Latest in Executive Privilege
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.
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.
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.
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.
The Department of Justice has informed the House Oversight and Reform Committee that President Trump has exerted executive privilege over certain documents subpoenaed by the committee regarding the administration's decision to include a question about U.S. citizenship in the 2020 census. The letter can be read here and below.
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.
At 10:00 a.m. on Wednesday, the House Committee on the Judiciary will hear testimony from legal experts on the issue of executive privilege and congressional oversight. A video of the hearing is available below.
Witnesses include Kate Shaw of Benjamin N. Cardozo School of Law; Paul Rosenzweig of R Street Institute, and a contributing editor of Lawfare; Jonathan Turley of George Washington University Law School; and Neil Kinkopf of Georgia State University College of Law.
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
On Wednesday, Attorney General Bill Barr sent a letter to the president requesting that he invoke executive privilege over the Justice Department documents related to the Mueller report that the House Judiciary Committee has requested. The letter is below.
On Wednesday, Assistant Attorney General for the Office of Legislative Affairs Stephen Boyd transmitted a letter to House Judiciary Committee Chairman Jerrold Nadler notifying Nadler that the president was invoking executive privilege over the unredacted Mueller report in response to Nadler's scheduling of a vote to hold Attorney General Bill Barr in contempt. The letter is below.