Latest in Executive Privilege
The argument that the Senate should decline to seek specific evidence relevant to impeachment in order to protect the presidency’s generalized institutional interests badly distorts executive privilege.
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.
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?
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.
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.
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.
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.