What Is The Executive Privilege: Its Foundations of Freedom Thursday, a special day of the week where we get to answer questions from you, the listeners! Always answering your questions from constitutional principles! Tune in today as we answer your most pressing questions!

Air Date: 06/20/2019

On-air Personalities: David Barton, Rick Green, and Tim Barton


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Transcription note:  As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

Faith And The Culture

President Thomas Jefferson said, “I know no safe depository of the ultimate powers of the society, but the people themselves. And, if we think them not enlightened enough to exercise their control with a wholesome discretion the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”

RICK:

Welcome to the intersection of faith and the culture. This is WallBuilders Live! Where we’re talking about today’s hottest topics on policy, faith and the culture, always doing that from a Biblical, historical, and Constitutional perspective.

We’re here with David Barton, America’s premier historian and the founder of WallBuilders. Also, Tim Barton, national speaker and President of WallBuilders, and my name is Rick Green, I’m a former Texas state legislator, national speaker, and author.

It’s Foundations of Freedom Thursday, a special day of the week where we get to answer questions from you, the listeners! Always answering your questions from constitutional principles! Tune in today as we answer your questions such as , and so much more, right here on WallBuilders Live!

We look forward to getting your questions. We’re going to dive into as many of those as we can get to today. Those can be questions, by the way, on the Founding Fathers, on the Constitution, on application of constitutional or biblical perspective to whatever is happening in the news today or in the culture.

Those are the things we’re addressing here at WallBuilders Live!

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You can find out more about us at our two websites: WallBuildersLive.com, our radio site. And then, go over to WallBuilders.com, our main site, where we have some great resources. You can take a constitution class or find all kinds of curriculum for your family to study, get into your Sunday school class, or even just for your own learning.

At the radio site, WallBuildersLive.com, you’ll get a list of all our stations. You’ll be able to get into the archives of the program over the last few weeks, where you’ll find interesting interviews, Good News Friday programs, and more. And, you can also make a donation there.

So, be sure to click on that donate button if you like what you hear today and you want more of this education and want to help equip and inspire folks all over the nation to get involved and be a part of the solution for preserving freedom. Donate to WallBuilders Live! It’s what makes this possible.

Baccalaureate Services

All rights, David and Tim, it’s time to dive into those questions. The first one is coming from Wiley Brakebill. He’s asking about the baccalaureate services.

Most people around the country probably just sat in one in the last few weeks. He said, “As graduation season is upon us, I had a question about the baccalaureate service. I’m a teacher at the local high school, and the community hosted the baccalaureate service for graduating seniors. I was curious as to when and why the baccalaureate service began.

“Due to some short, limited research, the best I could find was that it started in the 15th century for graduating students at Oxford to present in Latin. Then, I discovered how controversial it is and how it is under attack for its Christian influence in public schools. “I was wondering if you had any information on the baccalaureate service.

When and why did it begin? Why did it become spiritual in nature? And, is it legally constitutional and why?

“Thank you very much for any information you can provide. I believe this service is beneficial to challenge students spiritually to face the real world in their battle against the principalities and authorities of the dark world. And, if our school is ever told to cease and desist, I want to know the history and legality of the baccalaureate service.” Thank you. Great question, Wiley. Guys, I remember sitting in my baccalaureate service, graduating from a public high school. I’m not going to say how many years ago because it’s getting to be too many.

But, I didn’t even know if they still did this across the country. I guess they do.

Is it Constitutional?

DAVID:

Well, the question is whether it’s constitutional. And, the first answer is: It depends on which Constitution you’re talking about.

RICK:

Constitution or “course-titution”?

DAVID:

That’s right. If you’re talking about the Constitution as written by the Founding Fathers, it is constitutional. If you’re talking about the Constitution as rewritten by the judges, it is not constitutional.

This is a battle. Man, it seems like I was getting involved in these cases 20 to 25 years ago. This is not a new thing.

But, you’ll understand why it became an issue in the court in recent years when you can look back at the history; because, if you look back at history, we have laws addressing baccalaureate services that go back into the 1300s. Well, clearly that’s not America, if you’re back at the 1300’s laws. That is British policy British or whatever.

And so, when you do go to colleges like Oxford, you will find that every student had to give a baccalaureate address. Now, that was also the Founding Fathers practice, because we have lists of students who graduated from Harvard when John Hancock was governor, and every student gives an address. As a matter of fact, we have the addresses that John Quincy Adams gave when he graduated from Harvard.

So, every student gives an address.

RICK:

So, it’s almost kind of like a final presentation, or test, or whatever, saying, “Hey, this is how they’re applying what they learned all these years.”

DAVID:

That’s right. Now, it’s interesting with two other aspects that come into it. One is, every student had to give the address in Latin.

A Rigorous Education

So, since we’re talking kids that would graduate from University and College anywhere from 14, 15, 16, 17, 18 years old, at graduation time it was normal for them to be in the upper teens. They all knew Latin well enough to give an oration in Latin. Looking back to early American education, back to British education, that kind of suggests maybe, a little rigorous education.

It’d be interesting to see how many students today could all give a baccalaureate address, much less than something other than English. English would be pretty good if they could give one. But, in Latin?

So, that’s the first thing. Now, the second thing that makes it of interest is, we call it a “baccalaureate address;” but, it was actually a baccalaureate sermon. Now, the statute was set up so that every student would give a sermon.

Therefore, we’re not just looking to preachers to have sermons. We’re looking to students to give sermons. So, we know that this was an American practice.

You come into Princeton in 1760; baccalaureate sermons given there. Now, it worked around over the years to where not every student was still giving a baccalaureate sermon. So, you still got sermons going in  baccalaureate.

You can imagine that if the purpose of baccalaureate is spiritual in its nature, if what we have done for centuries and centuries at baccalaureates is a spiritual gathering and meeting, and you suddenly come to the Supreme Court in 1962, 63 saying, “Whoa! You can’t do anything spiritual in public schools,” now you’ve got a conflict. You’ve got, literally, a 600-year-old practice that has now come in conflict with what the court reinterprets the Constitution to be.

So, what are you going to do? And, that’s where all the cases started hitting because the court, as it often does, doesn’t think very far ahead when it makes rulings like that. Instead, it’s “what we want to do right now.” And, that’s what they did with the marriage issue.

Unintended Consequences

And, who knew all the issues that are going to blow up out of that, that are now in all the conscience cases? It’s even gone into adoption laws and everything else. The court wasn’t thinking about that when it did the Obergefell case.

I mean, that was not its contemplations in the chambers. Same thing here. So, you now have a very secular interpretation of the Constitution that you can’t have religion present in public schools.

Therefore, what are you going to do with the baccalaureate? Well, there were some things that started coming out that said, “Okay, let’s make this a voluntary meeting rather than part of what used to be a traditional part of graduation–baccalaureate, followed by graduation–in two separate meetings.” So, we won’t do that anymore because baccalaureate, being spiritual, we can say, “Baccalaureate is voluntary: if you don’t want to go to baccalaureate, you don’t have to go back to baccalaureate.”

So, what you had was, schools started doing baccalaureates that were voluntary, and kids and parents would come. But then, that got sued, saying, “Wait a minute. This is a religious service being voluntarily held on school grounds; you can’t do that.”

So, they said, “Okay, let’s move baccalaureates to a community building or something not on school grounds.” And, what happened in many communities, especially rural communities, the largest facility, the largest auditorium in that community tends to be the largest church auditorium. And so, you started having all these baccalaureates going in church auditoriums because that’s the biggest facility in the town.

RICK:

That’s where we had mine.

DAVID:

That’s right. Bigger than the school gymnasium. And, then people sued, saying, “Wait a minute; that’s not a good image.

Baccalaureates And Current Courts

“You have public school graduates, or those who are about to be graduates, meeting in a in a sanctuary? You can’t do that.” Well, it was voluntary; but, the image is bad.

So, now they have just whittled away at this to the point where the baccalaureates are now are voluntary. And, generally, the school does not even mention them in many cases because they feel that’s a safer thing to do. What would happen today if those baccalaureates came back into this current court?

Don’t know. Probably get some very different rulings, but nobody is challenging. I don’t know of a single challenge out there to any kind of baccalaureate going on across the nation.

People have just kind of gotten into the mold the last 20 to 25 years of “Well we’ll do one if we want to, if it’s voluntary, and the kids want to come. Maybe it’ll be at the community center or a gymnasium somewhere. It won’t be on school grounds; and, we probably won’t mention it if it’s in a church.”

But, the original origin, the original purpose, for baccalaureates were for the students to deliver sermons. So, it definitely had a spiritual intent to baccalaureates, preparing you for graduation.

RICK:

And, probably a very good impact on the community itself as well, because they’re getting to hear these great messages. And, what better way to prepare those students, as you send them out into the world, than to be able to live out those positive values, those good values, that they had been taught? So, I’d say it is a good thing that I wish we still used like we used to.

Send In Your Questions

We’re going take a quick break. We’ve got several more questions coming from folks at home. And, all of our listeners out there, if you’d like to have a question like this answered, just send it into us at [email protected]. Every Thursday we have what we call “Foundations of Freedom Thursday.”

And, it’s a chance for your questions to drive our conversation. So, send those in. Quick break, we’ll be right back on WallBuilders Live!

Abraham Lincoln said, “We the people are the rightful masters of both Congress and the courts. Not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.”

Constitution Alive

Have you ever wanted to learn more about the United States Constitution but just felt like, man, the classes are boring or it’s just that old language from 200 years ago or I don’t know where to start? People want to know. But, it gets frustrating because you don’t know where to look for truth about the Constitution either.

Well, we’ve got a special program for you available now called Constitution Alive with David Barton and Rick Green. It’s actually a teaching done on the Constitution at Independence Hall in the very room where the Constitution was framed. We take you both to Philadelphia, the Cradle of Liberty and Independence Hall and to the WallBuilders’ library where David Barton brings the history to life to teach the original intent of our Founding Fathers.

We call it the QuickStart guide to the Constitution because in just a few hours through these videos you will learn the Citizen’s Guide to America’s Constitution.  You’ll learn what you need to do to help save our Constitutional Republic. It’s fun! It’s entertaining! And, it’s going to inspire you to do your part to preserve freedom for future generations. It’s called Constitution Alive with David Barton and Rick Green. You can find out more information on our website now at WallBuilders.com.

Be At All Times Armed

Thomas Jefferson said, “The constitutions of most of our states, and of the United States, assert that all power is inherent in the people that they may exercise it by themselves that it is their right and duty to be at all times armed. That they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of press.”

RICK:

We’re back here on WallBuilders Live! It’s Foundations of Freedom Thursday today. And, our next question comes from David in Merritt Island, Florida

He said, “I enjoyed seeing you guys at the Florida Parent Educators Conference. Thank you so much for what you do. My question is about executive privilege.

“What is it? Where does it come from? And, what was it intended for?”

David, Tim?

DAVID:

The first thing I’ve got to say, Rick, he mentioned that he enjoyed seeing “us,” plural. It’s not often that you and I end up at the same conference, or you and me and Tim, or anybody else, because we all have different speaking schedules. It was pretty cool to be there in Florida where we kind of ended up, without planning on it, to be speakers at that massive event. Was it 16,000 OR 17,000 folks they’ve got there in the homeschool association?

RICK:

It was huge. They didn’t have a chance, though. If they were trying to avoid you, they would go down another hall and hit me.

DAVID:

That’s right.

RICk

So, we had them coming and going, Man.

Executive Privilege

DAVID:

Yes. Now, executive privilege–there’s a lot going on now because Trump is exerting executive privilege. And, they want to talk to Don McGahn; the House is on an inquiry to find out about the collusion and obstruction of justice. So, they’re demanding all sorts of stuff.

And, you know, we’ve seen this pretty much in recent years, seem to be a “gotcha” kind of a situation where they’re saying, “We don’t like what’s going on with the president. We want more information from him and are going to nail him when we get it.”

So, generally, in recent years you would say that most inquiries the president has invoked executive privilege, have not been fact finding as much as they have been to help our agenda move along. You’ve heard more of executive privilege in recent years probably than previous years, just by the nature of the polarized kind of politics we have. I mean, you’ve had all sorts of presidents, maybe most presidents, have invoked this is at some time.

As a matter of fact, let’s go back to George Washington, who invoked executive privilege back in his administration several times. And, it’s like Really? Then maybe it is constitutional, because I think the guy who presided over the convention that wrote the Constitution might recognize it. And, he’s one of the best we’ve ever had at upholding constitutional principles.

He said openly, “I’m guided by the principles of the Constitution,” concerning all he did. So, maybe there’s some basis to this. And, when you look back into it, there really was some basis for what they did.

Looking Back to 1792 and 1796

For example, if you look back in 1792, you had a military expedition under Arthur St. Clair that was a pretty serious failure. And so, there was all sorts of demands for executive documents to see where this all screwed up and went wrong and see what the problem was. They wanted to hang somebody out to dry.

But, Washington said, “No, we had a lot of discussions on that in private, because there was a lot of possibilities of where things could have gone. And, all of those discussions– we didn’t do all the stuff we talked about; we just had that open discussion. Now, if we make all that public, then advisers are going to be reticent to tell what they think might happen or what could happen, if they know that everything they said in private discussions–they’re going to withhold hypotheticals.”

And, sometimes you need hypotheticals or potentialities to say, “Oh, I hadn’t thought about that. Yep, if we do that, that might happen. Good point; let’s not do that.”

So, President Washington at that point said, “No, we’ve got to have the freedom to discuss things privately and to arrive at some conclusions.” And so, he successfully invoked executive privilege.

The same thing happened in the 1796, with what was called the “Jay Treaty.”

RICK:

David, I’ve got to stop you, man, because I didn’t know that at all. And, every time I’ve– people tend to think when they hear “executive privilege,” That probably goes back to Nixon that’s probably when it all started, 50 years ago now. So, all the way back to the first president, you’re saying that he was invoking executive privilege.

This a legitimate function of the president.

The Jay Treaty

DAVID:

It is a legit function. And, in 1796, when the Jay Treaty came out, it was very unpopular among one political party. But, in 1796, you had the federalist and anti-federalist that fairly well defined themselves as two political parties.

And, the Jay Treaty was very unpopular with one faction. So, the House of Representatives demanded documents from President Washington that related to the Jay Treaty. They wanted to see what was going on with it, what was behind it, why would they do such a terrible treaty.

And so, the president said “no” to that inquiry. Now, just think for a minute, constitutionally. On what constitutional basis would he tell the House to walk away and leave it alone

RICK:

I guess it’s executive privilege or, “This is my jurisdiction. This is my constitutional area and not yours.”

DAVID:

Well, interestingly enough, it was the Jay Treaty. Does the House have anything to do with treaties?

RICK:

Ah! Good point. Yes, okay.

So, at that time, did they not have to give some sort of Senate approval?

DAVID:

Yes, Senate approval. So, he provided the documents to the Senate. He refused to answer the questions of the House because they have no jurisdiction over treaties.

RICK:

Oh, yeah.

DAVID:

So, he used executive privilege to say, “Hey, House, you can’t go on a fishing expedition here. You’ve got no authority in this thing anyway. Constitutionally, treaties belong to the president and to the Senate.

“I’ll give the Senate the documents; but, I’m not giving you the documents.” Now, that’s a really interesting constitutional application. I mean, that was very good.

Thomas Jefferson and Aaron Burr

Then, you had the case that came up with Thomas Jefferson. With Thomas Jefferson, Aaron Burr was in court being accused of treason. And, Aaron Burr claimed that Thomas Jefferson had a letter that would exonerate him.

So, they demanded that letter from President Jefferson. But, President Jefferson said, “No, executive privilege: You can’t demand what you want from me.” And so, Chief Justice John Marshall told Thomas Jefferson, “You have to give up the letter.”

And, interesting, we know how that John Marshall earlier had told Jefferson to do certain things, and Jefferson regularly told him to take a flying leap, “You’re the Supreme Court. You don’t tell the president what to do.”

TIM:

And, by “flying leap,” we mean “NO.”

DAVID:’

{Laughter} That’s an old idiom for us white-haired folks; sorry about that. So, Jefferson said, “No, I’m not doing that.” He called it “a perversion of the law” for the Supreme Court to demand the executive do anything.

And, in this case, there was a good reasoning made by Chief Justice Marshall. He didn’t have that in Marbury Madison; but, he had it here. He said, “Look; the Sixth Amendment gives the right for the defendant in a criminal trial, civil trial, to compel witnesses in his behalf.

“That is a constitutional provision. And, if this is an exonerating piece of information, he has the right to compel that it be produced.” So, Thomas Jefferson produced it.

But, he said, “I’m going to do this voluntarily, not because you told me to. I agree that there should be compulsory service, that is constitutional; but, not because the court told me to, but because that’s the way I read the Constitution as well.” So, Jefferson invoked executive privilege and then voluntarily gave up what was needed for that trial.

History and the Courts

So, whether you want to take that one, or the Nixon trial and tapes, or whether you want to go to the Paula Jones stuff with President Clinton, or to all the demands that were made under George W. Bush, the court has a mixed bag. They say, “Okay, if there’s a compelling interest like any criminal prosecution, generally the courts, the presidents have complied.”

If it’s a fishing expedition, or if it’s a public humiliation they want, generally the courts uphold the president’s right to executive privilege. But, this is something that goes a long way back.

RICK:

Well, and any predictions, David, on where you think it’ll go with some of some of the requests for president Trump?

President Trump’s PR Issue

DAVID:

Well, President Trump does not have to comply with any request, regardless of what a court might say–and that’s constitutionally. But, if he does not comply, then he’s got a PR issue. But, does he have a bigger PR issue than what he’s got right now?

I mean, my gosh.

RICK:

But, do we think this is a president that’s willing to say “no” to anybody? I mean, does he have a backbone to do that.

{laughter}

DAVID:

I don’t know. He’s been so compliant all along.

RICK:

You’re right.

DAVID:

He’s done everything the media has wanted.

RICK:

Yeah.

DAVID:

I don’t know if he’ll say “no” on this. So, just take the nature of how this presidency has gone. They’ve been on fishing expeditions forever.

And, anything they think can besmirch him, they’re demanding stuff on. So, if I were in his place, I would doubt would exert executive privilege for several reasons. One is, some of the inquiries you’ve got going, you have no basis for.

It’s not a constitutional authority to have a fishing expedition; therefore, I’m not going to do it for that basis. Number two: Where’s the criminal stuff that we’re talking about that this is exonerating criminal stuff? That’s not what’s happening.

The Intent of the Inquiry

And so, as you look at all the precedents that are out there, I think he’s got a good case for saying “no” on the things they’re asking right now. Now, he’s complied with other things. And there were, by the way, times when the House issued subpoenas to President Clinton, and he invoked executive privilege then negotiated the terms on which he would appear.

And so, some of that’s been done where the president and the bodies get together and say, “Okay, we’re after justice here. Let’s see how we do this.” And, that’s been done already with President Trump, whether he negotiated what he would give and what he wouldn’t give, and that’s fine.

But, it all goes back to the intent of the inquiry. If it’s to embarrass, humiliate, or make political ground for a party, the courts tend to side with the president on it. And, if it’s actually needed to exonerate someone or potentially exonerate someone, like it was with Aaron Burr or like it was with some defendants with Nixon, then generally, the courts say, “No, the Sixth Amendment wins this one.”

RICK:

I’m not even wondering if he’ll have the guts to say “no,” but am just wondering how fun it’s going to be to read the tweets when he says “no.”

The LGTBQ Agenda

Final question of the day for David and Tim comes from Marianne. She says, “Proposition 8 several years ago, the public voted for marriage between a man and a woman. Then came LGTBQ-R-S -T-U-V and the whole-list agenda. Does that LGTBQ agenda supersede the people’s choice; and, if so, why?”

TIM:

Let me jump in on this one, guys, because that is certainly the direction we are seeing things go. It should not supersede anything of the people’s choice, because it doesn’t violate the Constitution. It doesn’t violate the Declaration of Independence.

But, you have unelected judges, in many cases appointed judges, Supreme Court in some situations, that are coming and saying, “Well, here’s what we think it should be; therefore, we’re going to apply this to everybody else in the whole nation.” And, there’s not the accountability for the judicial system, which is why this is being allowed to stand. And, this is where  we’ve talked about how there’s, in the Constitution, there’s more talk for impeachment of judges, really, than anything else for how to control and handle bad leaders.

Impeaching Judges

Well, you impeach judges; that’s how you get rid of them. And, we just don’t hold judges accountable. So, you get judges with agendas, and they go a direction that really is not the direction that people want to go, is not upholding the Constitution or even the notion of inalienable rights from the Declaration.

And so, certainly, this is not the way it should be. But, it’s going to take us getting the right kind of leaders who understand that we can hold judges accountable and getting the right kind of judges in place, before we can see this start to turn back a different direction.

DAVID:

And, actually getting the right kind of people in place that know the Constitution, who can then hold their leaders accountable to get the right kind of judges. So, a lot of it goes back to us knowing that this is wrong, is not constitutionally right, and is not what judges are supposed to do. Then, we demand better.

RICK:

Well, and as David said, it begins with We the People knowing these things. Then, we’ll make better decisions, in terms of who we elect.

As our listeners, you can be part of not only yourself getting educated on these constitutional principles, but also helping bring people in your community to this information, helping make sure that they are equipped as well. We encourage you to become one of our Constitution hosts or our coaches. You can go to ConstitutionCoach.com today.

Discover About Executive Privilege and More!

And, right there on that website, sign up to host a Constitution class in your community. You can do that if you’re in your home, at your church, wherever. Just get people together.

And, you don’t have to have any level of expertise, you’ve just going to be able to hit “play” on the DVD player or on the computer. Then, you’ll be able to use the video series that David and I recorded, both at Independence Hall. So, we’re in the room where the Constitution was framed and also in the WallBuilder’s library.

We bring those founding documents to life; and, you can be the one to bring it to your community. So, we really encourage you to consider doing that and be a Constitution coach in your community. Check that out a ConstitutionCoach.com today.

We really appreciate you listening today. WallBuilders Live! is a listener supported program. So, if you have a chance to go by the website WallBuildersLive.com, click on that donate button and make that contribution today. We would greatly appreciate it.

It’s what makes it possible for us to bring this information, training, skills, and this knowledge to people all across the country to equip and inspire them to help save our Constitutional Republic. So, be sure and visit WallBuildersLive.com today and make that donation. We sure appreciate you.

Thanks for listening today to WallBuilders Live!

Liberties and Freedom Are Worth Defending

Samuel Adams said, “The liberties of our Country and the freedom of our civil Constitution are worth defending against hazards. And, it is our duty to defend them against all attacks.”