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The Pence subpoena could set up a showdown over executive privilege

The subpoena of former Vice President Mike Pence by the Department of Justice could set up a showdown over executive privilege.

Former President Donald Trump has repeatedly invoked the legal protection to block testimony of his allies and subpoenas related to the Jan. 6, 2021, attack on the U.S. Capitol. He may do so again in response to Pence’s subpoena.

Pence’s role in presiding over the electoral certification process made him a central figure in the Jan. 6 proceedings. In the days and hours before the mob attacked the Capitol, Trump subjected his vice president to intense pressure to overturn the 2020 election results. Pence was also present during several critical meetings with Trump and his allies ahead of Jan. 6.

There are not many details known about the subpoena issued to Pence by Jack Smith, the special counsel appointed late last year by Attorney General Merrick Garland. Smith is investigating Trump’s role in the Jan. 6 attack, as well as a probe into the former president’s handling of classified documents.

What is executive privilege?
Executive privilege is a legal protection for the president of the United States that allows them to shield some of their private communications from Congress and courts.

«At its core, it’s the idea that some documents and some information — if it were disclosed — would damage, harm the public interest or harm the country in some way,» explained Jonathan Shaub, a former Justice Department official who is now a professor at the University of Kentucky College of Law.

In theory, the protection allows a president’s advisers to give candid advice free from fear of public disclosure, making the president’s deliberations more productive, legal experts explained.

Executive privilege isn’t explicitly stated in the Constitution. Instead, it implicitly stems from Article II, outlining the power of the executive branch, and the separation of powers.

The idea dates to the Nixon administration, when a special prosecutor leading the investigation of the Watergate break-in subpoenaed President Richard Nixon for tapes and transcripts of conversations related to the burglary.

Nixon refused, and the case went to the Supreme Court. Ultimately, Nixon lost and was forced to hand over the tapes (after which he resigned).

What are the limits of executive privilege?
Although the court ruled against Nixon, it ultimately found that there is confidentiality interest in communications between a president and their senior-most advisers. But, the court specified, there’s one very clear limit — executive privilege does not apply when the communications are relevant to a criminal investigation.

For example, in Nixon’s case, the Supreme Court found a compelling interest in the criminal case against the Watergate burglars, since there was a «demonstrated, specific need for evidence in a pending criminal trial.»

Otherwise, the limits of the doctrine are very much a live debate, legal experts said.

«Executive privilege, when it exists, is not absolute. It’s always weighed by courts against the interests served by disclosing the information to the authorities who are seeking it,» Jessica Roth, a professor of law at Yeshiva University, told NPR last year.

It’s also not clear the extent to which a former president can claim it. After Nixon left office, Congress tried to compel him to turn over his presidential records, which he refused to do, citing executive privilege. That case also went to the Supreme Court, which again ruled against him — but left some ambiguity over whether former presidents could assert the privilege in the future.

Practically speaking, most disputes over executive privilege have been resolved through compromise between those asking for the documents or testimony, and those providing, legal experts said.

How has it come up in regards to Jan. 6?
Trump has argued many times before that his communications related to Jan. 6 are privileged. Those claims have not always been successful.

The issue arose repeatedly during the House committee’s investigation of the Jan. 6 attack on the Capitol. The committee subpoenaed numerous Trump aides and advisers, several of whom refused to testify on the basis of executive privilege. (The DOJ brought criminal charges for two of those advisers: One, Steve Bannon, was found guilty of contempt of Congress after his refusal to testify. The contempt case against another, Peter Navarro, is expected sometime this year.

Trump also tried to sue the heads of the House select committee and the National Archives to block the release of Jan. 6-related documents, but a court ruled against him last year.

The former president has also tried to use executive privilege to block testimony to a federal grand jury, but those efforts have been less successful, the New York Times has reported.

A subpoena issued by the Department of Justice is harder to ignore, said Victoria Nourse, a former DOJ official who also served as chief counsel to the vice president of the United States under then-Vice President Joe Biden. Congressional subpoenas can lack teeth because the process to get a judge to enforce them can be slow, she explained.

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Public Notices

Japan just found 7,000 islands it didn’t know it had

Japan has recounted its islands – and discovered it has 7,000 more than it previously thought.

Digital mapping by the Geospatial Information Authority of Japan (GSI) recently found there to be 14,125 islands in Japanese territory, more than double the figure of 6,852 that has been in official use since a 1987 report by Japan’s Coast Guard.

However, the GSI this week stressed that the new figure reflected advances in surveying technology and the detail of the maps used for the count – it did not change the overall area of land in Japan’s possession.

It said that while there is no international agreement on how to count islands, it had used the same size criterion as the previous survey 35 years ago.

That entailed counting all naturally occurring land areas with a circumference of at least 100 meters (330 feet).

The new number does not include any artificially reclaimed land.

The islands surrounding Japan have been at the heart of several territorial disputes.

Japan lays claim to the Russian-held southern Kuril islands, which Tokyo calls the Northern Territories, a dispute that dates to the end of World War II, when Soviet troops seized them from Japan.

Japan also says it has a historical claim to the uninhabited Senkaku Islands in the East China Sea, which it currently administers, but China has repeatedly challenged that claim.

Meanwhile, Japan and South Korea remain locked in a more than 70-year dispute over the sovereignty of a group of islets known as Dokdo by Seoul and Takeshima by Tokyo in the Sea of Japan, which Korea calls the East Sea.

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Yosemite National Park to partially reopen after 3-week closure

Yosemite National Park will begin to reopen Saturday with limited access and hours, the US National Park Service has announced. The park remains closed today.

The popular park, nestled in the Sierra Nevada mountains, was closed because of a series of damaging storms that have swept across the region in recent weeks.

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Public Notices

Charles and Camilla

Britain’s King Charles III and his wife, Queen Camilla, have been married since 2005. They reportedly met at a polo match in 1970 and became friends when Charles was a prince.

When Charles joined the Royal Navy in 1971, Camilla married cavalry officer Andrew Parker Bowles.

Charles married Diana Spencer in 1981 but then admitted in 1994 that he had been having an extramarital affair with Camilla. Diana confirmed his infidelity and her own the following year.

Camilla got a divorce in 1995, and Charles and Diana divorced in 1996. Camilla all but vanished from public life at the time as public and media support swung behind Diana.

In 1999, Clarence House embarked on a program to reintroduce Camilla to the public with a carefully orchestrated first appearance with Charles outside the Ritz Hotel in London.

Six years later, their decades-long love story culminated in a wedding that had the consent of Charles’ mother, Queen Elizabeth II. Camilla was confirmed as Charles’ official consort and future queen.

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