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?
Jonathan Shaub is a contributing editor to Lawfare and currently Assistant Solicitor General for the State of Tennessee. He will be joining the faculty of the University of Kentucky J. David Rosenberg College of Law as an Assistant Professor in the fall of 2020. 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. This post represents the opinions of the author alone and not necessarily those of the Office of the Tennessee Attorney General.
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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.
On Aug. 7, the House Judiciary Committee filed a lawsuit asking a federal court in D.C. to force Don McGahn, former White House counsel, to comply with the committee’s subpoena for his testimony.
Two seminal events have occurred in recent days in the ongoing oversight war between the House of Representatives and the Trump administration—and in the ongoing expansion of the doctrine of executive privilege. Although each incident warrants further individual analysis, together they suggest the “constitutionalization” of what I will call a “prophylactic executive privilege,” a view that the executive branch has absolute constitutional authority to protect and further the president’s qualified constitutional authority to assert executive privilege.
It is unclear what authority the president has to direct former White House counsel Don McGahn, now a private citizen, to go along with the executive branch’s legal position in refusing to comply with a congressional subpoena.