Title: Congressional Subpoena Power and Executive Privilege: The Coming Showdown Between the Branches - Lawfare
Headings: Congressional Subpoena Power and Executive Privilege: The Coming Showdown Between the Branches
Congressional Subpoena Power and Executive Privilege: The Coming Showdown Between the Branches
The Basics
Civil Enforcement Actions
Legislative Attempts to “Strengthen” the Subpoena Power
What is the Trump Administration’s Policy on Executive privilege?
Other Examples of the Trump Administration’s Approach to Executive Privilege
Going forward, what does it all mean?
Conclusion
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Content: But if the executive branch is not inclined to prosecute a contemnor (the contemnor is a person or entity who is guilty of contempt before a judicial or legislative body), Congress will have a difficult time implementing such a penalty. Congress can also file a lawsuit asking a judge to order the witness to provide the information, raising the additional possibility of imprisonment for contempt of court. A valid assertion of executive privilege provides a lawful basis to decline to answer a congressional subpoena for testimony or documents. At its most basic, executive privilege is the proposition that certain confidential or sensitive communications within the executive branch are constitutionally protected from compelled disclosure to the executive’s coequal branches—Congress and the courts. There is no mention of executive privilege in the United States Constitution—rather, it is a principle implied in the Constitution’s separation of powers. Bies identifies the five general types of executive privilege that the executive branch has claimed in the past: presidential communications, deliberative process, attorney-client communications, law enforcement investigations, and sensitive military, diplomatic and national security information. But the precise contours of any executive privilege are contested, and the executive branch, the courts and Congress tend to take divergent positions that favor their respective constitutional roles. Civil Enforcement Actions
In the landmark case of United States v. Nixon, the Supreme Court ruled that it had authority to resolve the conflict between President Richard Nixon and Special Prosecutor Archibald Cox, who had been appointed to investigate the Watergate affair, over the issue of executive privilege. Cox had obtained a grand jury subpoena requiring Nixon to deliver to the district court tape recordings of various meetings with assistants.