More On Claiming Executive Privilege

Paul Kiel goes through some of the basics with law professors Lederman and Turley.

First question, can Sara Taylor testify in spite of the WH's "direction" on executive privilege (note: I think the question is backwards, can Taylor NOT testify based on that direction. I say no.):

First, although the president has "directed" Sara Taylor, Karl Rove's former aide, and Harriet Miers, the former White House counsel, not to testify, the decision is still up to them, both said. Although the traditional expectation is that aides will comply with determinations of executive privilege by the president, both could still refuse. It would be a "career ending move" to be sure, Turley added, but there is no legal impediment.

Honestly, I do not agree with the notion that a former aide can rely on a "direction," which seems to be the implication of Turley and seemingly, Lederman. I think the proper course is this:

Even if Taylor decided to defy the president's direction and testify, the White House would surely seek to bar her testimony in court through a restraining order, an injunction, or some other means, both experts agreed.

Precisely. It is up to the WH now to assert its privilege. Taylor has no privilege to assert. More.

The profs continue:

But if Taylor refuses to testify, then the ball's in Congress' court. First, Senate Judiciary Committee Chairman Patrick Leahy (D-VT), whose committee issued the subpoena to Taylor, would have to seek a citation of contempt, first with a vote in committee, and then in the Senate. (House Judiciary Chair John Conyers said yesterday that he would not cite Taylor, but it's not his call to make.)

True enough, but the professors seem to operating from the position that Taylor can defend the executive privilege claim. She cannot as I understand the law. The White House would have to assert the privilege. I do not follow the profs' thinking at all here.

Strangely enough, I think Professor Lederman's post here is an excellent exposition of what can be done by the Congress. This is the best route in my opinion:

Third, and most likely, Congress could file a civil action in federal court seeking declaratory relief, or an injunction requiring enforcement of its subpoena. Although I'm not aware of any statute that expressly grants the courts jurisdiction over such suits, both Congress and the Executive branch have filed suits of this sort in the past, asserting federal question jurisdiction under 28 U.S.C. 1331. The courts in such cases have not expressly reach edthe question of whether section 1331 jurisdiction is apposite. See Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973) (holding that the $10,000 jurisdictional amount in controversy requirement then in the statute (it's since been eliminated) was not satisfied); United States v. House of Representatives, 556 F. Supp. 150 (D.D.C. 1983) (in which DOJ took the position that the controversy arose under the Constitution and laws of the United States, but the court did not reach the merits -- it dismissed the suit "until all possibilities for settlement have been exhausted"; and DOJ did not appeal). Alternatively, if a contempt citation is issued against a former government official, such as Harriet Miers, she might initiate litigation in federal court seeking to quash the citation or have it declared unlawful. Or, in the unlikely event that it appears a former official such as Miers is inclined to comply with the subpoena, the U.S. itself might try to go to court to enjoin such compliance. See U.S. v. AT&T, 567 F.2d 121 (D.C. Cir. 1977).

This seems exactly right to me.

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  • Display: Sort:
    I think the question is simple. (none / 0) (#1)
    by Kitt on Mon Jul 09, 2007 at 06:45:27 PM EST
    Can Sara Taylor claim 'executive privilege?

    Assertion of Executive Privilege (none / 0) (#2)
    by Justina on Mon Jul 09, 2007 at 07:54:23 PM EST
    I would suggest that since neither Taylor or Miers is the president, they cannot assert the executive privilege. Only the president has the privilege.

    Wouldn't the president have to move to quash the subpoenas in federal court on the grounds that they are barred by executive privilege?

    If the president fails to gets the subpoenas quashed, Taylor and Miers would have to comply or face contempt.  I don't see how either of them could defend against the contempt on the grounds of executive privilege, which they do not have.

    And, since neither are current government employees, it would seem that neither could defend against contempt based on a "direction" of the president since they are no longer agents of the president.

    Claiming Executive Privilege (none / 0) (#3)
    by DanAllNews on Mon Jul 09, 2007 at 11:10:29 PM EST
    In "asserting executive privilege", at least in this case, isn't the White House basically stating its intent to fight the subpoenas -- whatever that fight may entail -- and presuming it will prevail in the courts?