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.
Jonathan Shaub is currently the Tennessee Assistant Solicitor General. 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. He also spent time as an associate with the Supreme Court & Appellate Group at Hogan Lovells and clerked for Judge Paul V. Niemeyer on the Fourth Circuit Court of Appeals. Shaub graduated magna cum laude from Northwestern Pritzker School of Law and received his undergraduate degree from Vanderbilt University. This post represents the opinions of the author alone and not necessarily those of the Office of the Tennessee Attorney General and Reporter.
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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.
As widely reported, President Trump has formally asserted executive privilege in response to the House judiciary committee’s plan to hold Attorney General William Barr in
The release of the redacted Mueller report focused the spotlight squarely on former White House Counsel Don McGahn, whose testimony to the special counsel featured prominently in the report’s discussion of obstruction of justice. Indeed, the first questions to Attorney General William Barr from Sen.
President Trump proclaimed recently that his administration would be “fighting all the subpoenas.” And the headlines are filled with the proliferating disputes between the Democratic-controlled House and the administration.