DOCSLIB.ORG

The Executive's Privilege

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Executive's Privilege SHAUB IN PRINTER FINAL_9.22.20 (DO NOT DELETE) 9/22/2020 2:41 PM Duke Law Journal VOLUME 70 OCTOBER 2020 NUMBER 1 THE EXECUTIVE’S PRIVILEGE JONATHAN DAVID SHAUB† ABSTRACT Both the executive branch and Congress claim the final word in oversight disputes. Congress asserts its subpoenas are legally binding. The executive branch claims the final authority to assert executive privilege and, accordingly, to refuse to comply with a subpoena without consequence. These divergent views stem in large part from the relative absence of any judicial precedent, including not a single Supreme Court decision on the privilege in the context of congressional oversight. In that vacuum—unconstrained by precedent—the executive branch has developed a comprehensive theory of executive privilege to support and implement prophylactic doctrines that render Congress largely powerless in oversight disputes. For the first time, this Article sets out the full extent of the executive branch’s doctrine, the various pieces of which have been expressed in OLC opinions, letters to Congress, and court filings. Existing Copyright © 2020 Jonathan David Shaub. † Assistant Professor, University of Kentucky J. David Rosenberg College of Law; J.D., Northwestern Pritzker School of Law; B.A., Vanderbilt University. This article concerns congressional oversight disputes on which I worked as an Attorney-Adviser in the Office of Legal Counsel at the U.S. Department of Justice, but none of the information contained in this article is confidential or subject to any claim of privilege. This paper benefitted mightily from numerous conversations with and comments from my OLC colleagues, particularly Amin Aminfar, John Bies, Martine Cicconi, Kirti Datla, Adele El-Khouri, Caroline Flynn, Troy McKenzie, Annie Owens, Matt Roberts, and Shalev Roisman. I also owe a debt of gratitude to Paul Colborn for introducing me to executive privilege and for his insight into the development of executive branch precedent in this area. The country is a better place because of longtime career public servants such as Paul. I owe additional thanks to the Lawfare team—Benjamin Wittes, Quinta Jurecic, and Margaret Taylor, in particular—for encouraging me to write and think through these issues, and to Marty Lederman for his enthusiastic support and insightful comments. The article benefitted additionally from comments by Mark J. Rozell and Mitchel A. Sollenberger. Finally, I can’t thank the team at the Duke Law Journal enough for their insightful comments and edits. SHAUB IN PRINTER FINAL_9.22.20 (DO NOT DELETE) 9/22/2020 2:41 PM 2 DUKE LAW JOURNAL [Vol. 70:1 scholarship largely ignores this doctrine and addresses executive privilege on the basis of two unexamined premises: first, that the privilege is an affirmative constitutional authority belonging to the president, and, second, that the privilege is akin to an evidentiary privilege that protects specified categories of information. Moreover, existing scholarship rarely distinguishes between executive privilege in the context of judicial proceedings and congressional oversight. Rejecting those premises, this Article proposes an understanding of executive privilege specific to congressional oversight that better reflects history and first principles of constitutional interpretation. Executive privilege in the context of congressional oversight is not an affirmative constitutional authority based on specific types of information but a limited presidential immunity from compelled congressional process— the Executive’s privilege. Both Congress’s oversight authority and executive privilege are recognized as implied constitutional authorities. But rather than infer two competing affirmative authorities, this Article proposes to infer a limit—presidential immunity—on the first. Doing so is more consonant with first principles of constitutional interpretation, more consistent with history, and more conducive to the proper balance of power between the branches. The Executive’s privilege, as set out in this Article, is an immunity contingent upon a president’s finding that concrete, identifiable harm would result from the disclosure of specific information to Congress. Understanding executive privilege as a limited immunity—and severing the privilege from the undifferentiated confidentiality interests and broad categories of information with which the executive branch has conflated it— eliminates the prophylactic doctrines on which the executive branch relies to thwart legitimate congressional oversight. Further, this understanding of the privilege provides a theoretical foundation to explain why it does not apply in impeachment, a position consistent with the historical understanding of Congress’s broad powers of inquiry during impeachments and subsequent trials. SHAUB IN PRINTER FINAL_9.22.20 (DO NOT DELETE) 9/22/2020 2:41 PM 2020] THE EXECUTIVE’S PRIVILEGE 3 TABLE OF CONTENTS Introduction ................................................................................................ 4 I. The Executive Branch Doctrine .......................................................... 8 A. A Single, Constitutional Privilege Composed of Multiple “Components” ........................................................................ 10 1. The Emergence of “Components” .................................... 12 2. The Expansion of the Components and Separation of Presidential Communications .......................................... 15 3. Defining the Scope of the Components ............................ 19 4. Showing of Need Necessary To Overcome Various Components ....................................................................... 21 B. The President’s Sole Prerogative: Asserting Executive Privilege and Controlling Information ................................ 23 II. The Practice of Executive Privilege: Congressional Impotence and the Prophylactic Executive Privilege........................................... 27 A. The Ubiquity of Executive Privilege in Congressional Oversight ................................................................................. 28 B. Congressional Impotence ...................................................... 34 1. Congress’s Tools of Inquiry ............................................... 35 2. Congress’s Lack of Enforcement Authority ..................... 41 C. Prophylactic Executive Privilege .......................................... 55 1. Protecting the President’s Prerogative: Executive Privilege as a “Last Resort” ............................................................. 57 2. Protecting the President’s Prerogative: Absolute Authority To Control the Dissemination of Information ............... 61 3. Protecting the President’s Prerogative: Prophylactic Doctrines ............................................................................ 62 III. The Executive’s Privilege ................................................................ 70 A. The Executive’s Privilege as Immunity from Congressional Oversight Process ................................................................... 73 1. An Immunity Grounded in Historical Practice ............... 73 2. A Contingent Immunity ..................................................... 78 B. The Executive’s Privilege and Impeachment ...................... 83 Conclusion ................................................................................................. 91 SHAUB IN PRINTER FINAL_9.22.20 (DO NOT DELETE) 9/22/2020 2:41 PM 4 DUKE LAW JOURNAL [Vol. 70:1 [Executive privilege] in its modern form was born of honorable intent, the desire of the Eisenhower administration to protect its officials from the attacks of the late Senator McCarthy. The “cure,” however, has proven to be as deadly as the disease, as executive privilege, both formally and informally invoked, has ripened into a highly effective means of nullifying the investigatory function of Congress. In neither logic, law, or practice can there exist simultaneously an effective power of legislative oversight and an absolute executive discretion to withhold information. Inevitably, one must give way to the other and the only question is which one is to be dispensed with. —Senator J. W. Fulbright, 19711 INTRODUCTION The “[a]bility to control what information to disclose and when to disclose it is a potent political weapon,” wrote Archibald Cox, the special prosecutor in the Watergate scandal and the victim of the Saturday Night Massacre, in 1974.2 In the digital age—where fleeting thoughts or statements become “information” that is preserved and searchable—those words have only become more true. When used by the executive branch, this potent political weapon is currently known as executive privilege. The executive branch claims that executive privilege is an affirmative constitutional authority belonging to the president to control the dissemination of certain information.3 Congress, on the other hand, understands executive privilege to be a limited evidentiary privilege, “a relatively nebulous, constitutional privilege that protects [only] the confidentiality of presidential 1. Executive Privilege: The Withholding of Information by the Executive: Hearing on S. 1125 Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 92d Cong. 24 (1971) [hereinafter Executive Privilege Hearings] (statement of Sen. J.W. Fulbright). 2. Archibald Cox, Executive Privilege, 122 U. PA. L. REV. 1383, 1433 (1974); Evan Andrews, What Was the Saturday Night Massacre?, HIST. (Oct. 18, 2019), https://www.history.com/news/what-
Load more

Recommended publications
  • Business and Environmental Policy American and Comparative Environmental Policy Sheldon Kamieniecki and Michael E
    Business and Environmental Policy American and Comparative Environmental Policy Sheldon Kamieniecki and Michael E. Kraft, series editors Russell J. Dalton, Paula Garb, Nicholas P. Lovrich, John C. Pierce, and John M. Whiteley, Critical Masses: Citizens, Nuclear Weapons Production, and Environmental Destruction in the United States and Russia Daniel A. Mazmanian and Michael E. Kraft, editors, Toward Sustainable Communities: Transition and Transformations in Environmental Policy Elizabeth R. DeSombre, Domestic Sources of International Environmental Policy: Industry, Environmentalists, and U.S. Power Kate O’Neill, Waste Trading among Rich Nations: Building a New Theory of Environmental Regulation Joachim Blatter and Helen Ingram, editors, Reflections on Water: New Approaches to Transboundary Conflicts and Cooperation Paul F. Steinberg, Environmental Leadership in Developing Countries: Transnational Relations and Biodiversity Policy in Costa Rica and Bolivia Uday Desai, editor, Environmental Politics and Policy in Industrialized Countries Kent Portney, Taking Sustainable Cities Seriously: Economic Development, the Environment, and Quality of Life in American Cities Edward P. Weber, Bringing Society Back In: Grassroots Ecosystem Management, Accountability, and Sustainable Communities Norman J. Vig and Michael G. Faure, eds., Green Giants? Environmental Policies of the United States and the European Union Robert F. Durant, Daniel J. Fiorino, and Rosemary O’Leary, eds., Environmental Governance Reconsidered: Challenges, Choices, and Opportunities Paul A. Sabatier, Will Focht, Mark Lubell, Zev Trachtenberg, Arnold Vedlitz, and Marty Matlock, eds., Swimming Upstream: Collaborative Approaches to Watershed Management Sally K. Fairfax, Lauren Gwin, Mary Ann King, Leigh S. Raymond, and Laura Watt, Buying Nature: The Limits of Land Acquisition as a Conservation Strategy, 1780–2004 Steven Cohen, Sheldon Kamieniecki, and Matthew A.
    [Show full text]
  • The Velocity of Censorship
    The Velocity of Censorship: High-Fidelity Detection of Microblog Post Deletions Tao Zhu, Independent Researcher; David Phipps, Bowdoin College; Adam Pridgen, Rice University; Jedidiah R. Crandall, University of New Mexico; Dan S. Wallach, Rice University This paper is included in the Proceedings of the 22nd USENIX Security Symposium. August 14–16, 2013 • Washington, D.C., USA ISBN 978-1-931971-03-4 Open access to the Proceedings of the 22nd USENIX Security Symposium is sponsored by USENIX The Velocity of Censorship: High-Fidelity Detection of Microblog Post Deletions Tao Zhu David Phipps Adam Pridgen [email protected] Computer Science Computer Science Independent Researcher Bowdoin College Rice University Jedidiah R. Crandall Dan S. Wallach Computer Science Computer Science University of New Mexico Rice University Abstract terconnected through their social graph and tend to post about sensitive topics. This biases us towards the content Weibo and other popular Chinese microblogging sites are posted by these particular users, but enables us to mea- well known for exercising internal censorship, to comply sure with high fidelity the speed of the censorship and with Chinese government requirements. This research discern interesting patterns in censor behaviors. seeks to quantify the mechanisms of this censorship: Sina Weibo (weibo.com, referred to in this paper sim- how fast and how comprehensively posts are deleted. ply as “Weibo”) has the most active user community of Our analysis considered 2.38 million posts gathered over any microblog site in China [39]. Weibo provides ser- roughly two months in 2012, with our attention focused vices which are similar to Twitter, with @usernames, on repeatedly visiting “sensitive” users.
    [Show full text]
  • How White Supremacy Returned to Mainstream Politics
    GETTY CORUM IMAGES/SAMUEL How White Supremacy Returned to Mainstream Politics By Simon Clark July 2020 WWW.AMERICANPROGRESS.ORG How White Supremacy Returned to Mainstream Politics By Simon Clark July 2020 Contents 1 Introduction and summary 4 Tracing the origins of white supremacist ideas 13 How did this start, and how can it end? 16 Conclusion 17 About the author and acknowledgments 18 Endnotes Introduction and summary The United States is living through a moment of profound and positive change in attitudes toward race, with a large majority of citizens1 coming to grips with the deeply embedded historical legacy of racist structures and ideas. The recent protests and public reaction to George Floyd’s murder are a testament to many individu- als’ deep commitment to renewing the founding ideals of the republic. But there is another, more dangerous, side to this debate—one that seeks to rehabilitate toxic political notions of racial superiority, stokes fear of immigrants and minorities to inflame grievances for political ends, and attempts to build a notion of an embat- tled white majority which has to defend its power by any means necessary. These notions, once the preserve of fringe white nationalist groups, have increasingly infiltrated the mainstream of American political and cultural discussion, with poi- sonous results. For a starting point, one must look no further than President Donald Trump’s senior adviser for policy and chief speechwriter, Stephen Miller. In December 2019, the Southern Poverty Law Center’s Hatewatch published a cache of more than 900 emails2 Miller wrote to his contacts at Breitbart News before the 2016 presidential election.
    [Show full text]
  • Argumentative Euphemisms, Political Correctness and Relevance
    Argumentative Euphemisms, Political Correctness and Relevance Thèse présentée à la Faculté des lettres et sciences humaines Institut des sciences du langage et de la communication Université de Neuchâtel Pour l'obtention du grade de Docteur ès Lettres Par Andriy Sytnyk Directeur de thèse: Professeur Louis de Saussure, Université de Neuchâtel Rapporteurs: Dr. Christopher Hart, Senior Lecturer, Lancaster University Dr. Steve Oswald, Chargé de cours, Université de Fribourg Dr. Manuel Padilla Cruz, Professeur, Universidad de Sevilla Thèse soutenue le 17 septembre 2014 Université de Neuchâtel 2014 2 Key words: euphemisms, political correctness, taboo, connotations, Relevance Theory, neo-Gricean pragmatics Argumentative Euphemisms, Political Correctness and Relevance Abstract The account presented in the thesis combines insights from relevance-theoretic (Sperber and Wilson 1995) and neo-Gricean (Levinson 2000) pragmatics in arguing that a specific euphemistic effect is derived whenever it is mutually manifest to participants of a communicative exchange that a speaker is trying to be indirect by avoiding some dispreferred saliently unexpressed alternative lexical unit(s). This effect is derived when the indirectness is not conventionally associated with the particular linguistic form-trigger relative to some context of use and, therefore, stands out as marked in discourse. The central theoretical claim of the thesis is that the cognitive processing of utterances containing novel euphemistic/politically correct locutions involves meta-representations of saliently unexpressed dispreferred alternatives, as part of relevance-driven recognition of speaker intentions. It is argued that hearers are “invited” to infer the salient dispreferred alternatives in the process of deriving explicatures of utterances containing lexical units triggering euphemistic/politically correct interpretations.
    [Show full text]
  • Fewer Hands, More Mercy: a Plea for a Better Federal Clemency System
    FEWER HANDS, MORE MERCY: A PLEA FOR A BETTER FEDERAL CLEMENCY SYSTEM Mark Osler*† INTRODUCTION .......................................................................................... 465 I. A SWAMP OF UNNECESSARY PROCESS .................................................. 470 A. From Simplicity to Complexity ....................................................... 470 B. The Clemency System Today .......................................................... 477 1. The Basic Process ......................................................................... 477 a. The Pardon Attorney’s Staff ..................................................... 478 b. The Pardon Attorney ................................................................ 479 c. The Staff of the Deputy Attorney General ................................. 481 d. The Deputy Attorney General ................................................... 481 e. The White House Counsel Staff ................................................ 483 f. The White House Counsel ......................................................... 484 g. The President ............................................................................ 484 2. Clemency Project 2014 ................................................................ 485 C. The Effect of a Bias in Favor of Negative Decisions ...................... 489 II. BETTER EXAMPLES: STATE AND FEDERAL .......................................... 491 A. State Systems ................................................................................... 491 1. A Diversity
    [Show full text]
  • Israeli Media Self-Censorship During the Second Lebanon War
    conflict & communication online, Vol. 18, No. 2, 2019 www.cco.regener-online.de ISSN 1618-0747 Sagi Elbaz & Daniel Bar-Tal Voluntary silence: Israeli media self-censorship during the Second Lebanon War Kurzfassung: Dieser Artikel beschreibt die Charakteristika der Selbstzensur im Allgemeinen, und insbesondere in den Massenmedien, im Hinblick auf Erzählungen von politischer Gewalt, einschließlich Motivation und Auswirkungen von Selbstzensur. Es präsentiert zunächst eine breite theoretische Konzeptualisierung der Selbstzensur und konzentriert sich dann auf seine mediale Praxis. Als Fallstudie wurde die Darstellung des Zweiten Libanonkrieges in den israelischen Medien untersucht. Um Selbstzensur als einen der Gründe für die Dominanz hegemonialer Erzählungen in den Medien zu untersuchen, führten die Autoren Inhaltsanalysen und Tiefeninterviews mit ehemaligen und aktuellen Journalisten durch. Die Ergebnisse der Analysen zeigen, dass israelische Journalisten die Selbstzensur weitverbreitet einsetzen, ihre Motivation, sie zu praktizieren, und die Auswirkungen ihrer Anwendung auf die Gesellschaft. Abstract: This article describes the characteristics of self-censorship in general, specifically in mass media, with regard to narratives of political violence, including motivations for and effects of practicing self-censorship. It first presents a broad theoretical conceptualization of self-censorship, and then focuses on its practice in media. The case study examined the representation of The Second Lebanon War in the Israeli national media. The authors carried out content analysis and in-depth interviews with former and current journalists in order to investigate one of the reasons for the dominance of the hegemonic narrative in the media – namely, self-censorship. Indeed, the analysis revealed widespread use of self-censorship by Israeli journalists, their motivations for practicing it, and the effects of its use on the society.
    [Show full text]
  • Certainty and the Censor's Dilemma Robert Corn-Revere
    Hastings Constitutional Law Quarterly Volume 45 Article 4 Number 2 Winter 2018 1-1-2018 Certainty and the Censor's Dilemma Robert Corn-Revere Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Robert Corn-Revere, Certainty and the Censor's Dilemma, 45 Hastings Const. L.Q. 301 (2018). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol45/iss2/4 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Certainty and the Censor's Dilemma by ROBERT CORN-REVERE* Pity the plight of poor Anthony Comstock. The man H. L. Mencken described as "the Copernicus of a quite new art and science," who literally invented the profession of antiobscenity crusader in the waning days of the nineteenth century, ultimately got, as legendary comic Rodney Dangerfield would say, "no respect, no respect at all." As head of the New York Society for the Suppression of Vice, and special agent for the U.S. Post Office under a law that popularly bore his name, Comstock was, in Mencken's words, the one "who first capitalized moral endeavor like baseball or the soap business, and made himself the first of its kept professors."' For more than four decades, Comstock terrorized writers, publishers, and artists-driving some to suicide-yet he also was the butt of public ridicule.
    [Show full text]
  • Euphemism in Animated Films a Multimodal And
    Seeing the unseen: Euphemism in Animated Films A Multimodal and Critical Discourse Study by Dalia Abyd Asseel M.A. (Linguistics) A thesis submitted in partial fulfilment of the requirements for the degree of Doctor of Philosophy in THE DEPARTMENT OF LINGUISTICS AND ENGLISH LANGUAGE LANCASTER UNIVERSITY, UK JULY 2020 Abstract Animated films are contemporary popular cultural products recreating the ‘real’ world and engaging massive worldwide audiences of adults and children. Children as the ostensible viewers of animated films may acquire their cultural and ideological knowledge and beliefs about the world from the representations in animated films. Although during the past decade animated films have increasingly been the focus of attention of researchers across different disciplines, including education, gender, sexuality and literacy, studies tackling the discourse and language of animated films are still in their early stages. More specifically, very few studies have investigated the use of euphemism as a major micro-level linguistic device reflecting macro-level discourse and extending to sociocultural structures. To this end, this thesis examines euphemism constructed through the discourse of animated films by employing the strategies of Critical Discourse Studies (CDS). Moreover, Multimodal Discourse Analysis (MDA) is employed to examine discursive strategies involving visual representations accompanying euphemism and what underpins those strategies, and to shed light on the multimodal relations between the representation of both. Euphemism is frequently associated with the notion of taboo. Consequently, new words or phrases are designated to refer to linguistic taboos as alternatives used by speakers to minimise the threat to the audience’s face as well as to their own.
    [Show full text]
  • Some Means of Compulsion Are Essential To
    ªSome Means of Compulsion are Essential to Obtain What is Neededº: Reviving Congress's Oversight Authority of the Executive Branch by Imposing Fines for Non-Compliance with Congressional Subpoenas MAX G. LESSER* INTRODUCTION Congressional oversight has played a critical role in uncovering wrongdoing in the executive branch, from the historic corruption of the Teapot Dome Scandal to the presidential abuses of power in Watergate. Underpinning these investigations has been the Supreme Court's long-standing recognition of the broad oversight authority possessed by Congress, which empowers the body to compel testimony and documentation.1 Possessing investigative power allows Congress to ful®ll several critical responsibilities. First, Congress can oversee whether the laws it passes are being faithfully executed, in terms of how ªeffectively, ef®ciently, and frugally the executive branch is carrying out congressional mandates.º2 Second, Congress can identify any executive misconduct, such as ªpoor administration, arbitrary and capricious behavior, abuse, waste, dishonesty, and fraud.º3 Third, Congress can utilize the information gained from investigative oversight to address issues through appropriate legislation, the body's core constitutional function. For these reasons, the Supreme Court has described congressional over- sight as ªessentialº4 for the Article I branch of our government. When congressional oversight faces resistance, the contempt power provides Congress a tool for coercing compliance and punishing those who obstruct its investigations.5 The power has generally been utilized to address non-compliance with a congressionally issued subpoena, and has historically been enforced by the * J.D., Georgetown University Law Center (expected May 2022); M.S.Ed., Hunter College of The City University of New York - Graduate School of Education (2016); B.A., The George Washington University (2014).
    [Show full text]
  • Memorial Struggles and Power Strategies of the Rights in Latin America Today
    http://doi.org/10.17163/uni.n31.2019.01 Memorial struggles and power strategies of the rights in Latin America today Luchas memoriales y estrategias de poder de las derechas en América Latina hoy Verónica Giordano Teacher and Researcher UBA and CONICET [email protected] Orcid code: https://orcid.org/0000-0001-7299-6984 Gina Paola Rodríguez Teacher and Researcher UNLPam and UBA [email protected] Orcid code: https://orcid.org/0000-0002-1702-3386 Abstract Recently, right-wing forces of different origins and types have sprung up in Latin America. In this article, four countries are studied: Argentina, Brazil, Colombia and Peru. The first two correspond to cases in which the right-wing groups stand in opposition to the so-called progressive governments. The other two correspond to cases in which they stand in a political system with a strong continuity of predominance of right-wing forces. Since there are few studies with an overall perspective, this article seeks to make a contribution in that direction. The objective is to analyze the non-electoral strategies of construction and/ or exercise of power implemented by the right-wing groups around the memorial struggles. Based on the review of journalistic sources and speeches of the national right-wing referents, this article analyzes how current right-wing groups have proceeded to the institution of languages and the definition of a field of meanings that dispute the meaning of the recent past. From a comparative perspective, it is argued that in all four cases negationism offers an effective repertoire for these groups, which is used in their non- electoral (as well as electoral) strategies for building hegemony at the cultural level.
    [Show full text]
  • Conversations with Bill Kristol
    Conversations with Bill Kristol Guest: Adam J. White Research Scholar, American Enterprise Institute Executive Director, George Mason Law School’s C. Boyden Gray Center Taped September 11, 2019 Table of Contents I. On the Supreme Court Today (0:15 – 44:19) II: The Conservative Legal Movement (44:19 – 1:21:17) I. On the Supreme Court Today (0:15 – 44:19) KRISTOL: Hi, I’m Bill Kristol. Welcome to CONVERSATIONS. I’m joined by my friend, Adam White, who has recently moved from The Hoover Institution to The American Enterprise Institute, where you’re – what’s your distinguished title there? Visiting? Resident Scholar? WHITE: Resident Scholar. KRISTOL: Did you have the same high title at Hoover, or was it just a visiting scholar? You were a resident scholar there. [Laughter] WHITE: I felt appreciated at Hoover too. KRISTOL: That’s good, yes. Anyway AEI has a new program in Social, Cultural and Constitutional Studies, which is great and you’re going to be a key part of that. You’ve obviously been a very – a lawyer and a commentator on all matters legal, judicial, the courts and the administrative state for The Weekly Standard and many other journals. And we had a conversation previously about the courts and the administrative state, before the Trump administration began I guess, I think – right? WHITE: Yeah. KRISTOL: But today we’re going to talk about the Judiciary. Kind of an important topic, a key talking point of Trump supporters, and maybe legitimately so. And I guess I’d like to begin with sort of 30,000 feet.
    [Show full text]
  • Immunity of the Director of the Office of Political Strategy and Outreach from Congressional Subpoena
    Immunity of the Director of the Office of Political Strategy and Outreach from Congressional Subpoena The Assistant to the President and Director of the Office of Political Strategy and Out- reach (“OPSO”) is immune from the House Committee on Oversight and Government Reform’s subpoena to compel him to testify about matters concerning his service to the President in the OPSO. July 15, 2014 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT You have asked whether Assistant to the President and Director of the Office of Political Strategy and Outreach (“OPSO”) David Simas is legally required to appear to testify at a congressional hearing scheduled for July 16, 2014, in response to a subpoena issued to Mr. Simas by the House Committee on Oversight and Government Reform on July 10, 2014. We understand that the Committee seeks testimony about “whether the White House is taking adequate steps to ensure that political activity by Administration officials complies with relevant statutes, including the Hatch Act,” and about “the role and function of the White House Office of Political Strategy and Outreach.” Letter for David Simas from Darrell Issa, Chairman, Committee on Oversight and Government Reform, House of Representatives (July 3, 2014) (“Invitation Letter”). For the reasons set forth below, we believe that Mr. Simas is immune from compulsion to testify before the Committee on these matters, and therefore is not re- quired to appear to testify in response to this subpoena. I. A. The Executive Branch’s longstanding position, reaffirmed by numer- ous administrations of both political parties, is that the President’s im- mediate advisers are absolutely immune from congressional testimonial process.
    [Show full text]