All Things Considered: In Refusal to Answer Questions, Sessions Denies

Claiming Executive Privilege,N

ATIONAL PUBLIC RADIO (June 13, 2017)).

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2020] PRECEDENT AND PRIVILEGE 531

of executive departments and agencies, entitled “Procedures Governing Re-

sponses to Congressional Requests for Information.”

As I have detailed

elsewhere, however, the Trump Administration acted far more aggressively

than either memorandum prescribed or purported to authorize. For example,

the Reagan memorandum stressed that “executive privilege will be asserted

only in the most compelling circumstances,” and only as a last resort when

“good faith negotiations” fail.

The same memorandum also instructed that,

in the rare cases in which “it is determined that compliance [with a congres-

sional request] raises a substantial question of executive privilege,” Congress

should be asked to hold its request in abeyance while the Administration de-

termines whether to comply or to invoke executive privilege.

Neither Ses-

sions nor the other Trump Administration officials invoking the prophylactic

privilege, however, followed up after refusing to answer questions.

Nor, to

their discredit, did the congressional committees that sought the information

in the first place.

The Trump Administration upped the ante further after the House of

Representatives initiated impeachment inquiries in the fall of 2019. On Oc-

tober 8th, Pat Cipollone, the counsel to the President, sent a scathing letter

to Speaker of the House Nancy Pelosi and three House committee chairs,

decrying the impeachment process as a “naked political strategy” being

“used by a political party that fear[s] for its prospects against the sitting Pres-

ident in the next election.”

Cipollone also accused the House Democrats of

relying on unfair procedures because they “know that a fair process would

expose the lack of any basis for [their] inquiry.”

Given these objections,

Cipollone announced that “President Trump cannot permit his Administra-

tion to participate in this partisan inquiry under these circumstances.”

As Cipollone’s letter promised, the White House refused to cooperate

with any of the House’s requests for information and urged all administration

officials to follow suit.

Ultimately, the Administration broke its justifica-

tions for this position into three main categories: testimonial immunity; the

notion that House committees had no legitimate legislative or oversight

77. See Kitrosser, supra note 10, at 562–64.

78. Memorandum from President Ronald Reagan to the Heads of Executive Departments and

Agencies 1 (Nov. 4, 1982).

79. Id. at 2.

80. Kitrosser, supra note 10, at 561.

81. Id.

82. Cipollone Letter, supra note 73, at 5.

83. Id. at 6.

84. Id. at 7.

85. See supra note 73.

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reasons to request information until the House formally voted to initiate im-

peachment proceedings in late October; and the fact that agency counsel (but

not outside counsel) were barred from participating in depositions of agency

officials.

To support these rationales, the President relied heavily on OLC

opinions, including several solicited by the Administration in the course of

the impeachment proceedings.

For example, the administration explained

that it concluded, “only after securing advice from” OLC, that “all subpoenas

issued before the adoption of” the House impeachment resolution “were un-

authorized and invalid” and remained so even after the resolution was

adopted.

Although the OLC opinion that it cited to this effect was dated

January 19, 2020—one day before the Administration filed its impeachment

trial memorandum making this argument and several months after the sub-

poenas were issued

—it explained that OLC had provided this advice orally

and then “memorialized” it in its written opinion of January 19th.

The Administration’s blanket rejection of any and all impeachment-re-

lated congressional information requests marks a dangerous apotheosis in

the history of executive privilege thus far—more precisely, in the history of

executive privilege and its shadow effect, since the Trump Administration

did not formally invoke executive privilege in the impeachment proceed-

ings.

As we have seen, executive privilege for decades has been invoked

(or alluded to without formal invocation) in service of increasingly broad,

even categorical refusals to produce entire categories of witnesses or docu-

mentary information.

In this case, the President cobbled together three ra-

tionales—each tenuous in its own right—to justify a complete, non-

negotiable rejection of any and all congressional information requests relat-

ing to impeachment. Apart from this refusal’s sheer breadth, it is alarming

that it was tendered in the face of a presidential impeachment investigation.

With the possible exception of a single re-election opportunity, impeachment

is the most significant means by which a coordinate political branch, and

through it American voters, may investigate and check presidential abuses

of power. Indeed, impeachment offers a considerably more focused oppor-

tunity for oversight and accountability than does re-election. In a presidential

86. Trial Memorandum of President Donald J. Trump (for Senate Impeachment Proceedings) at 2–

3, 35–46.

87. Id.

88. Id. at 37 n.2.

89. Id. at 37 n.253.

90. Id. at 2 n.11.

91. See Shaub, supra note 27, at 58 (explaining that the Trump Administration did not formally

invoke executive privilege in the House or Senate impeachment proceedings).

92. See supra Part I.

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2020] PRECEDENT AND PRIVILEGE 533

election, each voter has but a single vote in which to channel all of their

concerns about a plethora of matters including domestic policy, foreign pol-

icy, personal fitness, and corruption. An impeachment process, in contrast,

hones in on identified, alleged abuses of power. It also serves as a potential

curative for abuses that themselves taint elections, including presidential ef-

forts to shield politically damaging information from public view.

The House conveyed its own concern about these developments in its

second article of impeachment.

The first article charged President Trump

with “abuse of power” for attempting to condition U.S. aid to Ukraine on

Ukraine’s investigating Trump’s domestic political rival.

The second arti-

cle charged Trump with “obstruction of Congress.”

The House did not base

the second article on any particular refusal to produce information. Rather,

it emphasized the totality of the Administration’s intransigence, charging

that the President “sought to arrogate to himself the right to determine the

propriety, scope, and nature of an impeachment inquiry into his own conduct,

as well as the unilateral prerogative to deny any and all information to the

House of Representatives in the exercise of its ‘sole Power of Impeach-

ment.’”

In its trial brief to the Senate, the House observed as well that the

President attempted “to penalize and intimidate” those Administration mem-

bers who defied him and cooperated with the House.

“These efforts in-

cluded President Trump’s sustained attacks on the anonymous

whistleblower, and his public statements designed to discourage witnesses

from coming forward and to embarrass those who did testify.”

The President argued, of course, that both Articles of Impeachment

should be rejected. With respect to the second article, he emphasized that he

had merely sought to protect the constitutional prerogatives of his office in

refusing to comply with subpoenas.

Indeed, he warned that the House itself

endangered the separation of powers by seeking to impeach him for exercis-

ing those prerogatives.

100

The President also insisted that the House had

available to it and should have used other means short of impeachment to

93. Articles of Impeachment Against Donald J. Trump, Article II: Obstruction of Congress.

94. Articles of Impeachment Against Donald J. Trump, Article I: Abuse of Power.

95. Articles of Impeachment Against Donald J. Trump, Article II: Obstruction of Congress.

96. Id. In their trial brief to the Senate, the House Impeachment Managers elaborated that “Presi-

dent Trump is an aberration among Presidents in refusing any and all cooperation in a House impeach-

ment investigation,” recounting that “even President Nixon produced numerous documents in response

to Congressional subpoenas” and instructed White House staff members to testify under oath when re-

quested by the House. House Impeachment Brief in the Impeachment of Donald J. Trump, at 33.

97. House Impeachment Brief in the Impeachment of Donald J. Trump, at 35.

98. Id.

99. Trump Impeachment Brief in the Impeachment of Donald J. Trump, at 2–4, 35–36, 47–50.

100. Id.

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enforce its subpoenas, including turning to the courts for relief.

101

By by-

passing these other avenues, Trump concluded, the House had declared itself

“supreme not only over the Executive Branch, but also over the Judicial

Branch.”

102

At the same time that the President made these arguments to the

Senate, however, the Department of Justice argued in McGahn and in an-

other impeachment subpoena case that “Congressional Committees cannot

sue the Executive Branch to enforce their subpoenas.”

103

As we have seen,

this argument prevailed before a panel of the D.C. Circuit in McGahn.

104

For

its part, the McGahn panel observed that, among the House’s alternatives to

seeking judicial relief is its ability to “pass[] articles of impeachment.”

105

ONCLUSION:THE TRUMP ERA AND THE GLOSS OF HISTORY

On February 5, 2020, the Senate voted to acquit President Trump on

both counts of impeachment.

106

On the first count, for abuse of power, one

Senator—Republican Mitt Romney of Utah—became the first ever to vote

to convict a President of his own party in an impeachment trial.

107

Romney

joined all other Senate Republicans by voting to acquit on the second count,

for obstruction of Congress.

108

With respect to the second count, Romney

“acknowledged that Trump threw up ‘a barrage of efforts’ to keep the House

from receiving documents or testimony from key Administration officials

with firsthand knowledge.”

109

He concluded, however, that Trump “‘did

101. Id. at 49–50.

102. Id. at 50. Similarly, the Senate Majority Leader, Republican Mitch McConnell of Kentucky,

maintained that the House was required to turn to the courts to enforce its subpoenas. Bob Bauer, The

Trump Impeachment and the Question of Precedent, L

AWFARE (Jan. 16, 2020), https://www.lawfare-

blog.com/trump-impeachment-and-question-precedent [https://perma.cc/NT2J-BURE].

103. House Impeachment Brief in the Impeachment of Donald J. Trump, at 39 n.228 (citing Brief

for Def-Appellant at 2, 32–33; Committee on the Judiciary v. McGahn, No. 19-5331 (D.C. Cir. Dec. 9,

2019); Def.’s Mot. To Dismiss or in the Alternative, for Summ. J. at 19–20; Kupperman v. U.S. House

of Representatives, No. 19–3224 (D.D.C. Nov. 14, 2019)). See also Kyle Cheney, House Withdraws

Subpoena for Top Bolton Aide, P

OLITICO (Nov. 6, 2019), https://www.polit-

ico.com/news/2019/11/06/house-withdraws-bolton-aide-subpoena-066941 [https://perma.cc/ZN69-

SPQY] (discussing withdrawal of Kupperman subpoena).

104. See supra Part I.

105. McGahn, No. 19-5331 at 14.

106. Nicholas Fandos, Trump Acquitted of Two Impeachment Charges in Near Party-Line Vote,

N.Y.

IMES (Feb. 5, 2020), https://www.nytimes.com/2020/02/05/us/politics/trump-acquitted-impeach-

ment.html [https://perma.cc/627T-SQDP].

107. Id.

108. Id.

109. Dan Balz & Robert Costa, Romney Votes to Convict Trump on Charge of Abuse of Power,

becoming the Lone Republican to Break Ranks,W

ASH.POST (Feb. 5, 2020), https://www.washing-

tonpost.com/politics/with-his-vote-to-convict-trump-on-abuse-of-power-romney-will-break-with-his-

party—and-awaits-the-consequences/2020/02/05/a76dce74-4841-11ea-ab15-b5df3261b710_story.html

[https://perma.cc/R7XK-GKYK].

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2020] PRECEDENT AND PRIVILEGE 535

follow the law, and the House did not take the time to go to the courts as . . .

they should have.’”

110

Some commentators have lamented that the acquittal vote sets a dam-

aging precedent. They express fear that future Presidents will refuse to co-

operate with congressional impeachment investigations, pointing to Trump’s

example to legitimate their intransigence.

111

Such concerns are heightened

by the fact that President Trump not only refused to cooperate; he also sought

repeatedly to intimidate the anonymous whistleblower who precipitated the

proceedings.

112

Indeed, one Senator—Republican Rand Paul of Kentucky—

attempted several times to “out” the whistleblower’s identity, an effort ap-

plauded by President Trump and several other congressional Republicans.

113

There are, of course, valid bases to fear the precedent-setting effect of

these events. As we have seen, presidential power tends to expand over time.

More so, historical gloss is among the agents of its progress. Yet not every

step forward for presidential power augers additional movements in the same

direction. Occasionally, missteps are identified as such, and course correc-

tions are made.

Indeed, scholars increasingly take a nuanced look at presidential prece-

dent, examining the circumstances under which it warrants (or does not war-

rant) adherence—and under which it is likely to gain (or not to gain) as

much—in future administrations. For example, Deborah Pearlstein considers

in a new paper how presidential actions sometimes come to be treated, in

time, as anti-canonical.

114

And Josh Chafetz and David Pozen recently

crafted a taxonomy of ways in which constitutional norms break down.

115

110. Id.

111. See, e.g., Bauer, supra note 102; Harry Litman, Will Acquittal Kill the Impeachment Clause?

The Voters Get the Final Say, W

ASH.POST (Feb. 5, 2020, 6:00 AM). https://www.washing-

tonpost.com/opinions/2020/02/05/will-acquittal-kill-impeachment-clause-voters-get-final-say/

[https://perma.cc/68L6-ERA8]; Donna Brazile, Trump’s Politically-Driven Acquittal Sets Horrible Prec-

edent, Weakens Rule of Law, F

OX NEWS (Feb. 5, 2020), https://www.foxnews.com/opinion/donna-bra-

zile-trump-acquittal-in-impeachment-trial-will-go-down-in-history-as-a-sad-day-for-democracy

[https://perma.cc/BCR4-YB6E].

112. See Kitrosser, supra note 74.

113. See, e.g., Kyle Cheney & Burgess Everett, Rand Paul Reads Alleged Whistleblower’s Name

and Republicans ‘Fine’ With It, P

OLITICO (Feb. 4, 2020), https://www.polit-

ico.com/news/2020/02/04/rand-paul-reads-alleged-whistleblowers-name-senate-floor-110684

[https://perma.cc/7MTT-YV3Z]; Bobby Allyn, Trump is Criticized After Sharing Name of Alleged Whis-

tleblower on Twitter, NPR (Dec. 29, 2019), https://www.npr.org/2019/12/29/792222297/trump-comes-

under-fire-after-sharing-name-on-twitter-of-alleged-whistleblower [https://perma.cc/W3EX-K3QJ];

Adam Gopnik, Why is Trump Obsessed with Outing the Whistle-Blower?, N

EW YORKER (Nov. 7, 2019),

https://www.newyorker.com/news/daily-comment/why-is-trump-obsessed-with-outing-the-whistle-

blower [https://perma.cc/6NDG-S97C].

114. See Pearlstein, supra note 9.

115. Josh Chafetz & David Pozen, How Constitutional Norms Break Down, 65 UCLA

L. R

EV. 1430,

1435–36 (2018).

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They suggest, among other things, that brazen and abrupt course deviations

are more likely to engender backlash than are incremental shifts over time.

116

As for Donald Trump’s intransigence toward congressional oversight,

its legacy is yet unwritten. At least two aspects of it could, indeed, lend them-

selves to a ratchet effect. First, Trump’s behavior can be linked to a historical

trajectory of expanded executive power, enabling his Administration—and

future Presidents and their allies—to treat it as relatively unremarkable in

nature. Second, the sheer amount of norm-flouting in the Trump Administra-

tion

117

makes it difficult for the public, the media, and political opponents to

sustain a focus on any one example. Trump may shift the ground beneath us

partly by exhausting us.

118

On the other hand, the volume and magnitude of Trump’s eyebrow-

raising behavior—including his scorched earth approach to defying an im-

peachment investigation—might have quite the opposite effect. That is, they

might lead legal elites, politicians, and the public to look closely at the

broader historical trajectory in which Trump seeks to place himself. Perhaps

Trump’s actions will—like those of Richard Nixon years earlier—generate

a broader rethinking of this arc, with its expansive conceptions and uses of

executive privilege. Neither course is inevitable. The path or paths taken will

depend, quite simply, on our arguments and actions today, and those of fu-

ture generations tomorrow.

116. Id. at 1435.

117. Chafetz and Pozen allude to some notable examples from the Trump administration. As they

put it:

[W]e think we can safely say that it is bad for a president or presidential candidate to: lie constantly, deny

the validity of fairly administered elections, threaten to jail political opponents, maintain business inter-

ests while in public office in a manner that invites foreign governments and political allies to funnel

money toward those interests, make racist remarks and wink at white supremacists, strive to delegitimize

the press, invite a foreign government to interfere in American electoral processes, appoint unqualified

friends and family members to important government positions, and so on.

Id. at 1451.

118. Many political commentators have referred to the phenomenon of “Trump fatigue.” See, e.g.,

Jack Shafer, Trump Fatigue? Spare Me, P

OLITICO (Dec. 17, 2019), https://www.politico.com/news/mag-

azine/2019/12/17/spare-me-your-trump-exhaustion-086597 [https://perma.cc/8DF7-SCW8] (citing sev-

eral examples of such commentary).