The hidden significance of the litigation over Don McGahn’s testimony derives from the implicit question of whether the president has the authority to order a private individual not to comply with the committee’s subpoena.
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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The Trump administration is asserting a new and extreme theory of executive privilege, under which the executive branch has absolute constitutional authority to protect and further the president’s constitutional authority to assert that 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.
The president has asserted executive privilege over the Mueller report and the underlying documents in order to be able to determine whether to assert executive privilege.
The issue of whether former White House Counsel Don McGahn’ will testify before Congress raises questions about executive privilege and the compelled congressional testimony of senior presidential advisers that the courts have only seldom, if ever, addressed.
The current battles over subpoenas arise out of the fundamentally different views held by the executive branch and Congress about their respective constitutional authorities in the context of congressional oversight.
Muthana and Begum left their home countries to join the Islamic State and now are seeking to return—but neither the U.S. nor the U.K. will allow them back.