Executive Privilege

Latest in Executive Privilege

Executive Privilege

House Notes Contradictory Positions of Trump Impeachment and Litigation Claims

The House submitted new filings to the U.S. Circuit Court for the District of Columbia in both the Mueller grand jury 6(e) material case and the case about the testimony of former White House Counsel Don McGahn. In the filing for the McGahn case, the House noted while Trump's impeachment defense team has "criticized the House for 'not seek[ing] to enforce' and 'subpoenas in court,'" the government has argued in the McGahn case that House Committees cannot ask the court to enforce subpoenas issued to the executive branch. The House makes a similar argument in the 6(e) filing.

Executive Privilege

Federal Judge Dismisses Kupperman Subpoena Suit

A judge in the U.S. District Court for the District of Columbia dismissed a suit from former Deputy National Security Advisor Charles Kupperman seeking guidance on whether to comply with a congressional subpoena for his testimony in the impeachment inquiry. The judge held that intervening events, including the House Permanent Select Committee on Intelligence's withdrawal of its subpoena to Kupperman, have rendered the suit moot. The opinion can be found here and below.


District Judge Denies Stay in McGahn Case

Though the circuit court granted an administrative stay, a judge in the U.S. District Court for the District of Columbia has denied a motion by the Department of Justice to stay a Nov. 25 ruling that held that McGahn does not have absolute testimonial immunity and must comply with a congressional subpoena for his testimony. The denial of the stay can be found here and below.


District Court Judge Rules McGahn Must Comply With Congressional Subpoena

A judge in the United States District Court for the District of Columbia ruled that the President's former White House Counsel Don McGahn must testify before impeachment investigators pursuant to a subpoena issued by the House Judiciary Committee. McGahn served as Trump's White House counsel from inauguration until October 2018. McGahn can appeal the ruling and request a stay pending appeal. The ruling can be found here and below.


Former Deputy National Security Advisor Requests Declaratory Judgment on Testimonial Immunity

Charles Kupperman, the former deputy and acting national security advisor to President Trump, is seeking declaratory judgment from the U.S. District Court for the District of Columbia regarding whether he is immune from congressional testimony as a close advisor to the president, or whether he must testify in the ongoing impeachment inquiry. The House has subpoenaed Kupperman, but the executive argues that he is shielded by testimonial immunity. He now seeks a judgment from the court to resolve the constitutional dispute.

The Ukraine Connection

Giuliani Cannot Rely on Attorney-Client Privilege to Avoid Congressional Testimony

As the House of Representatives launches its impeachment inquiry with a focus on President Trump’s efforts to pressure Ukraine, the question has been raised whether the president’s personal attorney, Rudy Giuliani, will testify before Congress. According to CNN, Giuliani has said that he would need to consult with Trump before testifying before Congress because of the attorney-client privilege.

Executive Power

The Prophylactic Executive Privilege

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.

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