With Democrats dominating Republicans in the House of Representatives 235 to 199, leaving one seat still vacant, and in charge of all relevant committees, incoming committee chairs are expected to lead investigations into President Trump's long-hidden tax returns, possible conflicts of interest from his business empire, and any collusion between Russia and Trump's campaign team during the 2016 election. The White House, in turn, is expected to respond to many probing committee demands by citing "executive privilege," which would likely result in court battles, some of which reminiscent of "Watergate" in 1974.
"Executive privilege" is a power the Chief Executive claims to withhold information from Congress. The president and other members of the executive branch may use this assumed power to resist certain subpoenas and other interventions by the legislative and judicial branches of government in pursuit of information or personnel relating to the executive. Our Constitution does not explicitly mention that Congress or the federal courts have the power to obtain such information, nor is there any explicit mention of an executive privilege to resist such requests from Congress or the courts.
The concept an application of this presumed privilege became never more pretenious than during the Watergate hearings in the House of Representatives, and the consequent Supreme Court case in "United States v. Nixon." It involved the demand by Watergate special prosecutor Archibald Cox that President Richard Nixon produce the audio tapes of conversations he and his colleagues had in the Oval Office in connection with criminal charges being brought against members of his administration. Nixon invoked the privilege and refused to produce any records. Chief Justice Warren Burger, for a unanimous court, wrote that there existed a presidential communication privilege based on the system of separation of powers, which gives each co-equal branch of government broad latitude to function without interference of the other two. However, the Court held ultimately that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence. A related provision, articulated by Judge Patricia Wald of the D.C. Circuit, is the "deliberative process privilege," which holds that government officials should be free to privately deliberate before deciding on a particular course of action. But, again, this privilege disappears when there is any reason to believe that government misconduct occurred.
While "executive privilege" achieved notoriety during "Watergate," its use has by no means been restricted to the Nixon administration. In 1796 President George Washington refused to comply with a request by the House of Representatives for documents relating to the negotiation of the Jay Treaty between the U.S. and Great Britain. Thomas Jefferson refused to testify or provide private letters concerning Aaron Burr in his trial. Although the Supreme Court ruled against him, arguing that the Constitution did not exempt the president from court orders, Jefferson refused to testify personally, but provided selected letters. Between 1955 and 1960 President Eisenhower invoked the claim 44 times, in refusing to comply with subpoenas from the McCarthy Committee for transcripts of monitored telephone calls from Army officials and information on meetings between Eisenhower officials relating to the hearings. More recently, in 1998, President Bill Clinton invoked executive privilege on 14 different occasions, and lost in court when a federal judge ruled that Clinton aids could be called to testify in the Lewinsky scandal.
The current administration has already toyed with the concept. President Trump reportedly instructed or allowed aides to refuse to answer questions during congressional testimony. Both former White House Chief Strategist Steve Bannon and former Attorney General Jeff Sessions refused to answer questions respectively before the House and Senate Intelligence Committee on behalf of the president, "in case he wanted to claim it later." Former New York Mayor and current member of Mr. Trump's legal team Rudy Giuliani already stated publicly that any questions about obstruction related to the Trump presidency would fall under exective privilege, and would therefore go unanswered. As Robert Mueller is said to be close to wrapping up its obstruction inquiry, and is preparing a report of its findings, Trump's lawyers suggest that the information in it is protected by executive privilege. Therefore, the White House contends that it needs to sign off on the report's final version in case the Justice Department chooses to release it to Congress or the public.
Attorney General nominee William P. Barr, while Deputy, before becoming the A.G. during the George H.W. Bush administration, wrote: "Only when the accommodation process fails to resolve a dispute and a subpoena is issued does it become necessary for the president to consider executive privilege." ("Congressional Requests for Confidential Executive Branch Information," June 19, 1989.)
Any assertion of executive privilege may lead to a legal showdown in the courts, and could have serious political consequences. Excessive use of claims could create a weapon for impeachment, as both Clinton and Nixon discovered. With Democrats dominating investigative powers in the House of Representatives, and with jockeying for position in the upcoming 2020 election cycle already in full swing, 2019 could well provide ample fireworks on the hill.
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