SCOTUSblog by Steve Vladeck 10/16/2019
As much as it is discussed and debated, especially lately, there is remarkably little case law concerning “executive privilegeâ€â€”the idea that there are at least some internal executive branch communications that are shielded against compelled disclosure. The Supreme Court has decided exactly one case involving the privilege, and even that decision—in the Watergate tapes case, United States v. Nixon—raised as many questions as it answered. One reason courts have historically had so little to say about the privilege is because, as the Congressional Research Service explained in 2014, “[t]he vast majority of these disputes are resolved through political negotiation and accommodation.†Most privilege claims arise in disputes between Congress and the executive branch, and most of the time, the involved parties are able to reach some kind of compromise—or the relevant administration and/or Congress ends—before the dispute is conclusively settled by the courts. That’s why the most voluminous discussions of executive privilege have come in memoranda by the Justice Department’s Office of Legal Counsel—rather than judicial decisions.
But “political negotiation and accommodation†have not exactly characterized the relationship between the Trump administration and the House of Representatives over the past nine months. As a growing list of witnesses have refused to appear before Congress or turn over requested documents, the House has issued a steadily increasing number of subpoenas, which has in turn provoked litigation over the scope of Congress’ subpoena power and, in some circumstances, whether and to what extent executive privilege provides a defense even against duly issued subpoenas. Last Friday, a divided panel of the U.S. Court of Appeals for the D.C. Circuit decided the first of these disputes, holding that President Donald Trump could not block one of his accounting firms from complying with a subpoena for financial records in the firm’s possession because the subpoena was within Congress’ authority to issue. And that ruling came on the heels of an eye-opening letter sent last Tuesday by White House Counsel Pat Cipollone to House Speaker Nancy Pelosi and three House committee chairs, suggesting that the White House will not comply with any information requests related to a potential impeachment inquiry.
For now, at least, these disputes are pitched at a categorical level. If and when courts reach specific claims of executive privilege, they’ll find some clarity, but also a series of open questions, in the relevant case law. The following post tries to clarify what’s been settled and what hasn’t.
1. The Supreme Court and executive privilege
More:
https://www.scotusblog.com/2019/10/executive-privilege-congress-subpoena-power-and-the-courts-a-brief-overview-of-a-complex-topic/#more-289720
