Jonathan Shaub is a contributing editor to Lawfare and an assistant professor of Law at the University of Kentucky J. David Rosenberg College of Law. He formerly served in the U.S. Department of Justice as an attorney-adviser in the Office of Legal Counsel and as a Bristow Fellow in the Solicitor General's Office.
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Senators should not concede that former President Trump has the authority to assert executive privilege and direct the withholding of evidence based on his appraisal of the public interest. And it should especially not do so in the context of impeachment.
The majority fails to consider the relevant history of congressional oversight of the executive branch.
The argument that the Senate should decline to seek specific evidence relevant to impeachment in order to protect the presidency’s generalized institutional interests badly distorts executive privilege.
Senators are debating whether witnesses will appear at the impeachment trial. But if the Senate does vote to hear from witnesses, could executive privilege be utilized to block their testimony?
Legislators largely allowed the executive branch to take refuge in broad prophylactic doctrines that eliminated any need to consider Congress’s interests.
Any discussion of the obstruction charge against President Trump should take into account the historical constitutional disputes between Congress and the executive branch.
What is “executive privilege”? In the specific context of information disputes between the executive branch and Congress, the Supreme Court has never addressed—let alone answered—that question.