Who Can Assert Executive Privilege?

By Big Tent Democrat, Section Law Related
Posted on Sun Jul 08, 2007 at 07:55:54 PM EST
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Update [2007-7-8 21:16:18 by Big Tent Democrat]: On the merits of the executive privilege claim, let me point you to the great analysis of Jack Balkin.

This seems an obvious answer and it is - only the President can assert executive privilege. The context here is the statement by former White House staffer Sara Taylor's lawyer that:

Ms. Taylor expects to receive a letter from [White House Counsel Fred] Fielding on behalf of the President directing her not to comply with the Senate’s subpoena. . . . Absent the direction from the White House, Ms. Taylor would testify without hesitation before the Senate Judiciary Committee. . . [Taylor] faces two untenable choices. She can follow the President’s direction and face the possibility of a contempt sanction by the Senate . . .

Actually, Ms. Taylor has no LEGAL choice in the matter. Executive privilege is not hers to assert. If the White House wishes to assert executive privilege, it must seek a court order quashing the Congressional subpoena on such grounds. The President has NO LEGAL POWER over Ms. Taylor. A Congressional subpoena is binding on Ms. Taylor unless quashed. To coin a phrase, Ms. Taylor has no STANDING to claim executive privilege.

If the President of the United States wishes to assert executive privlege and quash the Congressional subpoena, then he must seek a court order to that effect. This is exactly like the RNC e-mails that the President wishes to claim executive privilege on. The RNC does not work for the President and it can not refuse to honor the Congress' subpoena ABSENT a court order to that effect. Unless of course the Congress stupidly agrees to honor such an assertion. It is possible that the Congress would act that stupidly. Just today Rep. Conyers seem to buy into the idea that Ms. Taylor should not be the target of subpoena enforcement. I can only shake my head at that.

< The Congressional Subpoena Power: How It Is Enforced | Bush Asserts Executive Privilege: How Will Congress Respond? >

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Who Can Assert Executive Privilege? | 22 comments (22 topical)

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Isn't there supposed to be an army (5.00 / 2) (#1)
by andgarden on Sun Jul 08, 2007 at 08:01:12 PM EST

of Democratic lawyers just waiting in the wings to deal with this sort of thing?

Why do our leaders constantly look so weak and incompetent?

The GOP (5.00 / 3) (#2)
by Warren Terrer on Sun Jul 08, 2007 at 08:05:23 PM EST

has lawyers just for the purpose of staging a mock riot. One would think the Democratic party would have lawyers on hand for, you know, legal matters.


to be clear (none / 0) (#3)
by Big Tent Democrat on Sun Jul 08, 2007 at 08:10:57 PM EST

this is different from the Watt and Gorsuch examples of my previous post. They werre then Executive branch employees and were properly instructed by Ronald Reagan, their superior, to assert executive privilege.

At that point, enforcement fell upon the Congress.

But the situation is different here precisely because the President is not Ms. Taylor's superior and can not legally direct her to do anything.

A technical difference but important for forcing the President to go to court to enforce executive privilege.

How it would happen is that a contempt proceeding is brought against Ms. Taylor, maybe this s the case to test out the inherent contempt business, and the President would intervene, in order to assert the executive privilege claim.


: I have to admit (none / 0) (#4)
by andgarden on Sun Jul 08, 2007 at 08:14:54 PM EST

that it would be sort of amusing to see some minor functionary dragged onto the floor of the House for summary sentencing. Smells bad, though.

Very sad (5.00 / 2) (#20)
by Che's Lounge on Mon Jul 09, 2007 at 11:39:51 AM EST

You folks argue over the treatment while your patient lies bleeding to death. None of your legal shenanigans are going to stop the Bush regime.

: Hey Che's Lounge :) (none / 0) (#21)
by Sumner on Mon Jul 09, 2007 at 12:34:46 PM EST

We all pretty much thought that the Constitutional inalienable rights were fixed and permanent and a fait accompli, too.
Sowing despair and hopelessness has long been part of their strategy.
Now consider how both the Russian and Native American Indian preferred tactics have often been said to be "attack, retreat, attack, retreat". Wash. Rinse. Repeat.

So there is no EP power over past employees (none / 0) (#5)
by kovie on Sun Jul 08, 2007 at 09:28:15 PM EST

even if they are going to testify on matters pertaining to their work as administration employees in the past?

This is of course totally aside from classified information that employees would be prohibited from testifying on as per statute and I imagine executive order even if they no longer work for an administration.

I'm talking purely about testimony pertaining to non-classified (but still, in the mind of the administration, confidential) information having to do with their past jobs for the administration, when they no longer work for that administration.

Are you saying that EP simply does not apply and has never been ruled as applying to such situations?

I'm not sure (4.00 / 1) (#6)
by Warren Terrer on Sun Jul 08, 2007 at 09:34:14 PM EST

that that follows, since the executive interest that is being protected doesn't disappear with the end of employment. But it's a good question.


No (none / 0) (#8)
by Big Tent Democrat on Sun Jul 08, 2007 at 09:45:47 PM EST

Bush can claim EP. The point is he has to do it directly, not through the ordering of subordinates.

Taylor is no longer a subordinate.


Got it, thanks (none / 0) (#9)
by kovie on Sun Jul 08, 2007 at 09:58:05 PM EST

EP on former emplotees (none / 0) (#19)
by wlgriffi on Mon Jul 09, 2007 at 10:49:38 AM EST

"No (none / 0) (#8)
by Big Tent Democrat on Sun Jul 08, 2007 at 09:45:47 PM EST

Bush can claim EP. The point is he has to do it directly, not through the ordering of subordinates.
Taylor is no longer a subordinate."

This may be applicable unless the former employee signed a promisory document to not disclose any discussions that took place while employed by the Executive Department. this loophole has been used by corporations and I would think that Bush has employed this dodge also.


: I'm guessing that meritorious subpoenas (none / 0) (#22)
by kovie on Mon Jul 09, 2007 at 02:07:59 PM EST

would trump such binding contracts, if the courts ruled for congress of course. Considering that the fired USA's were political appointees, they were fired for apparently political reasons, and that Taylor was the WH political director, I can see how congress has every right to have her under oath, whatever agreements she had with the administration, signed or unsigned.
Conyers needs to rethink his approach on this one--fast.

I also assume that (none / 0) (#7)
by kovie on Sun Jul 08, 2007 at 09:35:08 PM EST

if Taylor were to refuse to testify on such unmerited grounds, she herself and not the WH would be in contempt of congress, and that it would have to seek recourse by going to the courts to compel her to testify, and that Bush would have to challenge this on an EP basis to block this?

And as a silly aside, has anyone noticed all the Taylors involved in these cases? E.g. Sarah, Jeff (DC USA), Anna Diggs (ACLU distict judge)? Am I missing any?

Conyers (none / 0) (#10)
by squeaky on Sun Jul 08, 2007 at 10:53:08 PM EST

When asked if he would go after Taylor for not testifying, he would not. The executive is the problem, and Taylor is die hard.

I think that it is goading behavior on the part of the units.

Goading for impeachmemt. They know we will lose.

: Perhaps Pelosi (5.00 / 1) (#12)
by kovie on Sun Jul 08, 2007 at 11:16:53 PM EST

will have a talk with him--assuming she's not behind this.
God help us if she is.

Josh Marshall weighs in (none / 0) (#11)
by kovie on Sun Jul 08, 2007 at 11:15:53 PM EST

(July 08, 2007 -- 10:46 PM EST // link)
I'm not usually one for wanting to see people hauled off to the slammer for refusing to do this or that. But please, please haul Sara Taylor off to the slammer.
Taylor, you may know, is the former White House political director. Taylor has been subpoenaed to testify on Capitol Hill on Wednesday. And she claims she's quite willing to do so as she's done nothing wrong. But the White House is urging her to ignore the subpoena. And since, in the words of Taylor's lawyer, the president is "a person whom [Taylor] admires and for whom she has worked tirelessly for years", she doesn't want to testify and thinks she shouldn't have to.
Pleading the fifth is on the books. Various privileges, though most are bogus, can be asserted and litigated. But being a member of the Bush personality cult just isn't a reason to refuse to testify.
Not yet at least.
-- Josh Marshall

Is Conyers for real on this? Huh?

: Josh is right on target here (none / 0) (#17)
by aj12754 on Mon Jul 09, 2007 at 06:31:21 AM EST

Where did Taylor get the idea that really really liking someone trumps a subpoena. She's probably consulting the guiding light of the legal world, Monica Goodling.

I wonder (none / 0) (#13)
by pontificator on Sun Jul 08, 2007 at 11:45:20 PM EST

Whether WHite House employees sign any sort of employment contract which could expose them to contractual penalties should they refuse to honor a White House directive, post termination of employment, not to testify on grounds of executive privilege?

Shouldn't pass the civil (none / 0) (#14)
by oculus on Sun Jul 08, 2007 at 11:49:55 PM EST

service smell test, assuming she was civil service, that is.


I don;t think (none / 0) (#15)
by pontificator on Sun Jul 08, 2007 at 11:55:49 PM EST

White House employees are part of the civil service, since they are considered political appointees. Otherwise they couldn;t be fired when a new President is sworn in.

I expanded on my question here:

http://www.dailykos.com/story/2007/7/9/03232/22016


: you meant (none / 0) (#16)
by Goldfish on Mon Jul 09, 2007 at 04:32:44 AM EST

not part of the civil service, right?

He's not saying (none / 0) (#18)
by Deconstructionist on Mon Jul 09, 2007 at 07:38:59 AM EST

the ability to assert EP is eliminated because the person summoned is a former employee rather than a current employee.

He's saying that the person summoned cannot directly assert EP because it can only be asserted by the president. This would hold true whether or not the person summoned is currently employed by the executive branch in a position within the ambit of EP.

In other word he is saying that if Congress forces the issue BUSH would have to assert EP in a motion seeking a court order to quash the subpoena of one of his advisors but that the advisor (current or former) has no independent standing to quash on EP grounds because the privilege must be asserted by the President who heads the executive branc and it does not belong to the subordinates.

The law of EP is extremely undeveloped (because one side or the other or both generally blink and "compromise" EP disputes prior to the judicial branch weighing in.

What would be interesting is a scenario where the person summoned wanted to testify and resisted an effort to quash a subpoena by the President.