Liberal Forum

Cannonpointer » 23 Jan 2020 12:21 pm » wrote:

Misty » 23 Jan 2020 12:01 pm » wrote:It does mention it, but I don't see where they actually invoked it.
I did watch the House impeachment hearings from beginning to end.
On whom did they claim Executive Privilege?
Link?

I linked it already. Telling his minion not to testify on the ground of executive privilege is how it is invoked.

What Is the Process for Asserting Executive Privilege?

Lots of questions have been raised about why certain executive branch officials testifying in recent weeks didn’t answer certain questions.

The process through which the executive branch has considered and addressed executive privilege assertions in the past provides important context.

Understanding how the executive branch decides whether to assert executive privilege begins with understanding how the executive branch approaches congressional oversight requests.

From the executive branch’s perspective, a request (or subpoena) from Congress seeking information that implicates executive branch confidentiality interests (i.e., interests that could potentially be protected by a formal invocation of executive privilege) kicks off a back-and-forth process under which each branch is constitutionally obligated to negotiate in good faith, articulate with particularity their legitimate institutional needs and interests, and weigh the legitimate needs and interests of the other branch.

This is all an effort to reach an accommodation that meets Congress’s legitimate, articulated needs in a way that protects, to the fullest extent possible, important executive branch confidentiality interests.

The executive branch refers to this back-and-forth negotiation as the accommodation process; members of Congress who would like immediate access to the information may be more likely to see it as stonewalling, slow-walking, or obstruction.

This approach to accommodation mirrors the D.C. Circuit’s 1977 direction that, when confronting an inter-branch dispute regarding access to information, “each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation.”

Thus in 1981 the Attorney General described the accommodation process as “not simply an exchange of concessions or a test of political strength” but rather as “an obligation of each branch to make a principled effort to acknowledge, and if possible to meet, the legitimate needs of the other branch.”

Congress has recently approached its subpoenas for executive branch information from an orientation that more closely resembles civil discovery, taking the position that once a subpoena has been issued, the executive branch has an obligation to respond or assert a valid legal basis for not responding by the return date for the subpoena.

By contrast, it is only when this accommodation process has been exhausted and an impasse has been reached that the executive branch typically evaluates whether the president should formally invoke executive privilege.

From the executive branch perspective, flat insistence that an agency must comply with a subpoena by the return date reflects Congress’s failure to engage in good faith in the constitutionally-mandated accommodation process, because it does not seek to understand and accommodate a co-equal branch’s legitimate interests.

This is important because although in civil discovery, a neutral judge is available to mediate disputes between parties, in disputes between Congress and the executive branch, there typically is no judge — indeed, each branch of government often asserts its constitutional right to be the judge of the matter.

The process by which an assertion is made is governed by a 1982 memorandum issued by President Reagan that remains in effect.

The Reagan memo directs the head of an agency that receives a congressional request that raises “a substantial question of executive privilege” to consult with the attorney general and the White House counsel.

If negotiations reach a standstill and these officials conclude that the circumstances warrant invocation of executive privilege, they prepare materials for the White House counsel to present the issue to the president for his or her decision.

Traditionally, this presentation involves a memorandum from the head of the agency that received the congressional request explaining the information sought by Congress, why the information is privileged, and the efforts that the agency has made to date to accommodate the congressional request; a memorandum from the attorney general evaluating the legal basis for a privilege assertion over the requested information, including whether the qualified privilege might be overcome in the balancing of interests and needs; and the White House counsel’s recommendation to the president.

Pending the president’s decision, the agency is directed to ask Congress to hold the request in abeyance, and to explain that this is simply to protect the president’s ability to assert the privilege and does not itself constitute a claim of privilege.

Once the president has formally invoked executive privilege, it is the Department of Justice’s position that officials acting based on that assertion of privilege cannot be prosecuted for contempt of Congress.

This framework fits most naturally with requests for documents: the information sought is known and can be reviewed for how it comports with the legal requirements for asserting executive privilege.

Because documents are within the agency’s possession and control, the agency generally has control of the timing of any disclosure or decision to invoke privilege.

To avoid exposing agency heads to the risk of contempt, the executive branch generally seeks to ensure that any decision regarding whether to invoke the privilege is made before a contempt vote is held.

Fitting this framework to the context of congressional testimony is more complicated, because witnesses do not generally know the questions in advance and it is more difficult to determine whether and when a true impasse in the accommodation process is reached.

The approach taken by administration witnesses to recent questions about their conversations with the President highlight this challenge.

The point at which testifying executive branch officials would be exposed to a risk of contempt is most analogous to the point of impasse for document requests.

Committee rules typically provide that a witness giving compelled testimony cannot be held in contempt for declining to answer a question unless the committee has rejected the proffered reason and afforded the witness a second opportunity to answer. (This is why Lois Lerner, the official at the center of the Internal Revenue Service's 2013 political targeting controversy, was called back to invoke the Fifth Amendment a second time before the House of Representatives found her in contempt.)

Presumably, at least once this stage is reached, there is a clear impasse (and the testifying official would likely want the protection of an assertion of executive privilege before continuing to refuse to answer).

This stage has not been reached for Sessions, Coats, and Rogers.

To start, these administration witnesses were likely appearing voluntarily rather than pursuant to a subpoena.

It is unclear that a witness voluntarily providing testimony can be held in contempt for simply declining to answer a question.

At a minimum, the questioning has not reached a point where the executive branch would traditionally consider invoking executive privilege because it is not clear that the accommodation process has reached an impasse.

Although from a congressional perspective the witnesses could readily have anticipated questions about their conversations with the President and the refusal to answer is frustrating, it is not surprising from an executive branch perspective that the witnesses were not prepared to either assert or waive any privileges with respect to the conversations at this early point.

There has not been a process of back-and-forth negotiations that the executive branch would normally view as a necessary predicate to deciding whether to formally invoke executive privilege.

In preserving the opportunity for the president to determine whether to invoke the privilege, the witnesses’ responses were also consistent with the approach outlined in the Reagan memo, which directs officials to request Congress hold requests in abeyance while the President is evaluating whether to invoke the privilege, and with OLC advice suggesting that the Constitution requires that the president be afforded an adequate opportunity to come to a decision whether to invoke executive privilege.

https://www.lawfareblog.com/primer-exec ... -oversight