With the new Democratic majority in the House of Representatives sporting an aggressive oversight agenda on national security and foreign policy issues, it’s only a matter of time before a raft of congressional subpoenas are fired off from Capitol Hill. Also only a matter of time is resistance to those subpoenas based on the assertion of executive privilege by the Trump administration. The Washington Post reports that the new White House counsel, Pat Cipollone, has hired 17 lawyers specifically for the purpose of strongly asserting the president’s executive privilege in responding to investigators for the House of Representatives.
So it’s worth reviewing how congressional subpoenas work and what, exactly, executive privilege is. How might things play out when a House committee issues a subpoena and, in response, the Trump administration refuses to turn over documents or allow an administration official to testify?
The following is an overview of congressional requests for executive branch information and executive privilege assertions in response; it does not cover, for example, requests by Special Counsel Robert Mueller, the law and dynamics of which are quite different. Lawfare has published a number of articles that address the issue of executive privilege generally. In June of 2017, John Bies offered a primer on the subject. David Kris has written about disclosures to Congress in the context of the special counsel investigation. My colleague Susan Hennessey discussed the nature of congressional investigative authority as well as investigative tools and their enforcement. In addition, the National Constitution Center offers a concise history of presidents’ use of executive privilege. Finally, Mark Rozell’s book entitled, “Executive Privilege” offers a deep dive that is nonetheless easy to read.
If history is any guide, the question of what executive branch documents and testimony the 116th Congress will receive access to will likely not be decided by a court. Disputes between Congress and the president over the scope of executive privilege are better understood as political battles with legal underpinnings—not as matters of pure law. As such, debates over the scope of executive privilege are likely to play out in the context of negotiations between House Democrats and the Trump administration, with each side making political calculations about what fights are worth having, when it makes sense to fight and when it makes sense to cooperate.
In the long run, that’s probably a good thing—shifting resolution of interbranch privilege disputes to the courts undermines Congress’s ability to maintain its place as a coequal branch in the constitutional scheme. In the short term, however, the reality is that those eager for House Democrats to obtain information relevant to their oversight efforts in an orderly, timely and clear-cut way are likely to feel some frustration over the next two years. The White House holds a lot of cards in this game.
The power of Congress to investigate and obtain information is very broad. While there is no express provision in the Constitution that addresses the investigative power, the Supreme Court has firmly established that such power is essential to the legislative function as to be implied from the general vesting of legislative powers in Congress.
How a particular committee decides to issue a subpoena is specific to each committee. Most committees of the House and Senate have included in their rules one or more provisions on committees’ and subcommittees’ power to authorize subpoenas by majority vote. Most House committee rules delegate to the committee chair the power to authorize subpoenas, and many of these rules require the chair to consult or notify the committee’s ranking minority member. Once authorized, a subpoena must be signed and delivered to the person named in it. Delivery of the subpoena to the person named in it means the person has been officially “served.”
The courts have long reaffirmed Congress’s constitutional authority to issue and enforce subpoenas. As the Congressional Research Service explained in 2017:
Congress has three formal methods by which it can combat non-compliance with a duly issued subpoena. Each of these methods invokes the authority of a separate branch of government. First, the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands. Second, the criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor. Finally, Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.
Either house of Congress can vote to hold in contempt a witness who refuses to provide testimony or produce requested documents pursuant to a congressionally authorized subpoena. As set out in 2 U.S.C. § 194, the U.S. attorney for the District of Columbia has the “duty  to bring the matter before the grand jury for its action.” Contempt of Congress, which is a federal misdemeanor, is punishable by a maximum $100,000 fine and a maximum one-year sentence in federal prison. But if the executive branch is not inclined to prosecute a contemnor (the contemnor is a person or entity who is guilty of contempt before a judicial or legislative body), Congress will have a difficult time implementing such a penalty. Congress can also file a lawsuit asking a judge to order the witness to provide the information, raising the additional possibility of imprisonment for contempt of court.
A valid assertion of executive privilege provides a lawful basis to decline to answer a congressional subpoena for testimony or documents. At its most basic, executive privilege is the proposition that certain confidential or sensitive communications within the executive branch are constitutionally protected from compelled disclosure to the executive’s coequal branches—Congress and the courts. There is no mention of executive privilege in the United States Constitution—rather, it is a principle implied in the Constitution’s separation of powers. Bies identifies the five general types of executive privilege that the executive branch has claimed in the past: presidential communications, deliberative process, attorney-client communications, law enforcement investigations, and sensitive military, diplomatic and national security information. But the precise contours of any executive privilege are contested, and the executive branch, the courts and Congress tend to take divergent positions that favor their respective constitutional roles.
Civil Enforcement Actions
In the landmark case of United States v. Nixon, the Supreme Court ruled that it had authority to resolve the conflict between President Richard Nixon and Special Prosecutor Archibald Cox, who had been appointed to investigate the Watergate affair, over the issue of executive privilege. Cox had obtained a grand jury subpoena requiring Nixon to deliver to the district court tape recordings of various meetings with assistants. The Supreme Court acknowledged, for the first time, that an executive privilege exists under the Constitution, but it qualified the scope of the privilege by subjecting it to a balancing of the competing interests and legitimate needs of the executive and judicial branches. Courts have applied this general approach in the context of enforcement of congressional subpoenas as well, but there haven’t been very many such decisions—and the ones that do exist are narrowly drawn to the particular facts of the cases at hand. In addition, as articulated in United States v. AT&T, courts will only decide such a case if the executive and legislative branches have tried, in good faith, but failed to reach an accommodation.
So while it is settled that the federal courts have jurisdiction to resolve a conflict over a claim of executive privilege in the context of enforcement of a congressional subpoena, there isn’t much actual case law to suggest exactly how assertions of executive privilege by the president may ultimately be decided by a court. In addition, the good-faith accommodation requirement typically has the effect of lengthening the amount of time it takes for a civil enforcement action by Congress to vindicate its subpoena power, and in many instances may obviate the practical usefulness of a court decision in a given controversy.
The most recent example is President Obama’s assertion of executive privilege in the context of “Operation Fast and Furious”—a federal gun-running investigation and operation gone wrong. On March 31, 2011, the House Committee on Oversight and Government Reform, then chaired by Republican Rep. Darrell Issa, issued a subpoena to the Department of Justice’s Bureau of Alcohol, Tobacco, and Firearms. The Justice Department responded in writing to the committee a few months later. After more back-and-forth, on Oct. 12, the committee issued a second subpoena to the department for communications from several top officials, including Attorney General Eric Holder, relating to the operation. The subpoena covered communications from Holder’s chief of staff and the head of the department’s criminal division. It also requested information regarding relevant departmental communications with the White House and details about the death of a U.S. Border Patrol agent that spurred investigation of the operation.
In June of 2012, Obama invoked executive privilege to deny the committee access to certain documents responsive to the subpoena on the basis that complying “would raise substantial separation of powers concerns and potentially create an imbalance in the relationship” between Congress and the White House. The House voted on June 28, 2012, to hold Holder in contempt—the first such action against a sitting Cabinet official. The committee then brought a complaint in the U.S. District Court for the District of Columbia to force disclosure of the documents at issue. The court case was repeatedly delayed by procedural issues and unsuccessful efforts to broker a settlement.
It wasn’t until January of 2016—a full three and a half years later—that a federal judge rejected Obama's assertion of executive privilege to deny Congress access to the records on the grounds that “under the unique and limited circumstances of this case, ... the qualified privilege must yield, given the executive’s acknowledgment of the legitimacy of the investigation, and the fact that the Department itself has already publicly revealed the sum and substance of the very material it is now seeking to withhold.” The court also found that “records reflecting the agency’s internal deliberations over how to respond to Congressional and media inquiries fall under the protection of the deliberative process privilege.” Finally, the court “encourage[d] the parties to start with a fresh slate and resolve the few remaining issues with flexibility and respect.”
By then, a new Congress had convened and access to the documents was, for most practical purposes, moot. On Tuesday’s episode of the Lawfare Podcast, my Brookings colleague Molly Reynolds spoke to former House general counsel Stan Brand about the contours and complexities of civil enforcement of congressional subpoenas against resistant executive branch officers and agencies.
Legislative Attempts to “Strengthen” the Subpoena Power
There have been several attempts to try to speed up court consideration of the subpoena enforcement power. Issa sponsored a bill in 2017 that sought to strengthen congressional subpoena enforcement power by codifying the subpoena enforcement power and process in statute; expediting litigation arising from noncompliance with the subpoena; codifying a court’s power to levy financial penalties against the head of a U.S. government agency who willfully fails to comply with a subpoena; and requiring the production of a privilege log in cases in which a subpoena recipient refuses to comply on the basis of privilege. In late 2017, the bill was reported out of the House judiciary committee unanimously, with a committee report, and passed the House by voice vote. The bill was received in the Senate and referred to the Committee on the Judiciary, where it died. Issa is no longer a member of Congress, and the bill has not been reintroduced in the current Congress.
Opponents of the Issa bill argued that shifting resolution of inter-branch privilege disputes to the courts undermines Congress’s ability to maintain its place as a coequal branch in the constitutional scheme. Putting aside that broader theoretical argument, the practical reality is that, for the next two years, the question of what documents and testimony this Congress will get access to will be determined by a political push-and-pull between the executive and legislative branches. Whatever promise litigation may hold for House committees, the lag time is simply too great to be a useful cudgel that many people imagine. Instead, committees will likely rely on legislative and appropriations retaliation when they don’t get what they asked for.
What is the Trump Administration’s Policy on Executive privilege?
The Trump White House has not issued a formal policy document laying out the administration’s approach to questions of executive privilege. Past practice on this issue is mixed, with some presidents issuing guidance and others declining to do so.
One recent document addressing executive privilege is a letter from Trump’s personal lawyers, John Dowd and Jay Sekulow, to Special Counsel Robert Mueller in the context of the ongoing investigation into Russian election interference. Citing various court cases, the letter states, in part:
[Y]our office has received unprecedented access and voluntary cooperation in the collection of all documents requested from the White House, the Donald J. Trump For President, Inc. (the “Campaign”), and individual witnesses, and that our offices have developed a collegial and professional working relationship which encourages honesty and candor. Further, we all agree that your office and the Congressional Committees have received the full cooperation and testimony of both present and former White House staff members, including White House Counsel, as well as the President’s most senior advisers and his most senior Campaign employees. The majority of that information could have been rightfully withheld on multiple privilege grounds, including but not limited to the presidential communications privilege.
We cannot emphasize enough that regardless of the fact that the executive privilege clearly applies to his senior staff, in the interest of complete transparency, the President has allowed — in fact, has directed — the voluntary production of clearly protected documents. This is because the President’s desire for transparency exceeded the policy purposes for the privilege under the circumstances. Without question, the privilege “attaches not only to direct communications with the President, but also to discussions between his senior advisors, who must be able to hold confidential meetings to discuss advice they secretly will render to the President.” The privilege applies and is available for the President to claim here because “restricting the presidential communications privilege to communications that directly involve the President will impede the President’s ability to perform his constitutional duty.” (Emphasis in original).
The memo quotes at length the D.C. Circuit’s decision in a 1993 case, Association of Am. Physicians & Surgeons v. Clinton:
[C]ommunications made by presidential advisers in the course of preparing advice for the President come under the presidential communications privilege, even when these communications are not made directly to the President. Given the need to provide sufficient elbow room for advisers to obtain information from all knowledgeable sources, the privilege must apply both to communications which these advisers solicited and received from others as well as those they authored themselves. The privilege must also extend to communications authored or received in response to a solicitation by members of a presidential adviser’s staff, since in many instances advisers must rely on their staff to investigate an issue and formulate the advice to be given to the President.
The letter goes on to assert that:
The privilege applies to communications authored or solicited and received by members of an immediate White House adviser’s staff who are responsible for advising the President.
In an effort to provide complete transparency, the President waived the obviously applicable privileges where appropriate in order to allow both the Congress and the Special Counsel to see all relevant documents.
Not surprisingly, the letter couches the broad approach to executive privilege in terms of the interests of the office of the presidency rather than Trump himself:
More is at stake here than just this inquiry, more even than just the Presidency of Donald J. Trump. This inquiry, and the precedents set herein, will also impact the Office of the President of the United States of America in perpetuity. Ensuring that the Office remains sacred and above the fray of shifting political winds and gamesmanship is of critical importance. Of course, the President of the United States is not above the law, but just as obvious and equally as true is the fact that the President should not be subjected to strained readings and forced applications of clearly irrelevant statutes.
What does this letter say about what the administration’s general approach to subpoenas from House committee chairs will be? Perhaps not much. It shows the president’s personal lawyers taking a broad view of the breadth of executive privilege, preserving their ability to argue executive privilege in a different scenario, and seeking to emphasize that they have engaged in a good-faith accommodation of the special counsel’s and Congress’s need for information by waiving the privilege. None of that is particularly surprising in a situation in which lawyers are defending the president personally. It does make clear that the president is comfortable taking a broad and aggressive view of executive privilege—so broad and aggressive that he is comfortable using it as a weapon to preemptively fend off a subpoena, rather than as a defense of last resort in response to a request. But it does not say anything about whether there is or will be guidance that would apply more generally to the executive branch, whether there is a process within the executive branch for invoking the privilege, or in what other types of circumstances the president may invoke or waive the privilege.
Nonetheless, it is noteworthy that literally thousands of documents were, in fact, turned over to Mueller and the committees—even though apparently many of them were considered by Trump’s lawyers to be subject to executive privilege.
Other Examples of the Trump Administration’s Approach to Executive Privilege
History shows that a president’s issuance of written policy guidance to the executive branch on how to handle assertions of executive privilege does not tell the whole story about whether or under what circumstances an administration actually invokes the privilege with respect to a Congressional inquiry—or how things play out between Congress and the executive after the privilege is invoked. So besides the letter above, what actions has the Trump administration taken so far on the issue of executive privilege that might alter how the tug-of-war between Congress and the president plays out over the next two years? There are a few factors to consider here.
First, there was the extraordinary back-and-forth between the Department of Justice and the House Permanent Select Committee on Intelligence throughout 2017 and into 2018, partially chronicled on Lawfare, regarding documents related to the origin and ongoing conduct of the investigation into whether the Trump campaign coordinated with Russia to influence the 2016 election.
In early 2017, the House intelligence committee, then chaired by Rep. Devin Nunes, released two redacted staff memoranda—one written by Republicans (the release of which was supported by President Trump) and one written by Democrats—about the ongoing Russia investigation. As Sarah Levine and Simone Brewer point out, the effort to publish the memos created the potential for a constitutional conflict between the president and Congress over who has authority to release information classified by the executive branch. Both the Senate and the House have established procedures for unilaterally publishing classified information, a matter my colleague Molly Reynolds addressed in detail on Lawfare last year. House rules do not explicitly cite a constitutional basis for the exercise of this power. The question of whether the House actually has the constitutional power to disclose classified information pertaining to national security is an unsettled question.
In April of 2018, Nunes threatened to hold FBI Director Christopher Wray and Deputy Attorney General Rod Rosenstein in contempt and start impeachment proceedings because for more than seven months, Wray and Rosenstein had failed to fulfill Nunes’s request for an unredacted copy of a two-page memo the FBI used to initiate its investigation of the Trump campaign’s Russia contacts. In an April 6 letter responding to Nunes’s demand for the unredacted memo, the assistant attorney general for legislative affairs justified the delay by citing “relevant legal precedents, the Department’s significant law enforcement and national security responsibilities, and Executive Branch confidentiality interests.” None of the responses from the Justice Department ever explicitly asserted executive privilege. When Nunes continued to request documents about the Russia investigation through the spring and summer of 2018, Deputy Attorney General Rosenstein stated publicly that, “[i]f we were to just open our doors to allow Congress to come and rummage through the files, that would be a serious infringement on the separation of powers.”
The unredacted memo was eventually made available to the committee, and in July 2018, roughly 30 lawmakers from the House and Senate were able to view the classified Foreign Intelligence Surveillance Act (FISA) documents Nunes had subpoenaed. That month, Justice Department officials indicated they had given lawmakers access to 880,000 pages of documents in connection with House committee probes. The Hill reported that “[o]ne DOJ official said while the requests are historically high, they are working to respond to the lawmakers' records requests, adding that much of it is done quietly.”
These events underscore the unique circumstances of this exchange between the executive and legislative branches, in which the requests by Nunes were widely perceived to be supported by the president—even as they were opposed by the Justice Department. Indeed, there were widespread concerns that Nunes would share the information with Trump’s personal lawyers—the attorneys for the person whose conduct was being investigated.
The circumstances of this dispute between the House intelligence committee and the Justice Department were shocking to those who have dealt with the question of whether to release publicly sensitive law enforcement information—traditionally the department has held such information very tightly. From a separation of powers perspective, though, it’s fair to say that the issue was generally resolved through a cooperative accommodation process between the executive and legislative branches. Going forward, one can easily imagine situations in which neither Trump nor House Democrats feel particularly accommodating toward one another in connection with a proposal by House Democrats to make classified information public.
In June 2018, the House passed a non-binding resolution on a party-line vote calling on the Justice Department to comply with House subpoenas and other document requests. It will be interesting to see how House Democrats talk about that resolution if House Republicans oppose Democrats’ subpoenas to the executive branch or support the president’s assertion of executive privilege. It will also be interesting to see whether and how the administration seeks to justify not turning over similar kinds of documents to House Democrats over the next two years.
Second, Trump administration officials asserted during congressional testimony a kind of soft executive privilege—without calling it that—with respect to communications with the president.
In June 2017 testimony before the Senate intelligence committee, Director of National Intelligence Dan Coats and NSA Director Mike Rogers refused to talk about a report in the Washington Post that Trump asked them to interfere in the FBI’s probe (before Mueller was appointed) examining Russia’s interference in the 2016 presidential election. Coats said “I don’t believe it’s appropriate for me to address that in a public session. . . . I don’t think this is the appropriate venue to do this in.” Rogers said “I’m not going to discuss the specifics of any conversations with the President of the United States”—language that clearly echoes a claim of executive privilege based on presidential communication. The pair could not agree on a rationale, though. Rogers indicated that the conversations were classified, but he could not offer any specifics about what was classified about the conversation.
Attorney General Jeff Sessions followed suit a few weeks later in congressional testimony before the Senate intelligence committee, saying “[i]t would be inappropriate for me to answer and reveal private conversations with the president when he has not had a full opportunity to review the questions and to make a decision on whether or not to approve such an answer.” Sessions insisted he was obeying long-established Justice Department guidelines, but when asked if such guidelines were written down, Sessions offered, “I think so.” He made a similar refusal in October 2018 before the Senate judiciary committee, even though Democrats had sent him a letter the week before his testimony arguing that he would not have a legal basis to continue to refuse to answer unless the president invoked executive privilege. Sessions instead occupied a twilight space, saying “[c]onsistent with a longstanding policy and practice of the executive branch, I can neither assert executive privilege, nor can I disclose today the content of my confidential conversations with the president.”
Then-nominee for Secretary of State Mike Pompeo, appearing before the Senate Foreign Relations committee for his confirmation hearing in April of 2018, was also asked about the report that Trump had conversations with him and Coats about then-FBI Director James Comey’s handling of the Russia election meddling investigation. He did not answer the question, but he explicitly said he was not invoking executive privilege.
None of the Republican committee chairs pressed the issue. This type of exchange shows that the outcome of a push-and-pull between the branches over executive privilege on a particular issue need not be based on principle. Rather, it is largely dependant on a political calculation of what the political traffic will bear on a particular issue. Going forward, in the same kind of circumstances, House Democratic chairs may not be as willing to accept this same kind of response—which may be one reason that Cabinet members are already declining to testify before House committees.
Third, in September of 2018, the White House, citing executive privilege, withheld from the Senate more than 100,000 pages of records from then-Judge Brett M. Kavanaugh’s time as a lawyer in the administration of President George W. Bush. The precedents in this situation are somewhat mixed. On the one hand, President Reagan waived his claim of executive privilege over memos then-nominee to the Supreme Court William Rehnquist had written as the head of the Nixon administration’s Office of Legal Counsel. Conversely, President George W. Bush refused to release decision memos Miguel Estrada had written while working in the Clinton-era solicitor general’s office.
In the Kavanaugh example, a letter from Bush’s lawyer (who now is counsel to former White House counsel Don McGahn) to the leaders of the judiciary committee stated that the Trump administration was not allowing him to release the records because they “reflect deliberations and candid advice concerning the selection and nomination of judicial candidates, the confidentiality of which is critical to any president’s ability to carry out this core constitutional executive function.” Mark Rozell, a scholar of executive privilege, said in an op-ed that “[t]he administration’s action does not meet any of the reasonable standards for exercising presidential privilege.” Ultimately, a few hours before the nomination hearing began, the Bush lawyer turned over some 42,000 pages of documents. While Democrats in the Senate were not pleased, there was not much they could do. Kavanaugh was confirmed to the Supreme Court in early October on a 50-to-48 vote.
These instances suggest an administration that is (1) comfortable taking a broad view of the scope of executive privilege, (2) not particularly organized or articulate in how executive branch officials talk about it, and (3) willing to engage in a back-and-forth accommodation process, at least with respect to documents, when doing so is in the president’s political interests.
These examples also show a Republican congress willing to engage—or not engage—in requests for information in ways that support those interests. In both the requests for information from Cabinet members about conversations with the president and the request for the Kavanaugh documents, the Republican-controlled Congress did not issue a subpoena or take any other formal action. In the case of the House intelligence committee-versus-Justice Department disagreements over documents related to the investigation of Russian ties to Trump’s campaign, the situation was resolved through a threat of impeachment and subsequent compliance by the Justice Department—in a situation where the president supported release of the Russia investigation documents to his allies on Capitol Hill because he thought doing so would be helpful in making the political case against the legitimacy of Mueller’s investigation. No court cases were filed by congressional committees over the issue of executive privilege, and Republicans were, in the end, reasonably satisfied with the responses they received from the executive branch.
Going forward, what does it all mean?
It is reasonable to expect that Democrats, now in charge of the House, will not be as reticent as Republicans were in pursuing testimony and documents in situations that do not favor Trump’s personal or political interests. When that happens, will the Trump administration be a willing participant in an accommodation process, or will Congress need to look to other weapons in its arsenal to obtain information from the executive branch?
In theory, Congress could look to its other constitutional tools—like delaying confirmation hearings, refusing to move forward on legislation the president needs to achieve his agenda, withholding support for administration programs with the power of the purse, initiating impeachment proceedings, and perhaps even utilizing arcane arrest powers—to vindicate its prerogatives. It remains to be seen which tools will actually work in the current political environment, and it may be the case that there are fewer actual tools at Congress’s disposal than one may imagine. What programs, after all, might the president care so strongly about that he wouldn’t rather see cut than give up information he doesn’t want to surrender? As to legislation, it is not clear that there are any major policy initiatives from the White House that would require legislative action. Confirmations? On Jan. 6, the president actually said he is in “no hurry” to get his Cabinet members confirmed; “I sort of like ‘acting’ [because] it gives me more flexibility; do you understand that? I like ‘acting.’”
Finally, a word about Congress’s arrest powers. The criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor. But Congress will have a practical problem using this mechanism if the president does not agree with the action. Administrations of both political persuasions have decided that U.S. attorneys are not required to refer congressional contempt charges to a grand jury or prosecute an executive branch official who carries out the president’s instruction to invoke the president’s claim of executive privilege before a committee.
That leaves Congress’s inherent contempt power, which means relying on the legislature’s own constitutional authority to detain and jail a contemnor until the individual complies with congressional demands. What does that actually look like? It’s not very pretty—which is why the inherent contempt process has not been used by either body since 1935, when a Herbert Hoover administration official was held briefly in the Willard Hotel. While there is no “Capitol Jail,” the Capitol Police do maintain a holding cell a few blocks away at the Capitol Police Department. At the current moment, the prospect of the House sending the sergeant-at-arms of the Capitol to arrest an administration official would likely not sit well with a public that does not favor physical confrontation in U.S. politics.
Disputes between Congress and the president over the scope of executive privilege are better understood as political battles with legal underpinnings—not as pure legal battles to be decided in court. It remains to be seen how effective Congress’s constitutional tools will be, but it is a pretty safe bet that using these tools effectively will require time, energy and commitment. In short, each side will have to consider what it can reasonably get away with in the current political environment—even as each side uses the processes associated with the interbranch push-and-pull of executive privilege to shape that environment.