White House Conference Call on Executive Privilege

Ed Morrisey has a wrap-up. Captain Ed found this analysis on executive privilege and the ability of Congress to compel compliance with any subpoenas. The relevant sections:

Most importantly, compelling compliance with a congressional subpoena in this context would be difficult. The civil contempt mechanism normally available to Congress, see 28 U.S.C. § 1365, specifically exempts subpoenas to the executive branch. The criminal contempt mechanism, see 2 U.S.C. § 192, which punishes as a misdemeanor a refusal to testify or produce documents to Congress, requires a referral to the Justice Department, which is not likely to pursue compliance in the likely event that the President asserts executive privilege in response to the request for certain documents or testimony. Thus, the only legal way to enforce this subpoena would be to hold a witness in contempt using its “inherent contempt authority,” but this would require a contempt trial on the floor of the Senate. ...

Executive privilege is used by the President and the executive branch to shield presidential communications, advice, and national security information from disclosure in judicial proceedings, congressional investigations and other arenas. While the proper scope of executive privilege is the subject of much debate, at a minimum, it covers presidential communications, and may also protect the decision-making, or deliberative process, of the executive branch in general.

Courts have recognized a “presumptive privilege” for presidential communications that is grounded in “a President’s generalized interest in confidentiality” and is viewed as important to preserving the candor of presidential advisors and protecting the freedom of the president and his advisors to “explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” U. S. v. Nixon, 418 U.S. 683, 708, 711 (1974); In re Sealed Case, 121 F.3d 729, 743 (D.C. Cir. 1997). This privilege is “inextricably rooted in the separation of powers under the Constitution” and “flow[s] from the nature of enumerated powers” of the President. Id., 418 U.S. at 705; 121 F.3d at 743.(emphasis added)

This memo was written on Sept, 23, 1999 and its author is:


Senator Patrick "Idiot" Leahy. Not only is the man an idiot--he is a hypocrit.