But there is no historical or theoretical support for considering that limitation to apply to impeachment as well.
And, for the same reason, this would also eliminate related prophylactic doctrines, such as immunity, from the context of impeachment. Executive privilege remains such a controversial but nevertheless unresolved constitutional doctrine in part because, in the past, much of the practice of congressional oversight has been driven by norms and politics.
Although constitutional theories regarding executive privilege have long existed, negotiation, normative expectations and political pressures have traditionally been the means by which disputes between Congress and the executive have ultimately been resolved.
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The Supreme Court has never addressed a dispute over executive privilege between the executive branch and Congress. And only one appellate court—during the unique circumstances of the Watergate scandal—has ever resolved the merits of such a dispute. Moreover, it also includes the authority to adopt unqualified prophylactic measures to protect that underlying, qualified privilege.
The era of compromise and accommodation between branches—and the lack of judicial intervention—may be coming to an end.
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Now, all House committees have subpoena authority, which can largely be exercised by the chairperson alone , and the executive branch considers the return date of a subpoena essentially meaningless. Recent practice during the George W.
Bush and Obama administrations was to assert executive privilege over specific documents only when the committee scheduled a contempt vote. But that norm has too begun to shift. The Trump administration has furthered existing prophylactic doctrines and created new ones that allow it to refuse to turn over information or provide testimony without a formal assertion of privilege, even in the face of a contempt vote. As a result, a number of cases are currently pending that may force the courts to resolve, or at least address, the constitutional contours of executive privilege that have, to date, remained unexplored by the judiciary.
As a career attorney in the Office of Legal Counsel OLC , I worked closely with officials in the Department of Justice and the White House on congressional oversight requests and appropriate responses, including numerous questions of privilege.
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My tenure included the aggressive oversight of the Obama administration by the Republican-controlled House, as well as the transition to the Trump administration and the development of oversight policies at the start of that administration. Informing each of these conversations and decisions was the extensive doctrine of executive privilege that the executive branch—primarily through formal opinions and informal advice from OLC—has developed over the past four decades. But as he wrote, that practice should not be conflated with constitutional power without further inquiry.
It was too malleable, too responsive to political pressure, too extreme in some ways and too restrictive in others. I had an idea about a more accurate theoretical understanding of executive privilege that would provide clearer boundaries, eliminate the prophylactic doctrines that dominate the practice of oversight, better reflect history, and more consistently adhere to first principles of constitutional interpretation. And watching the implementation and further development of the executive branch theory over the past two years has only reinforced my original inclinations, even if it has made discussing executive privilege in a neutral, considered way much more difficult.
The closest thing is the opinion by the U. Court of Appeals for the D. Circuit in the Senate Select case during Watergate, but, when that case made it to the D. Circuit, the House already had the information that was at issue—the White House tapes—as part of its impeachment inquiry. In other words, that opinion did not address a situation in which the executive branch asserted a constitutional right to withhold information from Congress entirely, just a situation in which the executive branch asserted the authority to withhold the information from a particular committee.
And it arose out of facts that are hard to analogize to typical oversight disputes.
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A second premise underlies the discourse and practice of executive privilege as well. Executive privilege is considered, at least in part, an evidentiary privilege related to the type of information sought. My paper posits that both of these underlying premises are incorrect, or at least imprecise. They should be revisited if, or when, a court addresses an oversight dispute on the merits. Their error results from the conflation of the historical concept of executive privilege—a doctrine exercised on a case-by-case basis in light of particular factual circumstances—with executive evidentiary privileges applicable in judicial proceedings and designed to protect and balance general, undifferentiated interests of the government.
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Executive privilege in the specific context of congressional oversight is a doctrine about the respective authority of the two branches. And if one is on the business end of a congressional subpoena, one does well to take it seriously. Finally, Congress can request a court order commanding the subpoenaed target to comply. The validity of executive privilege claims is rarely litigated because the threat of constitutional crisis hangs over any assertion of power by one branch over another. Politics is thus the primary method of adjudicating these competing claims—and politics favors the popular.
It is essential to the protection of the community against foreign attacks. The Constitution does not charge him with defending the nation, prosecuting foreign wars, receiving and acting on intelligence briefings, or appointing Supreme Court justices. He should execute his oversight responsibilities with the dignity, humility, and seriousness befitting his office. After all, he is easily replaceable in his next election. Craig Trainor is a criminal defense and civil rights attorney in New York City. Twitter: TrainorLaw. Send a question or comment using the form below.
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Executive privilege won’t shield Trump from the impeachment inquiry
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